http://www.justice.govt.nz/pubs/newsletter/justice_matter/issue-12/chapter-8.html
Ministry of Justice
Justice Matters
December 2001
Issue 12
Process for Royal prerogative to be reviewed
The process for
dealing with applications for the Royal prerogative of mercy, a safeguard of
New Zealand's criminal justice system, is to be reviewed.
Applications for the prerogative are made to the Governor-General, who refers
them to the Minister of Justice. He in turn seeks advice from the Ministry of
Justice.
Warren Young, Deputy Secretary of the Crime Prevention and Criminal Justice
Group, says consideration of applications currently has to be balanced with
other programmed work and it is crucial that the value placed on the
prerogative is maintained. He says the quashing of the conviction of David
Dougherty for rape highlighted the value of the availability of the Royal
prerogative.
Applications referred to the Minister are usually considered by the Ministry's
Criminal and International Law Team, whose advice is often then reviewed by the
Ministry's Office of Legal Counsel, headed by Val Sim,
before being passed to the Minister.
"This creates a reasonably robust two-tier phase for considering the
application," she says.
Applications may also reviewed by a Queen's Counsel (QC) or former judge.
Sometimes the Ministry will refer the application as a whole to a QC or a
former judge for investigation.
Val says that if there is a substantial risk that a miscarriage of justice has
occurred, the case can be referred to the Court of Appeal, which can quash a
conviction (as happened in the Dougherty case) and, if appropriate, order a
retrial.
While fresh evidence is the usual requirement for the exercise of the
prerogative, Val says it is not unknown for other issues to be raised, such as
the competence of defence counsel.
While successful applications for the exercise of the prerogative are usually
finally decided by the Court of Appeal, the Governor-General also has the power
to issue a pardon. This has only happened in a handful of cases.
In
He says the Commission receives about 800 applications each year, as well as
dealing with a large backlog of cases from prior to its establishment in 1997.
In
"Firstly they check that the person's case is eligible to be considered
for review and, if so, they do an initial investigation to determine whether
there is a real possibility that a miscarriage of justice may have
occurred," he says.
"If substantive issues are raised, the case is allocated to a case review
manager and the issues for investigation are identified. After investigation, a
decision is made by one or more commissioners on whether to refer the case to
the Court of Appeal."
The Commission does not have the power to pardon a person, but can refer a case
to the Home Office for consideration for the exercise of the Royal prerogative.
This has not happened to date.