February 20 2024
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Justice at last: New Zealand finally launches its miscarriage of justice watchdog

Justice at last: New Zealand finally launches its miscarriage of justice watchdog

Shaun Allen fought for 27 years to prove his innocence. Pic: Mike White/ Stuff

In June this year, the New Zealand government launched its miscarriage of justice watchdog. It’s called the Criminal Cases Review Commission and it’s based on own UK model. Investigative journalist Mike White, who came to the UK to better understand how our CCRC works, on what it means for those claiming to be wrongly convicted. This article first ran here on Stuff magazine (thanks for permission to republish).

Shaun Allen will be there, Mark Lundy and Scott Watson too. And they’ll be joined by hundreds of others who believe they’ve been wrongfully convicted and are applying to the new Criminal Cases Review Commission to have their cases investigated.

Allen has been battling for 27 years to clear his name and prove the cops and courts got it horribly wrong when they convicted him of growing cannabis on his Hawke’s Bay farm. He’s always sworn he knew nothing about the cannabis they supposedly found. But he was sent to prison for 18 months, had his farm confiscated, missed seeing one of his kids born, and saw his business plans destroyed.

It’s wrecked his life, Allen says, and fighting to clear his name has consumed him, like a fever he can’t shake. When he won $500,000 on Lotto, he spent much of it on lawyers and investigators to help his fight. It’s a hell of a case, and most of those who’ve examined it find Allen’s conviction troubling. It involves crucial documents that have disappeared, court files mysteriously vanishing, contradictory police statements, dubious cannabis samples, and evidence withheld by prosecutors.

Allen alleges corruption and cover-ups by officials desperate to convict him, because it was the country’s first Proceeds of Crime Act case, where property could be seized. The police refuse to comment, Crown Law stays stubbornly silent. But Allen can’t. Angry and bitter words spill out as his voice rises: ‘Lies … criminal acts … hoodwinked scientists … malfeasance.’

Rebuffed by the courts, he sees the CCRC as his last hope for justice. ‘This has gone on, year after year, letter after letter, delay after delay. I’m over it. But I’m not going to stop.’ So he had downloaded the CCRC form to apply to have his case looked the moment the new organisation began work. ‘I’m going to press the button on it the second after midnight.’

You can read Mike White’s account of his 2014 visit to the UK in The Long Walk to Justice 

Until now, those who believe they’ve been wrongfully convicted and have exhausted their appeals, have effectively been left with one last option – the Royal Prerogative of Mercy. This involves applying to the governor-general, who refers it to the minister of justice, who passes it to Justice Ministry officials, who assess it and sometimes get an opinion from a QC or retired judge.

Their advice then goes back to the minister and the governor-general, who decides whether the case should be reconsidered by the appeal courts, or grants a pardon. (Arthur Allan Thomas in 1979 was the last time this happened.)

England abandoned a similar system in 1997 following revelations of police corruption in the jailing of the Birmingham Six and Guildford Four, wrongly convicted of IRA bombings. They established a CCRC, an independent body to investigate similar concerning cases, and Scotland followed suit two years later. Norway also created a similar body.

But New Zealand mulishly refused to implement a CCRC, despite widespread calls, including from retired judge Sir Thomas Thorp. In successive government briefings, Justice Ministry officials denied New Zealand needed a CCRC, and argued they were best-placed to handle wrongful conviction claims.

Critics argued the ministry didn’t actually investigate cases, didn’t have specialised staff, wasn’t truly independent, received few applications, and took years to review cases. But government after government accepted bureaucrats’ advice and rejected change.

However, creating a CCRC was a coalition agreement between Labour and NZ First, and Justice Minister Andrew Little has been determined to see this honoured (reported on the Justice Gap here).

Colin Carruthers QC, chief commissioner of the new Criminal Cases Review Commission (Mike White/ Stuff)

In November last year, Wellington QC Colin Carruthers got a call from Justice Ministry deputy secretary Tim Hampton asking if he wanted to head the body. ‘It came out of the blue,’ recalls Carruthers, ‘and I said yes, without pausing for a moment.’

