Forms of Assistance
New Zealand can offer a broad range of assistance to other countries. The Mutual Assistance in Criminal Matters Act 1992 (“MACMA”) sets out the criteria for New Zealand to provide specific kinds of assistance. However, section 5 allows that other forms of assistance to be provided on a case by case basis.
Some forms of assistance can be provided when a criminal matter is only being investigated while others require that charges have been laid. For some types of assistance, MACMA requires that the relevant offence is punishable by at least a certain term of imprisonment under the law of the requesting country or relates to serious drug dealing.
Locating or identifying persons
Where a request relates to a criminal matter (an investigation or prosecution) New Zealand can assist in locating or identifying persons if there are reasonable grounds to believe they are in New Zealand and could provide relevant evidence or assistance (see section 30 of MACMA).
Service of process
Similarly, service of process on a person in New Zealand can be done where no court proceedings have begun and regardless of the seriousness of the offence as long as there are reasonable grounds for believing that the person to be served is in New Zealand and, where the request is to serve a summons, subject to an undertaking that no penalty will be imposed for non-attendance (see sections 51 and 52 of MACMA).
Assistance with obtaining evidence
Assistance with obtaining evidence can only be given where court proceedings have been instituted in the foreign country. New Zealand can assist in arranging the production of documents or other articles in New Zealand pursuant to section 31 of MACMA. However, there need to be reasonable grounds for believing that the documents can be produced in New Zealand.
The request must also relate to criminal proceedings in the requesting country. “Criminal proceedings” is defined in MACMA as proceedings certified by the Central Authority of the requesting country to have been instituted in respect of an offence committed, or suspected on reasonable grounds to have been committed, against the law of the country; and includes the trial of a person for the offence and any proceedings to determine whether or not a person should be tried for the offence.
This form of assistance involves having witnesses give evidence before a Registrar (court clerk) here in New Zealand and then providing a copy of the evidence given to the requesting country (see sections 31 – 36 of MACMA).
Where items cannot be obtained by consent, MACMA allows for the New Zealand authorities to apply to a court for a search warrant pursuant to a mutual assistance request. That can be done where the matter is still at the investigation stage in the requesting country or when court proceedings have begun. However, in either case, the offence being investigated must be punishable by two years imprisonment or more and there must be reasonable grounds for believing that an article or thing relevant to the proceedings is in New Zealand. Once the New Zealand police make the application for a search warrant, the court then makes the final decision about whether the warrant should be issued. The court will also consider the reasonable grounds standard and it is therefore important that requests include as much information as possible about why the material sought is believed to be at a particular place in New Zealand and would provide evidence of the commission of an offence (see sections 43 of MACMA). Search warrants for proceeds of crime are dealt with under section 59 of MACMA.
Restraint and recovery of proceeds of crime
New Zealand can also provide assistance with the restraint and recovery of the proceeds of crime. The request process for this is set out in MACMA, although some of the details for how these orders are enforced within New Zealand are found in the Criminal Proceeds (Recovery) Act 2009.
New Zealand can apply to a court to register a foreign restraining order (an order effectively ‘freezing’ a person’s assets until the criminal proceedings can be heard) where the request from the foreign country relates to a “significant foreign criminal activity” (the proceeds being of $30,000 or more and punishable by a minimum term of four years imprisonment) and there are reasonable grounds to believe that some or all of the property is located in New Zealand (see section 54 of MACMA).
New Zealand can also seek to register a forfeiture order (an order making specified property the property of the state because it facilitated the commission of crime) or pecuniary penalty order (an order making property that represents the benefit of crime payable to the state). This can only be done where a person has been convicted of the offence in respect of which the order was made; the relevant offence is punishable by a term of five years imprisonment or more under the law of the requesting country; the appeal process is exhausted; and there are reasonable grounds for believing some or all of the property is in New Zealand.
Where a country is requesting New Zealand to take steps to register a foreign proceeds of crime order, a sealed or authenticated copy of the order should be sent to New Zealand (for authentication, see section 63 of MACMA).
In proceeds of crime cases, MACMA only authorises the Attorney-General to apply to the Court to have an order registered. The final decision is for the Court. The Attorney-General might not always be successful in his or her application to have a foreign orders registered. If that is the case, an appeal may be taken but again there is no guarantee of success.
If a forfeiture order or pecuniary penalty order is successfully registered in New Zealand, some or all of the named assets may be returned to the requesting country.
Once a request has been made to the Attorney-General from another country, section 27 of MACMA sets out the matters that require a request to be refused, and those matters which may lead to a request being refused.
