A top judge says he'd welcome an independent body to investigate wrongful conviction claims in New Zealand.
In an exclusive interview on The Nation, Justice William Young said courts could benefit from having a Criminal Cases Review Commission, like that established in the UK.
While it isn't Government policy, it's an idea backed by the Police Association and most political parties.
It's extremely rare for a Supreme Court justice to be interviewed, but Justice Young strongly believes our criminal court process must remain as robust as possible, because it can make mistakes.
"I accept there are clear exonerations - as you know I regard Teina Pora as a clean exoneration."
The Nation asked Justice Young for his views on a Criminal Case Review Commission, an independent unit to investigate wrongful conviction claims.
"I would support it in principle," he said. "I'm not in a position to make an assessment of a cost-benefit analysis, but we would be very happy if there was a unit set up like a Criminal Cases Review Commission."
It's what they have in the UK.
"We have quite wide-reaching powers," says Richard Foster, the current head of UK Criminal Cases Review Commission.
"We can require the production of any public document and any material which is held by a public organisation, whether that is the police, or the security services."
If it finds a conviction is unsafe, it refers the case back to the courts.
"It is also about keeping the system honest, and one of the things that we do is provide a means of assuring everyone that if mistakes do happen, they can be rectified."
Scotland has a similar population to ours and established a commission in 1999. It's helped quash 34 convictions.
Our Police Association is supportive, provided the unit is objective and properly resourced.
"Other than drawing many of these cases out for another year or so longer than they are now, the association would accept it," says outgoing president Greg O'Connor.
Despite the high-level support, the Government's ruled out a commission in New Zealand. It says the Ministry of Justice already has a process to investigate wrongful conviction claims, and compared to Scotland, defendants here enjoy greater appeal rights and an increased chance of having their convictions being overturned.
The New Zealand RPM process operates within, and needs to be evaluated within, the context of our own particular legal system. What may work in another jurisdiction is not necessarily required or appropriate in New Zealand's system.
For example, there is an important distinction between the New Zealand and Scottish systems of criminal appeals. Convicted persons in New Zealand enjoy full rights of appeal (one appeal as of right, and up to two further appeals with leave) while those in Scotland do not. This difference is relevant both to the overall number of applications for review (that is, it will be higher in Scotland because there are fewer opportunities to appeal convictions through the courts) and the kinds of cases that a body like the Scottish CCRC may face.
The New Zealand RPM process provides a constitutional safeguard against miscarriages of justice. The process is effective - in cases such as David Dougherty and David Bain convictions have been referred back to the Courts and ultimately quashed. In fact, the referral rate in New Zealand is approximately 9.25 percent, which is higher than the Scottish CCRC (at 5.95 percent).
The particular form of the RPM in New Zealand (exercised by the Governor-General on the advice of the Minister of Justice) reflects our constitutional arrangements. It respects the constitutional separation of powers in two important ways:
While the organisational arrangements differ in the UK and Scotland, the Criminal Cases Review Commissions in those jurisdictions function according to the same principles - that is, matters are referred back to the courts to be decided where it appears that there may have been a miscarriage of justice.
The ministry's role is to assess applications and provide independent advice to the Minister of Justice. Accordingly the ministry cannot gather evidence or make an applicant's case for them. The UK CCRC similarly does not act for or represent applicants. Legal aid is available to RPM applicants so that they can be supported and advised by criminal defence lawyers. Legal aid can also extend to any investigative work that needs to be undertaken.
While RPM applicants are expected to specify the grounds of their application, the ministry will investigate other issues that arise in the course of consideration of an application. The ministry also frequently spends considerable time assisting unrepresented applicants to explain the basis for making a claim.
While it is true that the ministry does not have statutory powers to compel people to provide information, this has not inhibited our ability to gather information and the overall consideration of RPM applications. Police and other Government agencies routinely co-operate with requests for information and assistance, as do counsel for the applicant and the Crown, and the applicant's previous lawyers. Applicants are able to apply for relevant information under criminal disclosure rules, the OIA or Privacy Act, and can ultimately have recourse to the courts.
Where necessary a senior lawyer may be engaged to interview witnesses, and expert commentary and analysis will also be sought if necessary.
We are not aware of any examples where a deserving applicant has been unable to challenge their conviction (as opposed to disagreeing with the outcome). Many of the problems that commentators allege appear to be theoretical.
Information about the RPM process (including an application form designed to guide an applicant in providing all the necessary information) is available on the Governor-General's website, and there is information about the RPM process and a link to the brochure and the form on the Ministry of Justice's website.
Police are well-trained and versed in interview techniques and process as part of their detective qualifying requirements and receive ongoing training and on the job experience. Officers do not rely solely on a person's confession when investigating crime. In all cases, police seek corroborating evidence, such as fingerprints, DNA, other witness accounts etc. where available to validate the information provided. Advice is also taken from the Crown and other legal experts before considering any charges and presenting any criminal matter to the court. It is the role of police / the Crown to present the best available evidence and for the court to then determine the outcome.
Unreliable scientific evidence
Officers/detectives have the following available:
Police Forensic specialists (fingerprint officers, document examiners, forensic photographers, scene of crime officers) who are qualified to give 'scientific evidence' in their areas of expertise through their successful completion of 3.5 to five-year formal training programmes. Where appropriate these specialists operate in a stringent peer review environment to ensure scientific evidence provided is valid, relevant, and accurate.
ESR provides a forensic science service to police covering a range of forensic disciplines. ESR is an Internationally accredited laboratory under American Society of Crime Laboratory Directors/ Laboratory Accreditation Board (ASCLD/LAB). ESR is inspected annually by ASCLD/LAB to ensure that it meets international standards of forensic competency, analysis, and reporting. ESR also works in a strong peer review environment.
Under the Evidence Act, the Court must accept a witness' credentials to provide testimony as an expert witness before that witness provides scientific evidence to the court.
Witness misidentification (i.e. how are suspect photos presented to witnesses?)
Officers/detectives have available to them the 'Identification of Offenders' chapter in the police manual that clearly outlines the processes to follow to ensure that identification of a suspect through a physical or photo line-up is evidentially valid and reliable.
'Noble cause corruption' - the belief by some investigators that the end justifies the means because the suspect committed the crime and improper practices are justifiable to ensure a conviction.
Police works within the law, and takes its obligations very seriously. Matters are only brought before the court where it is considered there is sufficient evidence to support a prosecution. This is managed in accordance with the Solicitor-General's guidelines and in consultation with the Crown and other legal experts as appropriate.