New Zealand to set up miscarriage watchdog

New Zealand is to set up a miscarriage of justice watchdog drawing on the UK’s Criminal Cases Review Commission. The new coalition agreement between Labour and New Zealand First has made provision for an independent body to investigate alleged wrongful convictions. Sarah Foss writes – additional reporting by Jon Robins

Investigative journalist Mike White welcomed the proposals. ‘For those of us who’ve raised the issue, researched international models, and called for greater transparency and independence in investigating potential miscarriages of justice, it’s a great and long overdue initiative,’ he told the Justice Gap.

White, a writer for New Zealand current affairs magazine North & South, visited the UK in 2015 on a fellowship to look at the CCRC which was the first state-funded miscarriage watchdog.

You can read Mike White’s account on the Justice Gap here.

A CCRC in New Zealand would mark a departure from the previous system available to those who had lost appeals and were disputing their convictions in New Zealand: the Royal Prerogative of Mercy. Under the Royal Prerogative, it had been argued that there was a lack of investigative powers as well as a conflict of interest with the Justice Ministry investigating potential wrongdoing in law enforcement.

The reforms comes in the wake of a series high profile cases of wrongful convictions over the last 20 years in New Zealand reported to have cost the government $5.3 million in payouts – see below. In particular the case of Teina Pora (pictured) who received $2.5 million compensation after spending over 20 years in prison whose wrongful conviction in 1994 for murdering Susan Burdett was quashed by the Privy Council in 2015.Another significant moment came in 2006 when a retired judge, Sir Thomas Thorp, reviewed the potential for miscarriages of justice and suggested there could be at least 20 innocent people in NZ prisons.

The body will draw on the experience of the UK’s CCRC which is 20 years old this year and was established as a direct result of the Birmingham Six scandal. Despite welcoming the CCRC as a ‘really positive step’, Mike White noted ‘the success of our CCRC will in large part depend on how it is structured and the powers it is given – as well as the funding allocated to it’. ‘Such things as the threshold for referring cases back to the courts; the scope for compelling public and private bodies to provide evidence/documents; and whether the CCRC will only consider “fresh evidence”, will be crucial considerations,’ he said.

The UK’s CCRC has struggled as a result of chronic under-funding and being deluged by a large volume of applications. Increasingly, appeal lawyers, academics, journalists and campaigners have expressed concern over the perceived unwillingness of the Court of Appeal to get to grips with wrongful convictions.

White added that he hoped that the new body would not be ‘just a rebranding of the current system’ which he said was ‘effectively conducted “in-house” by our Ministry of Justice’. ‘Many of those who’ve lobbied for a CCRC in New Zealand stress the new body must be a fresh approach, with new personnel completely independent of the existing bureaucracy, which has previously opposed the establishment of a CCRC,’ he continued.

NZ’s long walk to freedom

There were perhaps two ‘seminal’ cases that jolted New Zealanders into realising that their police and justice systems weren’t perfect, writes Mike White. It was the case of a farmer, Arthur Allan Thomas, convicted in 1971 twice of murdering nearby farmers Harvey and Jeanette Crewe. It was eventually revealed that police had planted a rifle shell at the crime scene to incriminate him. After nine years in prison he was pardoned and compensated.

In the 1990s, when people were hearing about what was going on in Britain with the Birmingham Six and Guilford Four etc, there was another case that shocked people. David Dougherty was convicted of abducting and raping his 11-year-old neighbour in 1993. He served three years, but, with the help of a journalist (my colleague at North & South, Donna Chisholm), he won a retrial and was acquitted – largely due to the fact that the DNA at the scene didn’t match him. Another man was later convicted of the crime.

Rather than one major case like the Birmingham Six, a series of controversial cases gradually caused so much concern about our criminal justice system that people wanted a safeguard. In most of the cases, the people who were convicted of these crimes, haven’t been cleared – but there remains enormous concern about their convictions.

And a CCRC would have helped all of them, had it been available. Instead they’ve had to rely on friends and family, lawyers working pro bono, and determined journalists.

• Peter Ellis was convicted of sexually abusing children at a crèche in the 1990s – with absurd testimony from some of the children. Despite considerable evidence that the investigation was seriously flawed and the children’s evidence unreliable, the authorities continually rebuffed his appeals. It came at a time of worldwide ‘hysteria’ about satanic cults and child abuse.
• David Bain was convicted of killing all five other members of his family in 1994. There was a considerable public campaign to free him and eventually in 2009 he was acquitted at a retrial. Many remain convinced he is guilty, but again, the case exposed a shoddy investigation and created huge doubt about the safety of his conviction.
• Scott Watson was convicted in 1999 of murdering two young people after a New Year’s party at a popular boating lodge. The bodies were never found, witness descriptions didn’t match Watson or his yacht, and there were enormous gaps of logic and timing in the Crown case. Despite growing support for Watson, he remains in prison.
• And in 2002, Mark Lundy was convicted of murdering his wife and seven-year-old daughter. Again, it was a very controversial case and Lundy eventually gained a retrial, but was reconvicted. His appeal was held last week and he may be heading back for a third trial.
• Perhaps the final push for a CCRC came with the case of Teina Pora, who spent 21 years in prison for a rape and murder he admitted to as a young and scared man, who was fed information by police and thought he might get a reward if he said what they wanted him to say. Tragic case, but he was eventually freed after an ex-detective took up his case.

There have been other cases of wrongful conviction which haven’t been as high profile, but have added to concern about the system.

Just drip after drip that’s eroded public confidence in the police and courts, and our belief in their infallibility.

One other important moment in the whole journey to a CCRC was in 2006 when a highly respected retired judge, Sir Thomas Thorp, reviewed the potential for miscarriages of justice and suggested, on international rates, there would be at least 20 innocent people in our prisons. Years later he told me that was probably an underestimate. This put it clearly in front of the public – innocent people are being convicted, and once that’s happened, there are few options.

This article was first published on November 2, 2017