Ministry of Justice discussion paper:
The Royal Prerogative of Mercy
A Review of New Zealand Practice
Comments from Lynley Hood
May 14, 2003
Thank you for the opportunity to comment on the discussion paper The Royal Prerogative of Mercy: a Review of New Zealand Practice. The views expressed herein are entirely my own. My purpose is not to offer definitive solutions, but to make a constructive contribution to the discussion on this important topic. I would welcome the opportunity for further discussion. My comments are as follows:
Lynley Hood ph: 03 487 7686
PO Box 2041 fax: 03 487 8454
South Dunedin email: firstname.lastname@example.org
1. Miscarriages of Justice
1.1 The Problem
1.2 The Magnitude of the Problem
1.3 The Proposed Solution
1.4 The UK Experience
1.5 The US Experience
the jury's fact finding role (The Legal Issue)
3. Separation/Balance of Power (The Constitutional Issue)
4. Being in the Hot Seat (The Public Issue)
4.1 The public's role
4.2 The lessons of history
and Precedent (The Judicial Issue)
7. Finding a Solution (The Executive Issue)
1. Miscarriages of Justice
It is probably fair to say that no
appellate court has ever upheld the conviction of a person it believes to be
innocent. Nonetheless no criminal justice system is, or can be, perfect. As the
discussion paper acknowledges, miscarriages of justice do occur. That being the
case, the key questions are: how can we best recognise miscarriages of justice,
and how can be best correct them?
Magnitude of the Problem
In considering the problems created
by wrongful convictions in the English IRA cases, Sir Robin Cooke wrote (Burt v
Governor-General 1992 3 NZLR 672):
Fortunately in New Zealand applications for
the exercise of the prerogative on the ground of alleged wrongful conviction
are quite rare. Probably two or three a year would be a liberal estimate at
present. ... If there were good reason to believe that injustices as revealed
by some English cases are occurring or likely to occur in New Zealand under our
present system, we would be disposed to favour any form of increased judicial
review that could help to prevent this.
The discussion paper reports (p.6)
that since 1996, 63 applications for the exercise of the prerogative of mercy
had been received. As at 30 June 2002,
no pardons had been granted, 7 applications had been referred to the court
under s.406(a) Crimes Act 1961, one had had its terms of reference widened, one
had been the subject of a ministerial inquiry, 38 had been declined and 16 were
still under consideration. These figures raise the possibility that the New
Zealand justice system is now facing a crisis comparable to that faced by the
English justice system at the time of the IRA cases.
The discussion paper also notes (p.16) that:
It is important not to undermine the
credibility of the criminal justice process; the prerogative should therefore
be exercised sufficiently rarely to ensure that in most cases trial and
appellate decisions are upheld...
A similar view was taken by the English judiciary at the time of the IRA cases. When the Birmingham Six attempted to bring civil actions against the police and others, Lord Denning ruled:
If the six men win, it will mean that the
police were guilty of perjury, that they were guilty of violence and threats,
that the confessions were involuntary and were improperly admitted as evidence,
and that the convictions were erroneous... This is such an appalling vista that
every sensible person in the land would say: ‘It cannot be right that these
actions should go any further.’ [Quoted in Noble, R, & Schiff, D. Understanding
Miscarriages of Justice. Oxford, 2000]
Lord Denning may have believed that
he was upholding the integrity of the justice system, but to the public he was
denying the men their right to justice, and making the justice system look
The discussion paper focusses on the
need for a more efficient and transparent process for evaluating petitions to
the Governor-General for the exercise of the Royal prerogative of mercy. Two
options are proposed. Regardless of the option used, the paper suggests that,
if the petition is considered to have merit, the case will almost invariably be
referred back to the Court of Appeal (p.21). With regard to the criteria for
deciding whether a petition has merit, the report states (p.17):
The criteria presently relied on by the
Ministry of Justice are informed by the Court of Appeal’s own criteria for
dealing with referrals back. There are probably two reasons for this: firstly,
the paucity of any other sort of authority; and secondly, the need to ensure
that any matters sent back to the Court of Appeal are not subsequently found to
be outside its jurisdiction.
