Govt must not intrude on courts
As pressure mounts for her to review the conviction of Teina Pora for the rape and murder of Susan Burdett, Justice Minister Judith Collins explains why it would be wrong for her to intervene now.
New Zealand has one of the best-performing justice systems in the world. It has minimal corruption, a strong judiciary and high public confidence in its institutions.
New Zealand consistently ranks at the top of Transparency International's corruption perception index for having one of the least corrupt, most transparent governments.
The separation of powers - between the executive and the judiciary - is at the heart of democracy. It ensures that power does not concentrate in one branch of government.
Decisions about criminal responsibility are made by the courts.
Every convicted person can appeal against conviction and sentence. The appeal courts ensure the trial process was fair, evidence was properly admitted or excluded, and the verdict is not unreasonable.
The appeal courts, including the Privy Council, may quash a conviction, order a retrial or amend a sentence.
Recent reports surrounding Teina Pora's convictions suggest there is confusion on two issues - the options available to review Pora's convictions, and options available to address broader concerns about how his case was handled.
For Pora's sake, the priority must be on the options available to review his convictions.
Pora was convicted at a retrial in 2000 for the murder, rape and aggravated burglary of Susan Burdett. His appeal against those convictions to the Court of Appeal was unsuccessful. The remaining avenues available to overturn his convictions are either a further appeal to the Privy Council or the exercise of the royal prerogative of mercy (or a pardon).
Pora filed an application for the royal prerogative of mercy in September 2011. At this time, his lawyer advised that the application was incomplete but that he was gathering further evidence.
The application for a royal prerogative of mercy is an inquiry, which may involve the appointment of an independent person such as a retired High Court judge or Queen's Counsel.
The royal prerogative of mercy is a longstanding and constitutionally recognised process in which the executive branch of government can intervene in criminal cases. It provides a special avenue for a convicted person to seek a review of his or her case where a miscarriage of justice may have occurred.
The governor-general may grant a pardon or refer the matter back to the courts for reconsideration.
That is also why, if Pora goes to the Privy Council, his appeal should be completed before any consideration is given to exercising the royal prerogative of mercy.
At the moment, the Ministry of Justice is administering 12 applications for pardons and three applications for compensation claims.
Pora's application for the royal prerogative of mercy remains open and his lawyer is seeking leave to appeal to the Privy Council.
There are separate avenues for investigating broader concerns about how Pora's case was handled.
Where there are allegations of police misconduct, complaints can be made at any stage to the Independent Police Conduct Authority.
Other avenues include a ministerial inquiry or commission of inquiry. However, importantly for Pora, these mechanisms do not have the power to overturn convictions.
The executive branch of government must not intervene in the court process. If the Government needs to institute a wider inquiry as to what went wrong, it should be done only after the court has first answered the question of whether something did go wrong.
The case of Arthur Allan Thomas is an example of where a royal commission of inquiry was established to look into a criminal case.
Mr Thomas applied for the royal prerogative of mercy after he exhausted his appeal rights. It was only after Mr Thomas received a pardon that a royal commission of inquiry was set up by the Government to determine what had gone wrong and issues of compensation. It was not an inquiry into whether Mr Thomas was properly convicted.
At the time of the royal commission of inquiry regarding Mr Thomas, the Independent Police Conduct Authority was not in place and therefore not available to investigate police actions.
As Minister of Justice, I take seriously any suggestions that something went wrong in the criminal justice system. I am satisfied that there are appropriate options available to address any concerns about Pora's case.
I cannot rule out the possibility of a broader inquiry into the circumstances leading to Pora's convictions once any legal proceedings involving his convictions are resolved.
In the meantime, it would be constitutionally unsound for me, as a minister of the Crown, to intervene in the court process.
The Dominion Post