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Opinion
Part 3 Principles guiding the exercise of
prerogative powers to correct miscarriages of justice
3.1
Under
the title "Criteria for the Grant of a Free Pardon" the Ministry's
Report advised that -
·
"The grant of a free pardon
is extremely rare in New Zealand. The only recent occasions of which we are
aware concerned Arthur Allan Thomas and the posthumous pardon granted to
Mokomoko "
·
"In general a full pardon is
normally entertained only if there is compelling evidence that a person could
in no circumstances have been properly convicted that is, in cases where no
reasonable jury, apprised of all the relevant evidence, could have found the
accused guilty "
·
"It seems undesirable, in
general, for the executive branch of government to consider the grant of a
free pardon in circumstances where the issues are still capable of being
considered and 'determined by the Courts, whether pursuant to a reference
under section 406(a) of the Crimes Act 1961 or otherwise "
It is
necessary to examine two aspects of that advice - its threshold test for
"miscarriage of justice," and the question whether an applicant for
the use of prerogative powers must first exhaust other available remedies.
3.2 Threshold Tests
The
published details relating to the Thomas pardon suggest the use of a lower threshold
than that adopted in the Ministry's Report. Thomas' pardon emanated from an
inquiry conducted by Mr Adams-Smith QC. His report advised –
"There
is nothing arising as the result of my investigation which established in my
opinion, that Arthur Allan Thomas is innocent of the murders.",
"I have real doubt whether it can properly be contended that the case
against Thomas was proved beyond all reasonable doubt."; and
"It seems that an injustice may have been done."
The
central provisions in the pardon document are a recital that it had been
"made to appear from a report to the Prime Minister by Robert Alexander
Adams-Smith QC that there is real doubt whether it can properly be contended
that the case against the said Arthur Allan Thomas was proved beyond
reasonable doubt", and the immediately following operative provision –
"Now
therefore I, Keith Jacka Holyoake, Governor-General of New Zealand, acting
upon the advice of the Minister of Justice, hereby in the name and on behalf
of Her Majesty grant a free pardon to the said Arthur Allan Thomas in respect
of the said crime."
An
essentially similar threshold has been used by the Court of Appeal when
dealing with applications under s406 - see e.g.
R v Morgan [1963]
NZLR 593, 597 - "We do not feel that we can say that a jury might not
give the appellant the benefit of the doubt";
R
v Farmer [1991] 3 NZLR 450, 456 which adopted the language of Morgan, and
Sims
v R (1997) CA 489/97, decision 19/12/97, which at p3 reviewed the
authorities and again adopted Morgan.
At my
request the Ministry searched its files to ascertain the basis upon which
other pardons had been granted in New Zealand this century. It located seven
cases. I agree with its assessment that only two are helpful in the present
instance, the others being posthumous pardons granted in the context of
settlements between Maori and the Crown intended to restore the reputation of
tribes involved in the Maori Wars, or pardons granted to remove the stigma of
convictions for technical offences. The two cases having some similarity to
this case and Thomas relate to the pardons of Meikle (1908) and Saifiti (1972).
In Meikle,
Edwards and Cooper JJ were appointed commissioners to advise the Government
whether the conviction for perjury of a witness against Meikle established
the latter's innocence or a reasonable presumption of his innocence. They
held it did not do either, but proceeded to answer the further question (not
referred) whether the totality of the evidence available to them would have
established Meikle's guilt beyond reasonable doubt. They found that if the
proceedings before them had been a retrial "the evidence of his guilt is
so far from conclusive that it would on such a retrial have been proper to
acquit the claimant, and we should have so stated to the jury". An act
was then passed (Meikle Acquittal Act 1908) which did not in terms pardon
Meikle, but did reverse the verdict against him and remove all record of his
conviction.
In Saifiti
a Ministerial Inquiry by Sir Guy Powles and Mr L G H Sinclair found
"substantial grounds for believing that Saifiti was innocent of the
offence of which he had been convicted". They considered whether it was
an appropriate case for reference back to the Court of Appeal under s406 but
concluded that "in view of the time which has elapsed since the
incident, the difficulties that would be encountered in gathering together
the witnesses for a new trial and the almost certainty of an acquittal if Mr
Cumming retracts the evidence he formally gave", consideration should be
given to the granting of a free pardon. The pardon document recites the
Inquiry's finding of substantial grounds for believing that Saifiti was
innocent as the basis for the pardon.
