Brian Rudman: Justice can and must be served

As John Key frets himself to sleep about Isis terrorists about to "rain carnage on the world", let's hope he also has time to worry about an injustice he can actually put right. That's the inability of our justice system to admit it sometimes gets things terribly wrong. Think Arthur Alan Thomas and Peter Ellis, of the Christchurch creche madness. Think Teina Pora.

This week, Mr Pora's legal team flew to London to appear before England's Privy Council in a final bid to overturn what is widely accepted is a 24-year-old miscarriage of justice. A teenager was locked up for 21 years for a brutal murder. It's a conviction which even veteran police cheerleader, Greg O'Connor, says has caused "significant disquiet among police". DNA evidence puts serial rapist Malcolm Rewa at the scene of the crime, not Pora.

Yet despite a retrial and a subsequent appeal, our legal system failed to concede the obvious. Even now, finally out, Mr Pora remains on parole, gagged by the parole board from arguing his innocence through the media.

Chief Justice Sian Elias will join the English law lords to hear the appeal. It is ironic that while the New Zealand legal system still clings to this antiquated colonial rigamarole of attempting to right its mistakes, the English and Scottish legal systems have moved on. For nearly 20 years, British victims of miscarriages of justice have been able to seek recourse before Criminal Cases Review Commissions.

The English Commission's annual report states its visions as "to give hope and bring justice to those wrongly convicted, to enhance confidence in the criminal justice system and use our experience to help reform and improve the law."

To those like sacked Justice Minister Judith Collins, who thought our system was fine, the English statistics suggest the opposite.

In the year to March 31, of 31 cases referred by the commission to an appeal court, 22 were allowed, and eight dismissed. One was withdrawn before a hearing by the appellant. That's a success rate of 73.4 per cent. Over the life of the commission, 70.4 per cent of appeals have been upheld.

In its annual report, chairman Richard Foster observed that "police misconduct continues to feature as a major factor in our work ... We continue to see a number of cases involving the non-disclosure of significant information, often relating to the credibility of complainants and key witnesses, or referred on the basis of new forensic evidence or a fresh interpretation of forensic evidence from trial or appeal."

He also emphasises the need for "fair access to high-quality legal representation" as "a crucial safeguard against wrongful or unsafe convictions." This is something Mr Pora lacked totally in five days of intense police interrogation following his arrest on an unrelated matter connected with car thefts.

In January 2006, retired High Court judge Sir Thomas Thorp estimated that based on the British experience, there may be 20 people wrongly imprisoned in New Zealand jails at anyone time.

More recently, Ms Collins, like previous justice ministers, argued everything was fine. We have "robust safeguards" against miscarriages of justice through the appeals process and royal prerogative of mercy.

But mercy is not what the innocent are seeking. It's justice. And in England and Scotland and a growing number of states in the United States, it is acknowledged that an independent body, sifting all the facts in a dispassionate way, is the best way to get to the truth.

The problem with leaving it to the court system is the emphasis is about process, and did the lower courts make any errors in law, or break any trial conventions. As Nigel Hampton QC, who is in favour of the British system, argues, the present system allows "no wide-ranging inquiry as to whether a miscarriage has occurred."

In the US, there have been 1250 innocent prisoners released since 1989, according to the National Registry of Exonerations. If Sir Thomas Thorp's calculations are correct, Ms Collins' "robust" system has failed to rescue 20 innocents currently languishing in our prisons. And that's not counting Mr Pora. The British have shown how this figure can be reduced, why are we waiting?