New Zealand "Innocence Project" reignites debate on appeals process

The recent revival of the New Zealand “Innocence Project” has reopened the debate about the need for an independent commission to investigate claims of miscarriages of justice in this country.

The issue hit the headlines a decade ago when former High Court Judge Sir Thomas Thorp conducted a review comparing New Zealand’s system of dealing with claimed miscarriages of justice with those in Scotland and England.

Based on the experience of those countries, Sir Thomas estimated there were likely to be at least 20 innocent people in jail here and concluded that we should establish something akin to the Scottish “Criminal Cases Review Commission” (CCRC). Referrals by the Scottish CCRC have resulted in around four wrongful convictions being corrected each year, compared to New Zealand’s rate of one every two years under the royal prerogative of mercy system.

Sir Thomas, whose views have not changed over the years, told Law News that one of the reasons for the low number of miscarriage of justice claims here is that Maori and Pacific Island inmates, who make up more than 60 per cent of the prison population, see little merit in making such claims.

“Most people who have failed in all their appeals are unimpressed with the justice system and they don’t want to go back to the Minister of Justice with complaints because they think it’s simply a waste of time. In England and Scotland it’s considered vital to have an independent commission considering such complaints but, for some reason, not in this country.”

Sir Thomas says in the fullness of time it is probably inevitable that such a body will be established here, but for the moment he is not holding his breath.

Justice Minister Judith Collins, for one, has made it quite clear that she does not see the need for a CCRC here. She told Law News that New Zealand’s criminal justice system has “robust safeguards” against miscarriages of justice through the appeals process and the royal prerogative of mercy provisions.

“Successive governments have considered setting up a CCRC but none have progressed the idea. In New Zealand several high profile cases like those involving Rex Haig, Peter Ellis and David Dougherty have been referred back to the courts under the royal prerogative of mercy and this is what an independent body like the CCRC would have done if they had looked at these cases.”

Ms Collins says around 10 applications for the royal prerogative of mercy are received each year, with 153 applications made since 1995. Of these, 15 were referred back to the court.

“The rate of referral to the courts of around 10 per cent is considerably higher than under the UK CCRCs where around 4 per cent of applications they consider are referred back to the courts,” says Ms Collins.

However, long-serving Christchurch QC Nigel Hampton told Law News that New Zealand’s failure to establish a CCRC is regrettable.

“The consistent theme from Ministers of Justice is that we have a robust system of justice that properly and adequately can deal with alleged miscarriages of justice. In my view this is demonstrably wrong and Sir Thomas Thorp’s review bears that out.

“In my mind (Peter) Ellis is the startlingly clear illustration - a case where it is not argued that the wrong person has been convicted for a crime which was committed, but a case where it is said that no crime was ever committed at all. Yet, despite support from politicians from both sides of the House for a one-off commission, a wide-ranging enquiry to examine Ellis has never occurred.”

Mr Hampton QC says in New Zealand it is impossible for any appellate court to broaden its focus and look in the round at the factual background of a particular matter where a wrong jury verdict is alleged.

“New Zealand courts, taking a traditional view, say in effect that they are constrained by both statute and convention to only look at the ‘narrow’, usually legal, issues raised by or on appeal. And [they say] that the appellate courts are not some commission appointed to conduct some wide-ranging factual review as to the origins of the matter, or its overall means and manner of investigation.”

Mr Hampton QC says applications for the exercise of the royal prerogative of mercy are dealt with in a similarly “limited” way. “The advice to the Governor-General on such a petition is given around narrowly discrete topics, designed in effect to allow the Court of Appeal to deal with the matter in that Court’s usual way, should the petition be referred back to that Court,” he says.

Mr Hampton QC says the cost of establishing a permanent review commission has been raised by some commentators as the underlying reason for political resistance to the concept. “Well, how does one measure that as against the sort of miscarriage a wrongful conviction with its attached sentence and all its sequelae which such a commission might well remedy?” he queries.

“The Scottish model shows that costs are not outrageously high in any event, I think one to one and a half million pounds per annum and the Scottish experience, within a rather similar population base as our own, demonstrates the need for such a commission.”

Mr Hampton QC says without a CCRC the current system must rely heavily on “white knights” willing to work for little payment with those convicted all depending on assistance from lawyers, private detectives, scientists or journalists to help clear their names.

