Phil Taylor

Phil Taylor is a Weekend Herald and New Zealand Herald senior staff writer.

Time for next move, says ex-judge

A retired judge tells Phil Taylor New Zealand needs an independent system to investigate suspected miscarriages of justice

Sir Thomas Thorp. Photo / Martin Sykes
Sir Thomas Thorp. Photo / Martin Sykes

A decade after he recommended New Zealand set up an independent commission to investigate claims of miscarriages of justice, Sir Thomas Thorp says the case is even stronger.

Thorp conducted a review in 2003-2004 comparing New Zealand's system of dealing with claimed miscarriages of justice with those in Scotland and England and published his findings in 2006, recommending New Zealand followed suit. Based on the experience of those countries, he estimated there were likely to be at least 20 innocent people in jail here.

Thorp, who spent 31 years as a Crown prosecutor before serving for 17 years as a High Court judge, told the Herald that he had looked at the Scottish and New Zealand criminal justice systems again in 2010 and concluded that "the Scottish procedures have succeeded in identifying and correcting many times as many miscarriages as we do". On average referrals by the Scottish Criminal Cases Review Commission had resulted in four wrongful convictions being corrected each year, compared to New Zealand's rate of one every two years under the Royal Prerogative of Mercy system. Differences between the two countries' criminal justice systems largely cancelled each other out.

Scotland provided a useful comparison because it has a similar prison population and criminal justice system, although it has the additional safeguard of the decision to prosecute being made by a person independent of the police, whereas in New Zealand such separation applies in only a small minority of cases.

Several politicians have recommended that a commission independent of the Justice Ministry be set up as was the Justice and Law Reform Committee under the last Labour Government, but there has been no action.

Justice Minister Judith Collins does not see the need and reportedly said that an independent commission would not end debate about controversial cases. In rejecting a recent call by the Police Association for an inquiry into Teina Pora's conviction for the 1992 rape and murder of Susan Burdett, she said the current system of detecting miscarriages of justice was working. "New Zealand has an independent, highly regarded judiciary, with a robust appeal process for people who feel they have been wrongly convicted."

Thorp, who visited Scotland and England during his research, told the Herald he could not see anything that "suggests we are so much superior in our justice system".

Concerns that a commission would become bogged down by unworthy cases was not supported by the experience of the Scottish Criminal Cases Review Commission, Sir Thomas said. The number of applications it received had remained much the same since its inception in 1999, averaging about 125 a year, the proportion referred to the courts was slightly down at 5.5 per cent according to its 2012-2013 annual report, but the success rate of those referred was up with all five convictions being overturned.

Thorp said recent commendation of the Scottish commission by that country's Appeal Court had been "clearly earned". The Appeal Court described the commission's record as "impressive". In rejecting an application for it to throw out two referrals on the basis of the need for finality and certainty in criminal proceedings, the court said the commission had properly balanced that along with the interests of justice in each case. It also noted that the fear the courts would be inundated with cases referred back to it had not happened.

The Scottish commission has a staff of 14 and a budget of £1 million [$1.9 million]. Before setting up commissions to look into possible miscarriages, Scotland and England operated systems similar to New Zealand's Royal Prerogative. Here that is operated by the Justice Ministry, which has two staff dedicated to the task. The ministry oversees the process and recommends to the Governor-General whether to refer a case back to the courts.

One reason Thorp identified for the low proportion of claims of miscarriage here was that Maori and Pacific Island inmates, who together make up more than 60 per cent of our prison population, very rarely made claims.

The current system relies heavily on white knights willing to work for little payment, Queen's Counsel Nigel Hampton told the Herald.

Examples included former detective, the late Bryan Rowe in the case of Rex Haig, cleared of murder; a scientist, a journalist and a lawyer in the case of David Doherty, cleared by DNA of the rape of an 11-year-old girl; and, in Pora's case, private detective Tim McKinnel and barrister Jonathan Krebs.

"Unless you have got that, you are lost in this system," said Hampton, who represented Peter Ellis. "Appeals no matter what you say about them are argued as matters of law. They are not a wide-ranging review of the facts, which is what is required and is exactly what a review commission looks at, and that is the gap in our system at the moment."

"Yes we do have a robust judiciary, but they are not able to look at what is being asked for," Hampton said. "My concerns are heightened by what has happened with the Teina Pora case." Thorp said that based on the published material Pora's convictions "looks like an appropriate case to go before an independent tribunal such as a cases review commission".

Hampton said Scotland provided an indication of the workload and cost "and it is not outrageous at all". But he is not surprised by a lack of political will. "I take that back to the political inertia on both sides and the adamant refusal to look at Peter Ellis [the Christchurch creche case]. So it goes back nigh on 20 years."

It became apparent then that the courts couldn't deal with the factual reviews that were being asked of it, he said. "And nothing has been done. You get some lip service from some politicians when they are in opposition but it's a different matter when they are the government of the day. I don't understand it. I've never had an explanation except the one Judith Collins has come out with; that we have a good system."

Hampton said he wasn't aware of anyone who had examined the Scottish system and said it wouldn't work here. "So what is the problem? I don't know."

After four years compiling a claim, Pora has put aside his application for the Royal Prerogative of Mercy in favour of an appeal to the Privy Council in London. He recently applied for leave to appeal; the Crown, which twice successfully prosecuted him for the murder and rape, has filed a submission opposing.

Malcolm Rewa, whose semen was found in the victim's body, was convicted of Ms Burdett's rape. He was also convicted of sex offences against 24 other women, all committed acting alone.

Tim McKinnel, the private investigator who took up Pora's cause four years ago, said his experience of the process "says pretty clearly to me that the system isn't necessarily designed to deal with an individual's factual innocence... It leaves a convicted person who may well be innocent having to rely on support from experts, investigators and lawyers who are prepared to work for nothing, and that is not a proper functional system."

Those claiming to have been wrongly convicted were usually incapable of advancing the case themselves. The few cases where miscarriages had been acknowledged, all had people who fought for them at all costs, he said. "Not everybody has that and if you don't it is incredibly difficult." A review commission would be able to compel witnesses, properly fund experts and require evidence to be provided.

McKinnel, a former detective who began investigating the case because of disquiet among police officers when Pora was convicted for a second time, said they had twice had to sue police to force evidence to be handed over, a process that took a year. "After four years we still don't have all the evidence we have asked for."

McKinnel, who has a young family, estimates legal aid had covered between a quarter and a third of the work he and barrister Jonathan Krebs had done. If he had the time over, financial necessity would require finding a different approach. "I don't know how someone who isn't extremely financially secure could take a case like this on, knowing what I know now. The commercial side of my business has at times been funding the investigation in to what happened to Teina Pora."

"Ironically we are now at the pointy end of this where we have the Crown's full attention and their resources have swung in behind opposing Teina's application for leave to appeal, and we are in a funding vacuum."

McKinnel said there may be a greater need in New Zealand for an independent criminal cases review commission because of the high proportion of Maori and Pacific Islanders in prison. He suspects they are less likely to seek to correct miscarriages of justice because of "cultural factors" and a lack of faith in the system. "Teina is a perfect example."


For

Politicians in favour of an independent criminal cases review commission:

National
• Richard Worth, former Justice spokesman;
• Don Brash, former party leader

Labour
• Justice and Law Reform Committee, 2005
• Charles Chauvel, former associate Justice spokesman;
• Andrew Little, current Justice spokesman

- NZ Herald

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