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The Dominion Post
September 20, 2003
Power to pardon in new appeal body
by Martin Kay
Some of New Zealand's most controversial criminal
convictions could be reconsidered under proposals to overhaul the appeal
system.
The Justice Ministry has recommended the establishment of an independent
board to consider possible miscarriages of justice.
The board will have the power to recommend pardons or refer cases back to the
Court of Appeal for a new hearing.
The move could pave the way for some of New Zealand's most contentious
cases, such as the conviction of Peter Ellis for child abuse at the
Cristchurch Civic Creche, to be re-examined.
Ellis -- who was freed from jail in early 2000 after serving seven years of a
10-year sentence -- has always maintained his innocence.
But Justice Minister Phil Goff has refused to order a public inquiry into the
case because Ellis's defence team has failed to produce any evidence that was
not available at his 1993 trial.
A ministry discussion document on its proposed changes points out that fresh
evidence is not a pre-requisite for a case being reconsidered.
But it concedes fresh evidence is often the main determining factor.
The proposed independent body -- headed by a retired judge -- would have the
power to consider a case on all its merits.
Fresh evidence would be just one factor among many, such as police conduct,
that could be considered.
It would also remove the process from the ministry, an issue of concern
because the existing system contradicts the separation of the state from the
judicial process.
Presently, all applications for the governor-general to apply the royal
prerogative of mercy are investigated by ministry staff behind closed doors.
Applicants are often told why an application is turned down but have no right
of reply.
That will change under the ministry's proposal, which is modelled on changes
introduced in Britain
in the 1990s.
Britain's
Criminal Cases Review Commission has considered hundreds of convictions, many
of which have been quashed after referral back to the courts.
Ellis welcomed such a body being established in New Zealand.
"If a bad decision has been made, then the Government has got to stick
with that decision and that is wrong. I think that's what that document is
sort of trying to say. The Minister of Justice can't just sit there and say
`we're right'."
Colin Withnall, QC, who represents David Bain, convicted of the 1994
rifle-murders of his family, also welcomed the move.
However, he said the legal profession would prefer any new body was not
headed by a former judge.
Bain's case has just been reheard by the Court of Appeal, a rare move and one
that took his defence team years to achieve.
Mr Withnall said an independent body could have allowed the case to be
reheard sooner.
A spokesman for Mr Goff could not say when the recommendations would be
introduced.
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