Miscarriages of justice targeted by NZ academics, lawyers

Teina Pora, centre, with journalists Eugene Bingham and Paula Penfold on the night they learned the Privy Council   had ...
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Teina Pora, centre, with journalists Eugene Bingham and Paula Penfold on the night they learned the Privy Council had quashed his convictions.

Justice is slow-moving in New Zealand but must it be as slow as this? Teina Pora spent 22 years in custody on rape and murder charges until his convictions were finally quashed by the Privy Council in March. He has since learned there will be no retrial. 

It was a magnificent result for those who campaigned so long on Pora's behalf, but how much time was lost? Labour's justice spokeswoman Jacinda Ardern says that she heard from someone in Pora's camp that if New Zealand had an equivalent body to England and Scotland's Criminal Cases Review Commissions, Pora might have spent five fewer years in prison.

David Bain, left, and supporter Joe Karam moments after his acquittal in 2009. Would a criminal cases review panel help ...
Dean Kozanic

David Bain, left, and supporter Joe Karam moments after his acquittal in 2009. Would a criminal cases review panel help speed up long-running and expensive miscarriages of justice?

The Pora case reignited calls for a government-funded body to investigate miscarriages of justice. These calls are not new but each subsequent case makes them louder. There was David Bain. There was David Dougherty and Peter Ellis. There was Mark Lundy and Teina Pora. There is Scott Watson and Michael October.

A decade ago, a retired High Court judge, Sir Thomas Thorp, argued that New Zealand needs a body similar to the UK's Criminal Cases Review Commission, created in the wake of such high-profile injustices as the case of the Birmingham Six and the Guildford Four. Working off British examples, Thorp estimated that there are likely to be 20 innocent people in New Zealand jails at any one time.

The Ministry of Justice didn't take up Thorp's recommendation then and it hasn't picked up similar recommendations since. Unsurprisingly, the ministry was sceptical about whether Thorp's 20 innocent people was even an accurate guess.

Former National MP Richard Worth proposed a members bill to create such a body in 2007 but the ministry recommended that the Labour Government of the day not adopt it.

More recently, the National Government position is that the current system works just fine.

This week, Justice Minister Amy Adams repeated her reassurance in a statement to The Press: "The recent cases show the system is already capable of correcting miscarriages of justice when they occur, either through appeals (sometimes many years later) or through the Royal Prerogative of Mercy process when appeals have been exhausted."

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"I would dispute that," Ardern says.

Justice should be both accessible and timely, she says. As the high-profile Pora, Lundy and Bain cases show, campaigners have to be well-resourced. There is often a "white knight", such as tireless Bain supporter Joe Karam. There are sometimes dogged journalists, such as TV3's Paula Penfold and Eugene Bingham in the Pora case or North and South's Mike White with Lundy. Pora was also assisted by private investigator Tim McKinnel and lawyer Jonathan Krebs.

But such resources are not accessible to all. More than that, Ardern disputes that the "timely" part of the justice equation is being fulfilled. Think again of Pora's extra five years.

Ardern says that the imminent launch of the New Zealand Public Interest Project (NZPIP) is therefore welcome news. It is a group of lawyers and academics with connections to the University of Canterbury and its trustees are almost a roll call of names of those who have campaigned on behalf of others.  

Nigel Hampton QC is active in the campaign to clear Michael October; Hampton believes October falsely confessed to taking part in a rape and murder in Christchurch in 1994. Lawyer Kerry Cook is acting for convicted double murderer Scott Watson. Tim McKinnel worked on the Pora case. Jarrod Gilbert and Chris Gallavin are a sociologist and law lecturer and Canterbury's dean of law respectively. Glynn Rigby is a private investigator. Anna Sandiford is a forensic science consultant who gave evidence in the Bain retrial. Duncan Webb is a Christchurch insurance lawyer whose involvement shows that the NZPIP will consider civic cases as well as criminal ones.

The group says on its website that a Criminal Cases Review Commission-like body is "an important absence in our country's legal system". So they set about creating their own.

The Michael October and Scott Watson cases will be among the first considered by the NZPIP after it officially launches next month.

The team will be helped by Canterbury University law students, both as volunteers and working for course credit. They will take cases that are in the public good, whether that means appealing miscarriages of justice against individuals, or civil matters where "access to justice is inhibited" or where a public interest is not otherwise served. They could be test cases or class actions, human rights cases or commercial and consumer matters.

And reaction from the system? Justice Minister Adams has been quick to pour scorn on the background of some involved in the NZPIP.

"I note that many of the people involved in the panel have been advocates for the defence in many high profile cases which could lead to perceptions that the panel reviews may not be impartial," she says.

Adams adds that: "These self-initiated review groups exist in various places, however it's no substitute for an impartial judicial-level review and its findings carry no legal weight. I consider it appropriate that determinations of guilt and reviews of those determinations remain principally with the judiciary."

Impartial? Labour's Jacinda Ardern almost laughs when she hears that criticism. If Adams wants to see something impartial, then that is "well within her remit and her ability".  In other words, Adams can create an independent body if independence is what she is looking for.

While impressed by the NZPIP, Ardern believes it is still not enough. The fact that the group has come together simply reinforces the argument that a review panel is needed, she says. But it is not fair for it to be the responsibility of the legal and academic communities. It should be run and supported by the state.

She adds that Labour leader Andrew Little is a supporter of creating a body similar to the Criminal Review Cases Commission and looked into it during a trip to the UK. In government, Labour would make a priority.

But is there public demand? It is fair to say that the Lundy and Bain retrials have been polarising. 

"The public want to see that we are doing everything to ensure justice is being served," Ardern says.

Canterbury University's Chris Gallavin has argued that such a state-funded review panel would easily save taxpayers money in the long run as well as restoring faith in the New Zealand justice system.

READ MORE: 

* Review body for miscarriages of justice 'could save millions'

* Criminal cases review panel

* Panel to investigate suspected miscarriages of justice

Ministry of Justice figures showed that the legal aid bill for the Bain retrial alone was $3.33 million. The Scottish Criminal Cases Review Commission serves a similar population as ours on a budget, for the 2013/14 year, of £1.051m (NZ $2.23m).

What about the concerns that such a panel would be flooded with thousands of opportunistic or even genuine people claiming an injustice had been done? The overseas experience shows that is unlikely, Gallavin wrote in The Press in March.

The commission in England has received more than 18,500 applications since 1997 and "has referred a little over 550 cases to the Court of Appeal, and that covers a national population of more than 60 million people."

And if there was a flood, that says something important as well, Gallavin noted. 

"If on the other hand there was a flood of meritorious applications then all the more reason to have a panel. We do not avoid this issue by putting our heads in the sand."

 - Stuff

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