Carruthers has seen the justice system from most sides. He’s been a prosecutor and defence lawyer for 54 years. He’s been involved in big cases – the Winebox Inquiry, South Canterbury Finance – and pro bono work such as saving promising scholar Hautahi Kingi from jail. He’s stood in the dock being sentenced on a drink-driving charge. And he’s reviewed cases such as Rex Haig’s conviction for murder, which led to Haig’s acquittal.

Carruthers has no doubt there are ‘a significant number’ of people in prison who shouldn’t have been convicted. Overseas estimates suggest there could be 300 – a number Carruthers says would surprise him.‘But when I think about the number of Māori in prison compared with the population ratio (about 16% of the population but over half of prisoners), maybe it shouldn’t surprise me.’ While he believes we generally have a good justice system, Carruthers says the CCRC is ‘a necessary addition’.

Its investigators can compel people to hand over documents and give evidence. It can highlight problems it believes continually lead to wrongful convictions. It will be independent of government, based in Hamilton, away from the centres of judicial or political power, and will have a healthy $4 million annual budget. And though it doesn’t determine guilt or innocence, it can refer any case back to the courts if it’s ‘in the interests of justice to do so’.

In the last 25 years, there have been just 172 applications for the Royal Prerogative of Mercy (18 have been referred back to the courts, including David Dougherty, Rex Haig and, this year, David Tamihere). The CCRC expects 125 applications annually. That’s because it’s free to apply, and doesn’t require legal expertise – that’s all done by the CCRC.

Nobody is suggesting every application will be from genuinely innocent victims. But if overseas experiences are replicated, vastly more wrongful convictions will be uncovered by the CCRC than under the present system.

Gerard Sinclair, CEO of the Scottish Criminal Cases Review Commission, who has strongly encouraged New Zealand to follow Scotland’s lead. Pic: Mike White/ Stuff

On a spring morning in Glasgow, Scottish CCRC chief executive Gerard Sinclair is buoyed by New Zealand finally establishing a similar body. He’s encouraged it, given advice, met with Andrew Little, and spoken with Carruthers, and told them all that the Scottish CCRC has been widely welcomed as an important part of his country’s justice system.

Since 1999, more than 120 cases have been reconsidered by Scottish courts following CCRC investigations, with two-thirds of these appeals being successful. ‘We should all want a criminal justice system that, even a year, five years, or even 10 years after a conviction, is prepared to consider they may have got it wrong,’ says Sinclair.‘The criminal justice system remains a human system that has human inputs from witnesses, experts, forensics, police, lawyers and judges, and we will make mistakes. The medical profession has always accepted that, with the best will in the world, mistakes can be made in diagnosis and procedures. The same happens in the legal system. And I think you must always provide someone with a road to remedy, and the CCRC is seen as that.

‘It’s not some revolutionary organisation that’s there to shake the foundations of the justice system, it’s simply seen as a viable part of the system that corrects errors when they’re discovered.’

Most times the CCRC considers there may have been a miscarriage of justice, the case will be sent back to the Court of Appeal, which won’t always agree anything has gone wrong. 

President of the Court of Appeal, Justice Stephen Kos. Pic: George Heard/ Stuff

But Court of Appeal president Stephen Kos unreservedly welcomes the new body, saying it has the funding and investigative powers to do things the courts and the current royal prerogative system simply can’t. ‘No-one could complain about this development, and any sentient jurist should applaud it. The courts do their best, but mistakes still occur … The commission is not a threat to the courts. Rather, it is a necessary complement, and safety valve.’

However, some appointments to the seven-member board have caused questions. Alongside Carruthers are Christchurch QC Nigel Hampton, who has worked on wrongful conviction cases such as Rex Haig and Peter Ellis; Tracey McIntosh, professor of indigenous studies at Auckland University; Manukau defence lawyer and youth advocate Kingi Snelgar; Palmerston North deputy mayor and JP Tangi Utikere; former police superintendent and current Parole Board member Paula Rose; and the medical director of Environmental and Science Research’s health group, Virginia Hope.