The matters which require a request to be refused are:
- The request relates to the prosecution or punishment of a person for an offence that is, or is by reason of the circumstances in which it is alleged to have been committed or was committed, an offence of a political character; or
- There are substantial grounds for believing that the request has been made with a view to prosecuting or punishing a person for an offence of a political character; or
- There are substantial grounds for believing that the request was made for the purpose of prosecuting, punishing or otherwise causing prejudice to a person on account of the person’s colour, race, ethnic origin, sex, religion, nationality, or political opinion; or
- The request relates to the prosecution of a person for an offence in a case where the person has been acquitted, convicted or pardoned by a competent tribunal or authority; or has undergone in New Zealand or elsewhere the punishment provided by law for that offence or another offence made up of the same act or omission (i.e. the rule against double jeopardy); or
- The request relates to the prosecution of a person in respect of an act or omission that, if it had occurred in New Zealand, would have constituted an offence under the military law of New Zealand but not also under the ordinary criminal law of New Zealand; or
- The granting of the request would prejudice the sovereignty, security, or national interests of New Zealand; or
- In the case of a request made pursuant to section 37 or section 38 of MACMA, for the attendance of any person in that foreign country, the person to whom the request relates is not prepared to give his or her consent to the transfer; or
- The request is for assistance of a kind that cannot be given under MACMA, or would require steps to be taken for its implementation that could not lawfully be taken.
As these are mandatory grounds of refusal, to the extent possible, requests should stipulate that the above grounds do not apply (i.e. the Central Authority assures New Zealand that this offence is not one of political character).
A proceeding certified by the Central Authority of the requesting party to have been instituted in respect of the forfeiture or restraint of property that is, or is suspected of being, tainted property; property of a person who has unlawfully benefited from significant foreign criminal activity; an instrument of crime; or property that will satisfy all or part of a foreign percuniary penalty order, will be treated as a criminal proceeding despite being civil in nature (see section 2B(3)).
Requests may be refused by the Attorney-General when:
- The request relates to the prosecution or punishment of a person in respect of conduct that, if it had occurred in New Zealand, would not have constituted an offence against New Zealand law; or
- The request relates to proceedings of the kind described in section 2B(3) in respect of conduct that, if it had occurred in New Zealand would not have constituted significant criminal activity; or
- The request relates to the prosecution or punishment of a person in respect of conduct that occurred, or is alleged to have occurred, outside the foreign country and similar conduct occurring outside New Zealand in similar circumstances would not have constituted an offence against New Zealand law; or
- The request relates to proceedings of the kind described in section 2B(3) in respect of conduct that occurred, or is alleged to have occurred, outside the foreign country and similar conduct occuring outside New Zealand in similar circumstances would not have constitutd significant criminal activity; or
- The request relates to proceedings of the kind described in section 2B(3) in respect of conduct that, if it had occurred in New Zealand at the same time, could not have been the subject of proceedings of that kind because of lapse of time or for any other reason;
- The request relates to the prosecution or punishment of a person in respect of conduct where, if it had occurred in New Zealand at the same time and had constituted an offence against New Zealand law, the person responsible could no longer be prosecuted by reason of lapse of time or for any other reason; or
- The request relates to the prosecution or punishment of a person for an offence in respect of which the person may be sentenced to death in that requesting country, and that requesting country is unable to sufficiently assure the Attorney-General that the person will not be sentenced to death or, if that sentence is imposed, it will not be carried out; or
- In the case of a request under section 38 of MACMA to arrange the attendance of a person who is a prisoner, a request may be refused if it would not be in the public interest; would not be in the interests of the person to whom the request relates; the provision of the assistance requested could prejudice a criminal investigation or criminal proceedings in New Zealand; or the provision of assistance would prejudice, or would be likely to prejudice, the safety of any person; or
- The provision of the assistance would impose an excessive burden on the resources of New Zealand or relates to a matter that is trivial in nature; (no request shall be refused under this ground unless the Attorney-General has first consulted with the requesting country about the terms and conditions on which the request may be complied with, and the Attorney-General has been unable to reach agreement with the requesting country); or
- The request does not comply with the requirements of section 26 of MACMA which sets out the required form of a request. See How do foreign countries make requests for assistance to New Zealand? Again, no request shall be refused on this ground without prior consultation with the requesting country.
MACMA also governs mutual assistance requests that New Zealand makes to other countries. It essentially allows for New Zealand to request other countries to fulfil requests for the same kinds of assistance New Zealand can provide for other countries. While the assistance available from other countries varies, many countries can provide similar forms of assistance to those provided by New Zealand.
While MACMA does not set out the form that responses to New Zealand’s mutual assistance requests should be in, they are governed by a number of statutes and common law rules, in particular the Evidence Act 2006. New Zealand’s system has quite strict requirements about what form documents need to be in, in order to be admissible in court. That is why New Zealand’s requests often specify in some detail the form in which a response should be provided.