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The Christchurch Civic
Creche Case |
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Do we have a legal system or a
justice system? Questions are being asked about
how New Zealand's highest court got the David Bain case so wrong. But maybe
they didn't and the finding of the Privy Council is not that David Bain is
innocent. Rather that there were process shortfalls and a re-trial may be
appropriate. The track record of recent appeals
to the Privy Council has seen significant reversals of Court of Appeal
decisions and of course raises a view whether the Government was correct in
abolishing the right of appeal to the Privy Council and setting up an
indigenous Supreme Court. The arguments are well known on both
sides. As a member of the Justice & Electoral Select Committee I well
recall one of the New Zealand judges who appeared before the Committee,
describing the Privy Council as providing a "Rolls Royce service".
The implication was that something of a lesser standard would be sufficient.
A similar argument has been mounted in a domestic context about the service
provided by Diagnostic Medlab. A question of course is - what is
wrong with a "Rolls Royce service"? The New Zealand legal community is
small and the pool from which the judges are drawn is smaller still. So there
is a very strong argument that our Supreme Court would be immeasurably
improved by importeing judges from other Commonwealth jurisdictions. The practical problem is that it
would be difficult to secure such foreign judges because of their own local
commitments. One thing is for sure. We can (and
should) revamp the systems surrounding claims of miscarriage of justice. To
that end I have a Bill in the Members Ballot called the Criminal Cases Review
Tribunal Bill. The explanatory note to the Bill
sets out its content. In December 2005 the Legal
Research Foundation published a study on miscarriages of justice. It noted
that miscarriages of justice occur because of a combination of systemic
conditions many of which remain in New Zealand. It also said that the
frequency of miscarriages of justice in New Zealand had been under-estimated.
The following direct causes of
miscarriages of justice were identified: - Mis-identification which
internationally is believed to be the most common source of conviction error - Jailhouse "confession"
evidence from prison informants - Hair and fibre comparisons which
have later been shown by DNA testing to have reached incorrect conclusions The report recommended that the
task of identifying miscarriages and putting them forward for reconsideration
by the courts should be given to a fully independent and appropriately
staffed and resourced authority. The authority should also have responsibility
for assessing compensation for wrongful convictions. The current arrangements in
respect of the Royal Prerogative of Mercy are set out on the website of the
Governor General at http://www.gg.govt.nz/role/royalprerogative.htm Those arrangements have been
subject to critical comments on at least two occasions. The first is a 2003
discussion paper prepared by the Ministry of Justice - "The Royal
Prerogative of Mercy - A review of New Zealand Practice". More recently the select committee
which looked at the Peter Ellis case made the following recommendation: that there be reform of the Royal
prerogative of Mercy system by the establishment of a body similar to the
United Kingdom's Criminal Cases Review [Commission]. So the Bill sits in the Members
ballot box to resolve a clearly unsatisfactory situation. An alternative
would be for the Government to adopt the Bill. That would certainly be a
challenge to the current tribalism of the Labour Party. Political Quote of the Week "The poor man is not he who
is without a cent, but he who is without a dream." - Henry Kemp -
American Poet (1883-1960) |