This means that, regardless of the
process used to evaluate the petition, if the most deserving cases continue to
be referred back to the Court of Appeal, and if the court continues to require
fresh evidence when cases are referred back, only cases in which fresh evidence
is available are likely receive favourable consideration by the petitions
Because the Court of Appeal’s requirement for fresh evidence (however flexibly ‘fresh evidence’ is defined) casts a long shadow over this discussion paper, the requirement warrants closer examination.
The Court of Appeal’s view that a miscarriage of justice can and should be recognised only when significant fresh evidence has been produced invites us to regard criminal cases as jigsaw puzzles in which each piece is carefully fitted into its correct place. In any given case, this line of reasoning suggests, even when one piece is missing you can usually see the full picture. Only rarely does a picture look different when the missing piece is slotted into place. In such cases - if the appellant has been convicted on the basis of a picture that is both misleading and incomplete - a miscarriage of justice may be deemed to have occurred.
There are no large-scale, systematic studies into the nature and causes of miscarriages of justice in New Zealand against which we can test this tidy jigsaw-puzzle model. However, studies from the UK and the USA suggest that miscarriages of justice are not caused by the absence of a vital piece from an otherwise perfectly assembled whole. Miscarriages of justice occur because large sections of the jigsaw are in serious disarray. They occur because the justice system has failed, and failed comprehensively at many levels.
1.4 The U.K. Experience:
According to a report by the British
Section of the International Commission of Jurists (Miscarriages of Justice, 1989),
the main causes of miscarriages of justice are:
a) Poor work by some defence lawyers.
b) Cases involving poor police investigation
of the offence and/or police misconduct.
c) Poor work by defence counsel, often
caused by the “late brief”; inadequate preparation, bad tactical decisions and
the failure to call witnesses.
d) Underhand tactics by the prosecution.
e) Poor summing up by the judge but not
sufficiently so to ground an appeal.
f) Bad work by defence lawyers usually
leads to bad advice on appeal. Counsel is unwilling to admit mistakes to the
Court of Appeal or the prisoner must appeal unaided.
g) The majority of cases which come before
the appellate courts are concerned with legal technicalities and not with the
issue of the guilt or innocence of the appellant.
h) A reluctance, over many years, to
interfere where the accused has been legally represented at the trial, however
i) The desire of the Secretary of State,
as part of the Executive, not to be seen to be interfering with the work of the
courts leads him deliberately to ignore most errors which arise under a) to g)
j) Inadequate reinvestigation, usually by
the same police force that conducted the original inquiries into the case.
The common threads in cases examined by the British Section of the International Commission of Jurist over the 30 years prior to 1989 are:
a) Wrongful identification.
b) False confessions.
c) Perjury by a co-accused and/or other
d) Police misconduct, usually in the
allegation of a “verbal confession” which, it is claimed, was never made, or
the planting of incriminating evidence.
e) Bad trial tactics.
1.5 The U.S. Experience:
More recently, as a result of the
work of the Innocence Project in the United States, scores of prisoners who
were convicted by juries, and whose convictions were upheld by appellate courts,
have been shown to be innocent as a result of post-appeal DNA tests.
An analysis of the first 62 cases overturned on the basis of DNA evidence is detailed in Actual Innocence by Jim Dwyer, Peter Neufeld and Barry Scheck (Doubleday 2000). In 52 of those cases there were mistaken eyewitnesses; in one case there were five eyewitnesses, all of whom were wrong. The authors also found that common techniques for police interrogations and lineups could lead witnesses to identify an innocent person. Other factors - including false confessions, scientific fraud, prison snitches, junk science, poor defence counsel and unethical prosecutors - were found to have led to convictions in cases in which DNA evidence had, after the fact, conclusively proved the defendant’s innocence.
In most of the cases examined, the appeals process had included an appellate court finding that whatever errors had occurred were harmless because the evidence of guilt was overwhelming. Clearly, the errors were not harmless. Indeed, they had caused miscarriages of justice. However, in cases in which no fresh evidence (in the form of DNA analyses) was available, injustices caused by such errors were unlikely to be corrected.
If the causes of miscarriages of justice in New Zealand are similar to the causes of miscarriages of justice in the UK and USA (and anecdotal evidence suggests that they are), the requirement for significant fresh evidence before a petition for the prerogative of mercy is taken seriously will effectively ensure that most miscarriages of justice will be neither identified nor corrected. The UK and USA findings indicate that the flaws in a justice system that cause miscarriages of justice can be identified and corrected only through a thorough examination of the entire case, regardless of the presence of absence of fresh evidence.
