An independent body to review miscarriages of justice looks set to be able to consider privileged or confidential information such as lawyer-client communications - as long as a judge gives the green light.

The ability of the Criminal Cases Review Commission to consider such information is considered vital as it could be the difference between leaving a potentially innocent prisoner behind bars or referring a case for appeal.

A bill to establish the commission originally said that protected information could be withheld, but the justice select committee report on the bill is now recommending that a District Court judge could overrule that.

Such information could include communications between a lawyer and client, between a person and a religious minister, self-incriminatory information, or information that could reveal a journalist's source.


The commission is part of the Labour-NZ First coalition agreement and the Government wants it to be in place by July next year.

The justice committee endorsed the recommended changes to the bill but was evenly split on whether the bill should progress; National MPs made up half of the committee and said the commission was unnecessary.

But the bill is still likely to pass with the support of Labour, NZ First and the Greens.

Justice Minister Andrew Little has previously said there was almost certainly innocent people in jail, and the commission is seen as easing the burden for those seeking to overturn unjust convictions or sentences.

Little has said that overturning wrongful convictions should not have to rely on well-meaning people like Tim McKinnel, who championed Teina Pora's case for eight years.

Pora was eventually compensated $3.5 million after spending 20 years in prison for a crime he did not commit.

Teina Pora was given $3.5 million in compensation after being wrongly convicted and imprisoned for 20 years. Photo / Michael Craig
Teina Pora was given $3.5 million in compensation after being wrongly convicted and imprisoned for 20 years. Photo / Michael Craig

The commission would not be able to review innocence or guilt, but would review suspected miscarriages of justice and could send cases to the appeal courts.

It would comprise between three and seven members and would be independent of other government agencies and the Government.


It would partially replace the Governor-General's royal prerogative of mercy, though that could still be used to grant a full pardon.

The justice committee has previously heard submissions about the importance of hearing protected information.

It has recommended that a judge can decide whether the information is privileged and, even if it is, the judge could make an order requiring the information to be disclosed to the commission.

The judge's decision would be based on whether the information is necessary to the commission's decision, and whether its disclosure is more important than the interests that are protected by withholding it.

Protection is included in the bill so that anyone subject to such information, such as a client in the lawyer–client relationship, could not have the information used against them in legal proceedings.

Other changes recommended by the committee included:

• At least one commission member to have knowledge and understanding of both te ao Māori and tikanga Māori (Māori culture and custom).

• Enabling the commission to initiate an inquiry into general matters that arise from its work, not just during consideration of a conviction or sentence.

• Ensuring the commission's procedures are consistent with the principles of the Treaty of Waitangi.

• Requiring the commission's annual report to include information on engagement with groups that are disproportionately affected by the criminal justice system.

National MPs objected to the bill, saying the legal system already had mechanisms to review suspected miscarriages of justice.

"While a problem may well exist regarding a lack of access to criminal justice, by certain sectors of society in particular, there appears to be no good reason that accessibility issues cannot be addressed in other ways," National's report on the bill said.

"An example would be better publicising of opportunities afforded by the royal prerogative of mercy."

National MPs also said that victims may be forced to provide further potentially traumatising testimony for appeals.