THE ABSOLUTE ANONYMITY OF A STATE WITNESS

Abstract

An important facet of the principle of open justice is the right of the accused to challenge the evidence given against him or her. When a witness testifies anonymously, the potential exists for an improper infringement of this right. Although the right to challenge evidence is not absolute, it is not easy to identify the circumstances that would provide justification for an infringement of this essential right. While the interests of justice is a determining factor, it is necessary for legislation to be put into place to set out specific circumstances to guide the courts whether or when to allow anonymous testimony. In addition, provision should be made for the appointment of an independent investigator to assist the court to investigate the credibility of the witness. Further, if witness anonymity orders are limited to serious cases and only allowed in exceptional circumstances, there is no reason why anonymous testimony should not be allowed.