2 Impugning the jury's fact finding role (The Legal Issue)
On the question of determining when
and how to exercise the Royal prerogative of mercy, the discussion paper states
... care must also be taken not to impugn the jury’s
fact finding role.
and adds (p. 19):
... in practice, while “injustice or the appearance of injustice” is said to be the overriding consideration, this conclusion is rarely, if ever, reached in the absence of fresh evidence, or the kind of mistake or misconduct during the investigation or trial that would provide grounds for a normal appeal. This is probably because those are both concrete indications that the criminal justice process may be flawed; a finding of possible miscarriage of justice in their absence raises the spectre of the Executive simply substituting its view for that of a jury or judge.
In my own review of the history of
legislation aimed at correcting miscarriages of justice (p.587-590 A City Possessed), I found that whenever
such legislation was passed, it invariably contained a provision for cases to
be reviewed if their verdicts were against the weight of the evidence. The
parliamentary debates related to these provisions make the law makers’
intentions clear: if a jury verdict is plainly wrong, that verdict can and
should be overturned. This means that, contrary to the claims made in the
discussion paper, there is nothing improper about overturning a jury verdict if
there is good reason to suspect that an innocent person has been convicted.
Indeed, it would be entirely consistent with the law, and with the intentions
of parliament, to do so.
3. Separation/Balance of Power (The Constitutional Issue)
In theory, if a petition has merit,
the Minister of Justice may advise the Governor-General to pardon the
petitioner. This option may be used irrespective of whether or not the petition
contains fresh evidence. The availability of this option would free the petition
review authority to focus on the central issue (Is the petitioner the victim of
a miscarriage of justice?), unfettered by the limitations imposed by the Court
of Appeal’s requirement for fresh evidence.
This option is effectively rejected in the discussion paper (p.13-14):
of powers considerations may influence the outcome.
There is a natural hesitancy for the Executive to be seen as becoming involved in decisions that have been arrived at through the judicial process. It impacts on the finality of decisions made and, in some cases, it may possibly be seen as impeaching the jury’s verdict. Hence there may be caution in taking action.
are risks to the constancy of the process where a minister, who is subjected to
the scrutiny of parliament, the public and the media, is the source of advice
to the Governor-General.
In contentious cases, it will be open to argument that the advice received and given was influenced by the expectations and pressures that can arise with intense public interest. In such an environment considerations of the application may not be perceived as impartial and devoid of political considerations.
The Ministry considers that it is preferable to be consistent with the constitutional conventions that provide that as far as is possible the Executive and Judicial branches of government should be separate.
In my view, any examination of the constitutional issues related to the separation of powers must also take into account the balance of powers.
In this regard, two points need to be made. The first is that an independent and impartial judiciary is the bedrock of the rule of law. The term separation of powers acknowledges this. The second is that the judiciary is not, and can never be, totally independent. It is one of three principal branches of government, the other two being parliament and the executive. These branches have separate but related functions: parliament makes the laws; the judiciary enforces them; the executive conducts the business of government. The term balance of powers refers to the checks and balances which help to ensure that no branch wields power in an arbitrary or oppressive way.
In the normal course of events, each branch jealously guards its patch. Informal border incursions - which may occur when activist judges stray into law making, or when outspoken politicians criticise judges’ rulings - are widely condemned. Formal border incursions - which are required from time to time as part of the business of government - are constitutionally acceptable when carried out by the Governor-General according to strict constitutional conventions.
As Head of State, the Governor-General has the authority to appoint judges, and to exercise the Royal prerogative of mercy. In performing these functions, constitutional convention requires that she act on the advice of the relevant minister.
The above analysis indicates that - contrary to the claims in the discussion paper - the Minister of Justice has the proper constitutional authority to advise the Governor-General on the exercise of the Royal prerogative of mercy. The principle of the separation of power requires that the minister should not wield that authority lightly, and should be well advised before doing so. However, the minister should also keep in mind the principle of the balance of powers which requires that, if one branch of government has developed serious flaws and is unable to self-correct, the other branches can and should intervene to repair the damage.