Concerns voiced by numerous people to Stuff query whether having a former police officer and ESR manager (ESR conducts all police forensic work and has sometimes been called ‘cops in white coats’ for its close relationship with police and prosecutors) as commissioners may deter applicants who will consider it just the same old system.

Additionally, some applicants, like Scott Watson, will have appeared before Rose during unsuccessful parole hearings, though the CCRC says commissioners will recuse themselves from matters in which they have an interest.

Auckland QC Julie-Anne Kincade, who strongly supports the new CCRC but is concerned about how some of its commissioners will be perceived by those who have been wrongly convicted and for whom the body is the last port of call. Pic: Kevin Stent/ Stuff

Auckland barristers Julie-Anne Kincade QC and Emma Priest, of Blackstone Chambers, released a statement to Stuff saying it was ‘puzzling and disappointing to see the final constitution of the CCRC, given the work they are tasked to do’. The CCRC had to be seen as just and fair, and appointing a retired career police officer and a current ESR employee, opened it to criticisms it wouldn’t be impartial, they said, given many cases, including Mark Lundy’s and Scott Watson’s, hinged on controversial police investigations and the ESR science applied to them.

It was concerns about similar perceptions that led Little to rule out retired judges becoming commissioners. ‘This appears inconsistent with the decision to have police and ESR representatives on the commission,’ Kincade and Priest said. ‘It is so important to have courageous and bold decision-makers on the CCRC. The integrity of our system depends on it.’

Carruthers says people should look dispassionately at the skills of those appointed and realise there are seven commissioners who will make decisions. ‘I struggle to think it will be judged by the fact Paula Rose was once a cop, or Virginia has a connection with ESR.’

The other major concern is how little experience there is among the commissioners, other than Hampton and Carruthers, with actual miscarriage of justice cases.

Investigator Tim McKinnel, whose work led to overturning Teina Pora’s murder conviction, and independent forensic scientist Anna Sandiford, who worked on Pora’s case as well as those of David Bain and Mark Lundy, were on the CCRC’s establishment advisory group. Both applied to be commissioners but were rejected, though could have some other role with the CCRC.

Stuff is also aware that among the 80 applicants to be commissioners were several highly regarded lawyers with experience in such cases who didn’t even get interviewed.

Barrister Emma Priest says confidence in the new Criminal Cases Review Commission will come from the public believing in its integrity. Pic: David White/ Stuff

Kincade and Priest say all the commissioners have impressive credentials, but they had hoped for a stronger base of experienced trial and appeal lawyers and investigators with practical experience in wrongful conviction cases. ‘Ultimately, it’s hoped this isn’t a missed opportunity to put together the best team available.’

However, prominent defence lawyer and Auckland District Law Society president Marie Dyhrberg QC believes the commissioners are committed and professional, and it was valuable to have people with police and ESR experience.

Dyhrberg, who represented Teina Pora, says his second conviction devastated her, as she knew he was innocent. And on average, she does one trial a year where she says the result flies in the face of justice, leaving her feeling, ‘That was just not right – how did that come about?’

For fellow Auckland silk Simon Mount QC, the CCRC’s birth follows nearly 20 years’ effort. He worked alongside Sir Thomas Thorp who estimated at least 20 innocent people were in New Zealand jails, when calling for a CCRC in 2005.

Sir Thomas died in 2018, shortly after the CCRC bill reached Parliament, but had already met with Andrew Little. Without Sir Thomas’s input, Mount says, New Zealand would not have a CCRC as soon or as good as it now has.

Mount says Sir Thomas had enormous empathy for prisoners, despite many years as a prosecutor, and wasn’t scared to say the system was fallible and could be improved. His CCRC work was the culmination of this, and he would be gratified his calls had finally been heeded.

‘He wouldn’t have basked in the success or patted himself on the back. But he certainly would have been pleased, because he believed so strongly how important it was.’