Bringing justice to injustice

A new, independent Crown body that will have the power to send potential miscarriages of justice back to an appeal court is on track to begin receiving applications from July 1, writes Mike Munro.

The New Zealand Criminal Cases Review Commission has been many years in the making, its back story marked by simmering disquiet over those cases where the system has failed to protect the innocent –notable cases being Rex Haig, Teina Pora and David Dougherty.

When Justice Minister Andrew Little sought Cabinet’s approval in 2018 to establish the CCRC, his paper cited long-running concerns about the “independence, timeliness, quality and fairness of investigations into miscarriages of justice under the status quo”.

New Zealand’s justice system has rights of appeal and various procedural safeguards against unsafe convictions.

They include the ability for anyone who believes they have suffered a miscarriage of justice to be able to apply to the Governor-General for the exercise of the Royal prerogative of mercy.

By convention, the Governor-General acts on the advice of the Justice Minister, who in turn engages both Ministry of Justice legal experts and others. If an application is upheld, the Royal prerogative can be exercised to grant a pardon, or refer the applicant’s conviction or sentence to the relevant appeal court.

However, the record shows the Royal prerogative of mercy is both failing to receive, and to encourage, applications from Māori and Pasifika - their proportion of applications has been estimated at between 11 and 16 per cent, despite making up more than 60 per cent of New Zealand's prison population.

The grant of a pardon is extremely rare. The last person pardoned on the basis of a wrongful conviction was Arthur Allan Thomas, in 1979.

However, the power to refer is exercised more regularly, with a conviction or sentence having gone back to the courts on 16 occasions since 1995.

From July 1, that referral power will sit with the CCRC.

As an independent Crown entity, it has its own legislation and will operate in a framework that is independent of ministers, the courts and relevant state agencies such as the Ministry of Justice, Police and Corrections.

In February the Government announced that Colin Carruthers QC will be its chief commissioner. He will head a board of commissioners, whose appointments will be considered by Cabinet this month.

At least one member of the board must have knowledge or understanding of te ao Māori and tikanga Māori, at least one-third must be legally qualified, and at least two-thirds must have experience of having worked in the criminal justice system.

Carruthers has deep experience in civil and criminal law. He has led high-profile defence and prosecution cases throughout his career, including as counsel for commissioner (the late) Sir Ron Davison in the Winebox Inquiry, the 1990s’ probe into overseas company taxation.

Teina Pora. Photo: Getty Images

The CCRC will be based in Hamilton, a decision designed to underline its independence by distancing it from the main bureaucratic and judicial centres of Wellington and Auckland.

Its primary function will be to investigate and review convictions and sentences and decide whether or not to refer them back to the Appeal Court or the High Court.

Anyone who believes they have suffered a miscarriage of justice will be able to apply – no fees are payable, and they won’t need a lawyer.

In deciding whether to refer a conviction or sentence, the CCRC must have regard to whether the applicant has exercised their rights of appeal; the extent to which the application relates to new evidence or a question of law; and the prospects of the appeal succeeding.

It also has powers to initiate inquiries into matters that may be seen to be common features in cases involving a miscarriage of justice, and it can compel people to produce documents, be interviewed, or examined under oath.

A requirement to educate the public about its functions is another of its statutory duties.

Key decisions about the new entity’s functions, its visual identity, how it will operate, receive applications and make decisions, and how it will recognise the interests of those affected by the application are close to being finalised.

Carruthers is being supported in the set-up phase by an Establishment Advisory Group, the members of which he has described in a CCRC newsletter as accomplished and diverse, “each...brings a unique background and perspective to their work.”

Three of the group – criminal defence lawyer Nigel Hampton QC, forensic science expert Dr Anna Sandiford, and police officer turned investigator Tim McKinnel – have been part of the NZ Public Interest Project (NZPIP), set up in 2015 to consider cases of possible wrongful conviction.

Until now the NZPIP has attempted to plug the gap left by the absence of a criminal cases review commission.

The other three members of the CCRC advisory group are Professor Tracey McIntosh, co-head of the School of Maori Studies and Pacific Studies at the University of Auckland, Dr Tamasailau Suaalii-Sauni, associate professor of criminology at the University of Auckland; and Professor Elisabeth McDonald, a professor of law at the University of Canterbury.

Miscarriages of justice often generate a sense of compelling drama.

Cases such as the Birmingham Six and Guildford Four, involving wrongful convictions for pub bombings in England in the 1970s, have been the subject of myriad books, research projects, movies and television documentaries.

The Azaria Chamberlain-dingo case, which saw one parent found guilty of murder and the other of an accessory to murder after the fact – new evidence later absolved them both – kept Australia, and New Zealand for that matter, captivated for years.

Arguably the most infamous New Zealand case was that of Arthur Allan Thomas, wrongfully convicted twice of a double homicide in the Waikato district of Pukekawa in 1968. He was given a Royal pardon after spending nine years in jail, and was later paid compensation of nearly $1m.

Other prominent cases, as mentioned, have been Rex Haig, David Dougherty and Teina Pora – Andrew Little has described Pora as “the victim of one of New Zealand’s worst miscarriages of justice.”

Pora spent 21 years in prison after being wrongfully convicted of the 1992 murder of Susan Burdett. The fight to have Pora’s conviction quashed took six years. He eventually received a compensation package of $3.5m.

Accused of raping an 11-year old girl in West Auckland in 1992, Dougherty was also one who was convicted and jailed for a crime he did not commit. In 1997 he was acquitted after a retrial, and later awarded nearly $870,000 in compensation.

Rex Haig was wrongfully jailed for 10 years for the murder of Mark Roderique, a crew member on Haig's fishing boat. The Court of Appeal quashed the murder conviction in 2006.

These cases, and others, have seen the miscarriage of justice cause taken up by civil society groups, such as NZPIP and the Innocence Project New Zealand, based at the University of Otago, but also MPs, journalists, academics and members of the legal profession. A common complaint has been the system’s perceived lack of independence.

As Little’s 2018 Cabinet paper noted: “Perceptions matter...in my view, public confidence will be enhanced by the establishment of a CCRC that, in its day to day operations, is seen to be clearly independent of Ministers and officials.”

Mike Munro is a former journalist and Beehive staffer who is now on the establishment team for the NZ Criminal Cases Review Commission

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