4. Being in the Hot Seat (The Public Issue)
The comments in the discussion paper
about the role of public opinion quoted earlier warrant repeating:
There are risks to the constancy of the
process where a minister, who is subjected to the scrutiny of parliament, the
public and the media, is the source of advice to the Governor-General. In contentious cases, it will be open to
argument that the advice received and given was influenced by the expectations
and pressures that can arise with intense public interest. In such an
environment considerations of the application may not be perceived as impartial
and devoid of political considerations.
In my view, this statement is
dangerously misleading. The history of the processes by which miscarriages of
justice have been recognised and corrected, both here and overseas, provides
indisputable evidence that public opinion has a crucial role to play. Indeed,
some of the most glaring miscarriages of justice in world history have been
corrected only as a result of political intervention prompted by intense and
prolonged public agitation. The sorry history of the IRA cases in the UK
supports this point, as does my own less than exhaustive survey of
controversial criminal cases in New Zealand history.
Furthermore, law-abiding citizens have every reason to be concerned if their justice system appears to have failed in its duty to protect the innocent, and even more reason to be concerned if someone they know has lost their reputation and liberty as a result. In a democracy, no matter who is ultimately responsible for deciding whether a miscarriage of justice has occurred, people will inevitably take their concerns to their elected representatives. In my view, those who ask - How can we keep public agitation out of the equation when controversial cases are reviewed? - are asking the wrong question. A better question would be - How can we best factor public agitation into the equation when controversial cases are reviewed?
4.2 The lessons of history:
During most of the nineteenth
century, the Royal prerogative of mercy was exercised by the Governor in
person. The demand that it be exercised only upon the advice of ministers was
conceded to Canada in 1878. The possibility of conceding the demand to the Australasian
colonies was discussed in 1887, but the necessary alterations to the Royal
patent and instructions were not made until 1892, and then mainly because of a
despatch from Lord Onslow on 7 February 1891 concerning the grant of a pardon
to convicted murderer, Mahi Kai. Lord Onslow wrote:
The present practice is attended with much that is
undesirable for the representative of Her Majesty. He is liable to be accused
of being actuated by religious or sectarian motives, or by class prejudice.
Deputations of various kinds wait upon him. The counsel for the prisoner claims
to be allowed to place before him facts alleged to have come to light since the
trial, and thus endeavours to turn the Governor into a Court of Appeal.
Parliament may in its debates endeavour to influence public opinion to put
pressure on the Governor. [Hight, J. & Bamford H. The Constitutional
History and Law of New Zealand, Whitcombe & Tombs, 1914]
Clearly, responsibility for the
Royal prerogative of mercy is a heavy burden. But even when that responsibility
rested primarily with the Governor, the people also took their concerns to
parliament and the executive. Indeed, the findings of my own research suggests
that, despite the best efforts of the Court of Appeal to ignore or dismiss community
unease about possible miscarriages of justice, the public has been remarkably
persistent in continuing to voice its concerns until those concerns have been
taken seriously and properly addressed by the executive.
The earliest high-profile case I came across was that of Walter Tricker of Bulls, who was convicted of murder in 1864. When the executive advised Governor Grey that the state could not hang a man on such flimsy evidence as was presented against Tricker, his sentence was commuted to penal servitude for life.
Over the next six years, the Reverend Stock, chaplain of Wellington Prison, petitioned every Governor and every session of parliament on Tricker’s behalf. Within parliament, Mr Fox (later Sir William Fox) and others championed Tricker’s cause. In 1867, a parliamentary committee considered the case and recommended that the judgment of the court not be disturbed. In 1868, a parliamentary commission conducted a detailed investigation and found that Tricker’s alibi was watertight. Nonetheless, the commission decided that a watertight alibi was not conclusive proof of innocence. Finally, after further agitation inside and outside parliament, the Governor remitted the remainder of Tricker’s sentence. At that point Tricker was freed. But, despite further agitation from his supporters, he was never pardoned.
Another high-profile case was that of Southlander John Meikle, who was convicted of sheep stealing in 1887, and sentenced to seven years in prison. After serving his sentence, Meikle took his accuser to court for perjury, and won. Then he set out to clear his name. A stream of petitions, inquiries and parliamentary debates followed. In 1907, the member for Lyttelton told parliament:
I will guarantee that if the honourable gentleman goes
throughout the length of New Zealand from the North Cape to the Bluff, he will
find preconceived notions in every community throughout the Dominion. Every
person has an idea on the Meikle case. Some believe he is innocent; some
believe he is guilty; some believe he is a libertine; some believe he is a much
maligned man. I say you could not get an audience of people, you could not get
a tribunal in New Zealand, who did not have prejudices one way or another in
connection with this much talked of case.