It is perhaps not surprising therefore that the “Innocence Project” (IPNZ) has reappeared on the New Zealand legal scene. It was originally launched here around six years ago to, among other things, assist criminal lawyers overturn unsafe convictions. Based at Victoria University in Wellington, with input from Otago University, it used New Zealand and international experts in forensic science, law and psychology to examine contentious criminal cases and determine whether they could be re-litigated.

In 2012, the project moved its base from Victoria University to Otago University, and renewed its membership with the global “Innocence Network”. Research coordinator Bridget Irvine told Law News that the Innocence Network is an affiliation of groups that provide pro bono legal and investigative services to those seeking to prove their innocence.

“We are actively researching a number of cases covering a wide range of issues,” she says. “People apply to IPNZ by completing a comprehensive questionnaire that asks about the offence that was committed, the investigation, and the applicant’s experience within the justice system.”

To be eligible for assistance, Ms Irvine says applicants must have already appealed their conviction and they must maintain factual innocence.

“If the applicant meets our criteria then the application moves into the investigation phase and we research different avenues to ascertain whether there is any evidence of a wrongful conviction. If we uncover any information that is indicative of the innocence of our applicant, then we will look towards petitioning the Governor-General for the exercise of the royal prerogative of mercy.”

Asked whether New Zealand should establish a CCRC, she says there is “no reason to think that New Zealand would not experience the same benefits”. She says the incidence of wrongful convictions in New Zealand and worldwide is
very difficult to quantify but exoneration rates
give a clue.

“The recently formed US National Registry of Exonerations reports there have been 1250 exonerations in the USA since 1989, of which 311 involved US Innocence Projects. The vast majority of these were DNA exonerations in which untested biological material is DNA tested and excludes the convicted person. Given that the issues identified as contributing to wrongful conviction are highly prevalent there is good reason to suspect that these statistics represent the tip of the iceberg.”

According to Dr Rachel Zajac, Senior Lecturer in Psychology at Otago University and co-director of IPNZ, the most common causes of wrongful conviction are eyewitness misidentification (73 per cent of cases), issues with forensic science evidence (50 per cent), and false confessions (29 per cent).

“Eyewitness errors occur because memory doesn’t work like a video recorder. There are a multitude of factors, both within and outside the control of the criminal justice system, that can impair memory and reporting. These range from the issues surrounding the witnessing of an event to the way in which investigative interviews or photographic lineups are conducted.”

Dr Zajac says with regard to forensic science, some forms of forensic evidence have not been appropriately validated and forensic scientists occasionally misinterpret evidence.

“Sometimes forensic experts overstate or misstate the evidence in court. Adding to these problems is the fact that jurors are not necessarily equipped to critically evaluate forensic science evidence.”

Dr Zajac says people confessing to crimes they did not commit is happening with “concerning frequency”. “Some people are pressured by investigators into making a self-incriminating statement, while others confess in the absence of any police pressure,” she says.

“Police interview practices are clearly paramount here, as well as the identification of factors that might increase vulnerability to false confession, such as age, mental health issues or low intellectual functioning.”

IPNZ is one of 66 Innocence Projects around the world that belong to the Innocence Network. Opinions about such projects vary with some members of the legal fraternity holding them in high regard while others doubt their effectiveness.

Nigel Hampton QC is in the latter camp. “Innocence Projects, no matter how useful, are not the answer. They have sprung up from necessity in the USA, usually from death row cases, but they are ad hoc...they tend to be taken up by enthusiastic and well-meaning, but inexperienced part-time amateurs [and] driven by publicity.”

Mr Hampton QC believes that, judging from past experience, IPNZ will have difficulty establishing and maintaining its presence in this country. “The New Zealand model will be dependent on the individual likes and whims and mores of both academic staff and students - hardly a principled response to an institutional problem,” he says.

Professor Mark Henaghan, the Dean of Law at Otago University and Co-Director of IPNZ counters this viewpoint: “The Innocence Project does not claim to be a full institutional response to miscarriages of justice,” he told Law News.

“It is not correct to say that IPNZ is a group of inexperienced yet well-meaning amateurs. The New Zealand project is run by a number of senior academics, both in law and science, who will ensure that the investigations that are carried out are both thorough and highly professional.

“If IPNZ does reveal any miscarriages of justice, then this will lend further support to the requirement of an institutional response,” says Professor Henaghan.

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