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The Christchurch Civic
Creche Case |
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A Justice ministry review has
recommended setting up an independent board, perhaps chaired by a retired
judge, to investigate wrongful conviction claims. The proposal echoes Justice Minister Phil Goff this
week acknowledged the system for dealing with mercy pleas was stressed, slow,
and placed too much power in the hands of government. A change could be
ushered in as soon as next year. It cannot come soon enough for Nigel Hampton
and Judith Ablett-Kerr, both senior Queen’s Counsel, and both highly critical
of the handling of petitions. “It’s been terribly arbitrary”
says Mrs Ablett-Kerr, who acts for Ellis. “There is no consistency of
approach, no transparency, and little accountability.” In truth the Governor General has
very little to do with mercy pleas, taking advice from the Justice Minister,
who in turn looks to officials. Deep within the bowels of bureaucracy, at the
Justice Ministry, is where the real power resides. Here the legal advisors
decide the course a petition will take. Warren Young, deputy secretary of
Crime Prevention and Criminal Justice, confirms the ministry uses a “weeding
out process” to determine whether any outside expertise will be sought.
Controversial or complex petitions are often handled in-house by ministry
lawyers, then referred to a QC or retired judge for peer review.
Alternatively, officials might encourage the Minister to appoint a QC or
retired judge to do the whole assessment and provide direct advice. Mr Hampton says this “haphazard”
approach erodes confidence in the system, and fuels the public outcry which
often accompanies controversial verdicts. The undying debate over Ellis,
found guilty of abusing children at the Christchurch Civic Crèche, is a prime
example; Bain’s conviction for murdering his Mr Hampton says launching an
independent authority to investigate wrongful conviction claims would restore
confidence and sweep away the doubts. “There is a need to assuage the
public mind that we are not having miscarriages of justice occur in cases
(that are) unable to be remedied,” he says. His call carries considerable
weight; Hr Hampton is a former Chief justice of In December 2001, he lodged a
second mercy plea on behalf of convicted murderer Rex Haig – and is still
fuming about the treatment of the first. Almost two years went into building
what, in Mr Hampton’s view, was a compelling argument supported by cogent new
evidence. Parliament was last week told that the Haig petition included
statements from twelve people implicating star prosecution witness David
Hogan in the Death of Southland fisherman Mark Roderique. Mr Hogan, given a
$13,000 police reward and immunity from prosecution, had allegedly admitted
sole responsibility for the killing to five of the witnesses, ACT justice
spokesman Stephen Franks told the house.
In February 2001, 17 months after it was submitted, the first Haig
mercy plea was declined. Mr Hampton says his surprise at
the delay turned to “incredulous astonishment” when he discovered the
petition had been internally assessed by two ministry lawyers, without the
benefit of a full, independent review. Essentially, the justice officials
produced a 22 page advisory report without making any independent inquiries.
None of the nine witnesses (three of the twelve are now dead) were spoken
too; nor was the crown Solicitor who prosecuted Haig. The report concluded
that the evidence in the Haig petition failed to meet the two criteria for a
referral to the Court of Appeal, namely: It was not “fresh” (defined as evidence not available at the
trial, or reasonably discoverable by the defence). It was not so compelling as to
point to a likely miscarriage of justice. At Haig’s trial, the jury heard
evidence that Mr Hogan had twice claimed sole responsibility for shooting
Roderique. Mr Franks told Parliament that with the petition were sworn
statements from twelve people who directly or indirectly implicate Mr Hogan
in Mr Roderique’s death. According to the ministry’s report, however, this
“simply confirms the material that was before the jury at the time of the
petitioner’s trial”. Mr Hampton is scratching his beard over that one. “That
redefines ‘fresh’ entirely,” he says. “If they used that sort of criteria, it
would mean that it wouldn’t matter it was the most comprehensive, detailed,
and corroborated confession in the world that was given – say a death bed
confession. On the basis of the reasoning of the officials, that would not be
fresh evidence if that person had said in passing at an earlier stage that he
or she had been guilty. “Now that’s got to be nonsense. The post-trial
admissions (referred to in the Haig petition) simply didn’t exist, so they’ve
got to be fresh evidence.” The report argued that “it was open to the jury to
accept or reject Hogan’s evidence at trial ... and there is no fresh and
compelling evidence available that suggests that a miscarriage of justice has
occurred.” Auckland QC John Billington gave
the only outside appraisal of the ministry’s advice. His “review” amounted to
a 1 ½ page letter, in which he endorsed the report and its findings. Wrote
Billington: “I have deliberately not undertaken a detailed analysis of the
petition, (witness) affidavits and your report, as I am satisfied that you
have covered all relevant issues, both factual and legal.” In his second submission to the
Governor-General, Mr Hampton says the original ministry advice contained
errors, omissions, and deficiencies which amounted to a “denial of justice”
to Haig. He also lashed the ministry for ignoring the combined effect of the
evidence. “It was a policy, in effect, to isolate and divide, deal with each
point alone, and not look at the cumulative substance,” Mr Hampton argued. “That was, it is submitted, an
error. It fails to give proper consideration to what must be the over-riding
criterion here, namely whether there has been the possibility of a miscarriage
of justice.” The ministry would not talk to the
Press about its handling of the Haig petition while a second mercy plea is in
the works. This time round the Haig petition has been referred to Colin
Curruthers, QC, for independent advice. One of our questions to the ministry
is simply this; why did that not happen in the first place? Mr Hampton is delighted to hear
mercy pleas could soon be hoisted from what he regards as a bureaucratic
backwater to allow “the whole matrix” to be explored. “But it has taken some difficult cases and
some crises from those cases to seemingly provoke the Government into
action,” he says. Mrs Ablett-Kerr believes the proposed new authority would
be “a huge step forward”. “I think it needs to move very quickly because there
are people who are languishing in the present inelegant and inefficient
system,\” she says. However, an experienced QC rather than retired judge is
her preference to lead an independent board. “Asking presumably a retired
High Court judge or somebody of that ilk to effectively say three of his
brother or sister judges in the Court of Appeal got it wrong is a bit of a
big call, isn’t it?” The cost
of improving the judicial safety net could be as much as $1 million, Mr Goff
says. Such, he says, is the price of justice. |