Eventually, in 1908, 21 years after
Meikle’s conviction, the Meikle Acquittal Act was passed.
The discussion paper notes (p.20) that, when viewed in the light of the inconclusive findings of the 1908 commission of inquiry into the Meikle case, the decision to acquit Meikle by an act of parliament seems hard to understand. However, when viewed as a political response to 20 years of public agitation, Meikle’s acquittal makes more sense.
In 1889, Louis Chemis, an Italian road worker was convicted of murder in Wellington. His sentence was commuted to life imprisonment. Chemis’s supporters, inside and outside parliament, agitated for law changes to allow a retrial on the ground that the verdict was against the weight of evidence. This provision was incorporated into the Criminal Code Act of 1893, but it did not apply retrospectively. So Chemis’s supporters introduced an amendment:
that the prisoner Louis Chemis now in Her Majesty’s
Goal at Lyttelton, under conviction of murder, shall have the right to apply to
the Court of Appeal for a retrial.
The parliamentary debate on the
Chemis amendment has a familiar ring (A
City Possessed p.587-588):
In the course of the Chemis debate, Sir Patrick
Buckley (who became a Supreme Court Justice in 1895) said his duty to his
profession prevented him from approving the Chemis amendment. Mr Rigg (a
printer) said that a man’s duty to his conscience and to his fellow man ought
to be superior to his duty to any profession, and that if a man was innocent,
and wrongly convicted, it was parliament’s duty to see that justice was done.
Mr Downie Stewart (a lawyer) said that constant agitation on behalf of
convicted prisoners was detrimental to the administration of justice. Mr
McGregor (a lawyer) said that legislative interference with a criminal
conviction would create a dangerous precedent. Sir Robert Stout (who became
Chief Justice in 1899) said that he case had already been decided by the court.
Mr O’Regan (a radical lawyer and journalist) said that Sir Robert was bound by
cast-iron precedents, and there were times when the law did not have the
sanction of morality.
The Chemis amendment was passed, but
the Court of Appeal declined Louis Chemis’s application for a retrial. However,
on 22 June 1897, Chemis and 22 other prisoners were released in one of the
strangest and most overlooked events in the history of New Zealand criminal
justice: an amnesty for Queen Victoria’s diamond jubilee.
The two twentieth century cases most relevant to this issue - those of Atenai Saifiti and Arthur Allan Thomas - also deserve mention.
In 1970, in the context of ongoing unrest at Paremoremo Prison, Atenai Saifiti was charged with assaulting a prison officer. When news of his conviction reached the prison, a riot broke out. Ten inmates overpowered four warders and held them hostage in an attempt to secure ‘a new trial for Saifiti’. They refused to release the hostages until they had obtained an assurance that Kevin Ryan QC would act for Saifiti in an appeal against his conviction. Witnesses who had not given evidence at the trial came forward to testify that the prison officer had wrongly identified Saifiti. However, the Court of Appeal dismissed Saifiti’s appeal because ‘a new trial will not be granted in a case where witnesses are available and the accused’s counsel elected not to call them’. In any event, the court concluded ‘that it could not be said that the verdict was unreasonable and was not supported having regard to the evidence’.
As part of their investigations into the ongoing prison unrest, Ombudsman Sir Guy Powles and retired magistrate L. G. H. Sinclair reported in January 1972 that the question of Saifiti’s innocence -
has become, or been built up into, a major source of
trouble and tension in the prison... The case continues to rankle with the men,
and in the opinion of the senior officers a satisfactory solution to the
problem is one of the keys to better relations in the prison...
After making further inquiries,
Powles and Sinclair concluded:
there are substantial grounds for believing that
Atenai Saifiti is innocent .... we think consideration should be given to the
granting of a free pardon... [Report of Sir Guy Powles & Mr L. G. H.
Sinclair on the Atenai Saifiti case].
