Potential to deny a defendant their right to a fair trial


The bill as introduced would make the prerecording of cross-examination a matter of entitlement, rather than at the discretion of a judge taking into account the particular circumstances of the case and the witness in question.

The reason that prerecording of cross-examination should remain rare and exceptional is its significant potential to deny a defendant their right to a fair trial, as protected by the New Zealand Bill of Rights Act 1990 (NZBORA). Partly this is because pre-trial recording affords no opportunity for the defendant to question a witness based on the conduct of the trial.

It is problematic that the Bill appears to be inconsistent in this respect with NZBORA, given the right of a person “to be present at the trial and to present a defence” under section 25(e) of NZBORA.

Supplementary Order Paper No 5 (released 19 February 2021) – New Zealand Legislation

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