So far as assistance can be gained from such a small pool of precedent, it
appears to establish that while "substantial grounds for a belief in the
petitioner's innocence" were the basis of the grant to Saifiti,
progressively lower thresholds were considered sufficient in Meikle and
Thomas.
There is good authority for the proposition that the role of the pardon in
the criminal justice system is as a unique constitutional safeguard against
mistakes: (Burt v Governor- General [1992] 3 NZLR 672 and R v
Secretary for State for the Home Department, ex parte Bentley [1993]
4 Ail ER 442). If it is to serve that purpose it must be inappropriate to
impose rigid limits upon its exercise. There can in my view be no precise
definition of boundaries. At the most what can be determined would be
guidelines for its use.
At that level I would accept the contention that the threshold for referring
an issue under s406 may be lower than that which would support the grant of a
pardon However, it is in my view difficult to articulate sound reasons for
distinguishing between the level of risk of miscarriage of justice which
should persuade a court to quash and that which should persuade the
Governor-General to pardon Of course, while the threshold may be the same,
the way in which it is attained may differ A pardon could be justified on the
basis of relevant and credible material not admissible in evidence and
therefore not able to be considered by the Court of Appeal on a reference
The UK Royal Commission on Criminal Justice 1992/3 debated at some length
(see Chapter 10 of its report) the appropriate level of risk of miscarriage
of justice The difficulty of the subject is indicated by the Commission's
inability to achieve unanimity A majority favoured the adoption of the test
whether the conviction "was or may be unsafe" If it was unsafe, the
court should allow the appeal outright. If it believed the conviction might
be unsafe, it should quash but order a retrial unless there were reasons
which made retrial impracticable or undesirable. The minority favoured a more
liberal approach.
Nowhere in its discussions is a threshold proposed at a level higher than
that applied in New Zealand in relation to references under s406. Rather, the
Report, at pi70, noted the decision in R v Cooper [1969] 1QB 267, in which
the Court of Criminal Appeal held it was entitled to quash if it were left
with a "lurking doubt", even if there were no new evidence nor any
irregularity in the trial process. It concluded its examination of the topic
at pi71 with the comment that it should be sufficient if a court were left
with a "serious doubt" about the verdict.
3.3 Should
a Petitioner First Exhaust other Available Remedies?
It is
clear that English practice, prior to the recent establishment of a Criminal
Cases Review Authority, was aimed at encouraging the Courts and not the
Executive to deal with miscarriages of justice in the majority of cases. The
Report of the Royal Commission noted (at p. 180) that the option of pardon –
"is
very seldom exercised when the option of a reference under section 17 is
available, because successive Home Secretaries have been understandably
reluctant to reverse a decision of the courts, preferring instead to ask the
courts to reconsider the case as the statute envisages".
Later, at
p 184, the Commission opined that if a new authority were set up –
"it
will be seldom if ever necessary or desirable to exercise the Royal
Prerogative in cases where it is concluded that a miscarriage of justice may
have taken place To do so would be to override the decisions of the courts,
whose function it is to properly determine such cases."
3.4 Summarising all the above in relation
to the advice in the Ministry's Report as to the threshold test and as to the
necessity or desirability of exhausting other remedies before considering
pardon against the circumstances of this case
·
In my view the threshold test for
miscarriage of justice should not be higher if the issue is pardon than where
the issue is whether or not a conviction should be quashed
At most it should suffice if the material submitted in support of a pardon
raises "a serious doubt" as to the adequacy of proof of guilt
·
As to the desirability of
exhausting other legal remedies, including reference under s406, before
considering the grant of a pardon, while there cannot be any rigid or
definite limits to the exercise of the prerogative of mercy, there are sound
policy reasons, such as were articulated by the Royal Commission on Criminal
Justice, for maintaining a general rule along those lines
There will be exceptional cases to which that general rule would not apply,
as for example where there is clear and positive evidence of innocence The
present case, however, appears to me to come into the same category as those
of Meikle
and Thomas, in that here too the material provided does not
establish innocence, and the ultimate issue will be whether it establishes an
appropriate level of doubt about the sufficiency of proof of guilt.
Further, the alternatives in this case are not pardon or reference The
question of the Petitioner's convictions has already been referred to the
Court of Appeal I do not see in the material provided any such clear and
cogent reasons as would be necessary to justify pre-empting the decision of
the Court on matters which the Governor-General has already put before it.
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