The comments in the discussion paper
(p.20-21) give the impression that Saifiti was pardoned because Powles and
Sinclair found ‘substantial grounds for believing Atenai Saifiti innocent’.
However, when considered in the light of the senior prison officer’s
observation that ‘a satisfactory solution to the problem is one of the keys to
better relations in the prison’, Saifiti’s pardon could equally be seen as a
political response to ongoing public agitation over a miscarriage of justice.
The long and vigorous public campaign conducted by Arthur Allan Thomas’s supporters receives no mention in the discussion paper. Instead, the paper seeks an explanation for Thomas’s pardon in the wording of the report prepared by Adams-Smith QC. Yet there can be little doubt that Thomas’s conviction would never have been overturned had it not been for the unremitting efforts of his supporters. In any event, according to then Prime Minister Rob Muldoon, the Adams-Smith report was not the primary determinant of Thomas’s pardon. In My Way (Reed, 1981), Muldoon wrote that after receiving Adams-Smith’s report:
We [cabinet] had the alternative of either some
further judicial inquiry, which could only go over old ground, or a pardon.
Without arguing the content of the Adams-Smith report, which could certainly be
argued by those in possession of the facts, it was very clear to cabinet that
the statements in the report, seen by the ordinary citizen, would cause him to
say that Thomas had not been proved guilty ‘beyond reasonable doubt’. It was on
this basis that cabinet recommended to His Excellency, the Governor-General,
that Thomas be pardoned.
When the Muldoon government
instructed the Governor-General to appoint a Royal Commission to inquire into
the circumstances of Thomas’s conviction, other pressures came to the fore.
Mr Justice Taylor of New South Wales agreed to chair
the Commission, as it was impossible for anyone connected with law enforcement
or administration in New Zealand to take part ... Mr Justice Taylor’s conduct
of the case, however, produced extreme opposition and resentment from counsel
for the police - so much so that an application was made to the High Court to
abort the Commission of Inquiry.
In A Passion for Justice, Peter Williams QC, senior counsel for
some politicians and certain judges regarded Thomas’s
crusade as an attack upon the whole New Zealand judicial system ... the vast
majority of police saw the Thomas saga as an all-out attack on them.
It should also be noted that, prior
to Thomas’s pardon, the case had been the subject of two high court trials,
four Court of Appeal hearings, three petitions to the Governor-General, and one
trip to the Privy Council. Of the two pardons that have been granted since the
enactment of the 1961 Crimes Act (Saifiti and Thomas), neither was the result
of a s.406(a) Crimes Act (1961) petition.
5 Statute and Precedent (The Judicial Issue)
The background to s.406(a) Crimes Act (1961) is reviewed in A City Possessed (p. 587-590):
At a constitutional level, the history of the
legislative policy underlying s. 406(a) of the Crimes Act is the history of
ongoing tensions between the right of parliament to make the laws, and the
right of the courts to interpret them. At a social and personal level, it is a
story of politicians passing laws to force the courts to recognise and correct
miscarriages of justice; and of the courts passing judgments to thwart those
In 1895, Louis Chemis’s application for a retrial on the ground that the verdict was against the weight of the evidence was dismissed by the Court of Appeal. In 1901, the court dismissed another application on the same ground [R v Styche]. For the next 45 years, the court used R v Styche as a precedent in its rulings on all further applications on the same grounds.
In 1945, after almost a decade of
agitation on behalf of convicted murderer Eric Mareo, Attorney General Rex
Mason introduced the Criminal Appeal Bill. He told parliament that similar
legislation was introduced in England years earlier in response to a case [R v. Adolf Beck] -
where there was a miscarriage of justice, and where
there was no means of putting it right, and where the officials of that day
were not disposed to admit there was any possibility of a mistake, but the
pressure of public opinion was such that it was deemed proper to provide better
facilities for appeal.
S. 17(a) of the 1945 legislation
empowered the Governor-General to ‘refer the whole case to the Court of Appeal’. But, in his introduction to the Bill, Mason
expressed misgivings as to whether the Court of Appeal would honour the
intentions of the new law:
It shows there [in R
v Styche] that the Court had the power to order a new trial if it
considered the verdict was against the weight of the evidence, but it construed
that in such limited terms ... that there is little chance of reopening a
verdict. I will confess that reading the case ... made me wonder whether the
Courts might not construe the powers given by this Bill in the same restrictive
With reference to the 1893 Criminal Code Act,
Those who drafted the code originally had the same
fear ... that precedent encrusts those provisions and limits them, and that
they will then secure a far more limited application than is really intended.
