By ANGELA GREGORY AND NZPA
A law expert believes the Privy Council will uphold "embarrassing" claims that the New Zealand Court of Appeal discriminated against high-profile criminals by refusing them legal aid.
In London this week, four lawyers representing 13 convicted New Zealand criminals successfully argued for a full Privy Council hearing into their claims that Court of Appeal legal aid procedures were a "sham."
They argued that the petitioners, including serial rapist Malcolm Rewa and convicted murderers Aerengaroa Timoti and Ian Johnston, had been treated unfairly.
Victoria University law lecturer John Miller said it was significant that the Privy Council had agreed to hear the case, and he expected the defence lawyers to win. They raised a valid point that there should not be one law for the rich and one for the poor.
Mr Miller said the Court of Appeal often rejected legal aid applications by criminals seeking to appeal against their convictions.
While everyone had the right of appeal, the chance of a hearing was seriously diminished without legal representation.
Criminals were left to prepare appeal documents themselves and the results, which were often inadequate or off at a tangent, were regarded unfavourably by the court.
"Unless a lawyer has filled in the grounds why there had been a wrong conviction, then the appeal will be dealt with fairly swiftly on the papers ... that's the poor person's appeal."
In contrast, a rich person's appeal would include substantial submissions which went through trial documents and notes of evidence.
While he acknowledged that the Court of Appeal usually correctly recognised where a person had no chance of appeal, its practice of denying legal aid undermined important principles of law.
"Why give people the right of appeal when you know they can't use it ... it's spurious ... like saying the Ritz Hotel is open to anyone."
Mr Miller said the Government had already foreseen the problem and last year introduced the Crimes (Criminal Appeals) Bill to clarify procedures dealing with criminal appeals.
Once passed, the retrospective legislation would prevent all but the 13 criminals named in the Privy Council case from taking action should it succeed.
Mr Miller said there was a risk that aggrieved criminals could have clogged up the courts with compensation claims for breach of their rights and applications to the Governor-General to have appeals reheard.
Rewa's lawyer, Barry Hart, told the Weekend Herald from London yesterday that he felt positive the Privy Council members had understood the complex arguments.
Appeals by those needing legal aid had been dismissed without an open hearing, without the appellant appearing, and with scant reason.
Mr Hart said that by denying legal aid, the Court of Appeal was effectively disposing of the appeal, and that breached the Bill of Rights.
If successful the 13 criminals represented would be entitled to an appeal.
The Privy Council hearing will probably be held in July or October.
The Solicitor-General, Terence Arnold, QC, had argued that Appeal Court judges rejected legal aid cases only where there were no arguable grounds for appeal.
Mr Arnold told the law lords the court was legally entitled to dismiss "frivolous or vexatious" appeals without the appellant attending a hearing.
"In effect that is what is actually occurring in these cases."
Taxpayers are footing the bill for taking the case to London, as the lawyers were granted legal aid backing by Attorney-General Margaret Wilson, who gave the petition a certificate of exceptional public importance.
The Chief Justice, Dame Sian Elias, was to have considered the petition as a privy councillor, but opted not to when an objection pointed out her conflict of interest. In effect, she heads the Appeal Court.
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