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January 10 2006

Wrongly jailed women lose bid for more compensation
by Tony Stickley

Three young women wrongly jailed for a crime they did not commit have failed in a High Court bid for more Government compensation.

Lucy Akatere, Tania Vini and McCushla Fuataha each served seven months after being falsely convicted of the aggravated robbery of a 16-year-old girl in Three Kings shopping mall in August 1999.

Ms Vini and Ms Fuataha were 14 at the time and Ms Akatere was 15.

In October 2001 the Court of Appeal quashed the trio's convictions, offering them the court's sympathy after being "let down by the system".

"Fatal weaknesses" were discovered in the Crown case, following an investigation by Ms Vini's father, leading to the Crown inviting the Court of Appeal to quash the girls' convictions outright.

Two years later, in March 2003, in a report prepared for the Government, Kirsty McDonald, QC, recommended compensation of $135,000 for Ms Vini and Ms Akatere and $137,500 for Ms Fuataha and a Government statement confirming their innocence.

Later that month the Cabinet Policy Committee agreed to make an ex gratia payment in terms of the recommendation, on condition that the girls take no further legal action against the Crown.

However, in dismissing their action in a reserved judgment, Justice Patrick Keane said that the girls did not accept this offer.

"They had been advised that Cabinet criteria entitled them to significantly more. Their advice was that the Cabinet had misapplied its own criteria."

The girls' lawyers maintained in the High Court at Auckland that the Government's criteria and guidelines were irrational, unprincipled, unworkable, arbitrary and unfair.

However, the Attorney-General argued that the method used to calculate compensation complied with the guidelines.

Furthermore the Attorney-General's lawyers argued, the court had no ability to review the criteria as the Crown was under no duty to make any payment, as payments were made ex gratia.

Justice Keane agreed with the Attorney-General, ruling that the Government criteria and guidelines "mesh coherently and they compensate for all the heads of loss identified against the aggravating and mitigating factors listed".

"They are not unworkable, they are not arbitrary and they are not unfair. Nor can Cabinet's decision be assailed on the basis that Ms McDonald misapplied the criteria. She did not. She applied the criteria accurately," Justice Keane said.

He ruled that the girls' case must fail.

The judge added that declaratory relief would have been of doubtful use to the claimants because "ultimately it is for the Cabinet to say on what terms it will make compensatory payments that it has no duty to make, and to which the claimants have no enforceable right".

If the Attorney-General intended seeking costs against the girls, he would have to file a memorandum by the end of the month, the judge said.