Mason’s fears were well founded. In
1953, when the Court of Appeal considered a referral from the Governor-General
under s.17(a) of the Criminal Appeal Act [In Re O’Connor & Aitken (1953) NZLR 776], it did not apply the
1945 New Zealand statute; it applied a 1942 case-law precedent from Australia
instead [R v Gunn (No.1) (1942) 43 SR
(NSW) 23]. In the Australian case, the judge ruled that matters already dealt
with should not be reopened.
A similar provision for the Governor-General to refer cases back to the Court of Appeal [s.406(a)] was incorporated the Crimes Act (1961). The Court of Appeal took the opportunity to interpret this legislation narrowly in R v Morgan  - the precedent relied on by the Court of Appeal in its rulings in R v Ellis mentioned in the discussion paper.
the number of applications received under s.406(a) Crimes
Act (1961) has risen dramatically in recent years. This suggests that the
justice system may be failing in its duty to protect the innocent.
when public concern is widespread, official attempts to
minimise the problem tend to erode, rather than enhance, public confidence in
the justice system.
the systemic problems found to cause miscarriages of justice
in other jurisdictions are unlikely to be identified or corrected in New
Zealand by any process that depends on the production of fresh evidence.
legislative attempts to force the Court of Appeal to
overturn convictions if the jury verdict is against the weight of the evidence
have been largely unsuccessful.
the Minister of Justice has the constitutional authority to
instruct the Governor-General to pardon victims of miscarriages of justice.
if members of the wider community believe that a miscarriage
of justice has occurred, they are unlikely to let the matter rest, no matter
how many times the courts uphold the guilty verdict.
the assertion that it would be improper for the executive to
advise the Governor-General to exercise the Royal prerogative of mercy, or for
the Court of Appeal or the Executive to overturn a jury verdict, is legally and
despite the misgivings of those who raised constitutional
and legal objections to the pardoning of Arthur Allan Thomas and the
establishment of a commission of inquiry into his case, the justice system was
not damaged by these events. Indeed, the acknowledgement of long suspected
problems may well have enhanced public confidence in the administration of
justice in this country.
7 Finding a solution (The Executive Issue)
In my view, the possibility that our
own justice system may have developed flaws comparable to those revealed by the
English IRA cases needs to be faced up to before the pile of applications under
s.406(a) grows any higher. There are
major issues of justice, and of public confidence, at stake.
One way of addressing the issue may be to appoint a one-off Royal commission of inquiry into the criminal justice system similar to the one established in the wake of the IRA cases. In New Zealand, the grounds for convening commissions of inquiry were discussed in the report of the 1966 Royal Commission on Tribunals of Inquiry:
The history of inquiries ... shows that from time to
time cases arise concerning rumoured instances of lapses in accepted standards
of public administration and other matters causing public concern which cannot
be dealt with by ordinary civil or criminal procedures but which require
investigation in order to allay public anxiety.
New Zealand law allows commissions
of inquiry to investigate and report on any question arising out of or
concerning: the administration of the Government; the working of any existing
law; the necessity or expediency of any legislation; the conduct of any officer
in the service of the Crown; or any other matter of public importance [Commissions
of Inquiry Act 1908].
In the light of the pressures brought to bear on the commission of inquiry into the Thomas case, a commission of inquiry into the New Zealand criminal justice system would need to be headed by a senior overseas judge. The attacks on the New Zealand judge who produced a robustly independent report on the Erebus Inquiry reinforces this point.
In addition to determining the merits of each petition, and making a recommendation for a pardon or some other action, a commission of inquiry into our criminal justice system could examine the causes of the rise in the number of petitions, and make recommendations for measures to reduce their number, to improve the administration of justice, and to enhance public confidence in the justice system. In the process of doing so, the commission would also demonstrate that community concerns about miscarriages of justice were being taken seriously.
Among other things, a commission may well recommend the establishment of an independent petitions review authority of the sort proposed in the discussion paper.
The problem of miscarriages of justice can never be completely fixed. However, it can be minimised, and the only way to minimise it effectively is to ensure that the entire justice system works better at every level.