|
Opinion
Part 6 Should all remaining issues be referred? -
and alternatives to reference
It will be
apparent from the foregoing that in my view the existing Reference is too
narrow to permit adequate consideration of all the issues fairly raised by
the Petitions However before broadening the Reference it is necessary to
consider both –
·
The Petitioner's claim that the
Court of Appeal is "not the appropriate body to carry out an
investigation or to inquire into the merits of a conviction where an inquiry
would be necessary to obtain justice"; and
·
The Court of Appeal's expectation
that that "any wider reference would obviously respect the role of an
appellate court and would not include matters more appropriate for
consideration by a Commission of Inquiry".
6.1 Is the Court of Appeal the Appropriate
Body to Determine the Issues Now Identified as Requiring Further
Consideration?
The
Petitioner calls in aid of his claim that justice in this case would not be
achieved by a reference to the Court of Appeal the recent reconsideration by
England and Australia of the adequacy of their criminal appellate structures.
In England that reconsideration was motivated by a series of findings of
miscarriage of justice following the rejection of appeals by the Court of
Criminal Appeal The need for some reform was suggested by Sir John May in
reports made by him reviewing two high profile cases, those relating to the
Guildford Four and the Maguire Seven He questioned whether the Court of
Criminal Appeal had the necessary expertise "to initiate, let alone
control, the necessary investigations that may have to be carried out in any
particular case" He suggested establishing a new body to consider and
investigate claims of miscarriage of justice and to refer those found to have
substance, with the results of its investigation, to the Court of Criminal
Appeal. This resulted in the establishment in 1993 of a Criminal Cases Review
Commission, which has its own investigators but also calls on regional police
forces to undertake investigations when necessary.
In Australia a number of commissions have been set up in recent years to
inquire and report on claims of miscarriage of justice. The two best known
have been the Chamberlain Commission, which was set up by special Act, and
the Wood Commission, set up by exercise of prerogative powers under Letters
Patent. Justice Wood has expressed the view that the limitations seen by Sir
John May in the ability of the English appellate courts to deal with claims
for miscarriage of justice which require large-scale factual investigations have
been replicated in Australia.
The question whether some variant of the English reforms might be helpful in
New- Zealand was considered by our Court of Appeal in Burt. At 681/19 the
Court preferred the use of "independent lawyers of standing" to
carry out investigations if that were necessary, and at 682/28 declared that
–
"If
there were good reason to believe that injustices as revealed by some English
cases are occurring or likely to occur in New Zealand under our present
system, we would be disposed to favour any form of increased judicial review
that could help to prevent this. But we are not satisfied that there is good
reason. The existing safeguards are considerable and there is no real
evidence that they are not working."
There
would be difficulties establishing an independent and effective review body
in New Zealand. If its workload did climb to a level proportionate on a
population basis to that in England it would still have insufficient business
to justify a full-time commission, and would refer less than one case per
year for further consideration by the Court of Appeal. We do not have numbers
of regional police forces accustomed to providing independent oversight of
one another's activities if that is needed.
But in any event for present purposes the critical fact is that no equivalent
of the English Commission is available here, and the question is how best to
achieve consideration and resolution of the issues raised by the Petitions,
using the procedures which are available for that purpose.
6.2 Would Reference "respect the role of an appellate
court and not include matters more appropriate for consideration by a
Commission of Inquiry?"
While
fact-finding is not the primary function of an appellate court, it must be a
common concomitant of Section 406 references, which frequently ask the Court
to assess the significance of fresh evidence.
Unlike the Petitioner's counsel I do not read the Court's cautionary comment
as indicating a determination to limit the scope of the reference, but rather
as advice that it would prefer not to be asked to undertake a major factual
investigation. It may also indicate some sympathy with the views expressed by
Sir John May and Justice Wood about the awkwardness of such exercises.
Apart from Burt there is little New Zealand authority on the manner in which
"necessary factual investigations" should be undertaken. The
overseas cases indicate that the "appellate role" on a reference
can vary widely according to differences in the constating legislation and in
the terms of the references The Canadian legislation expressly contemplates
its Supreme Court examining issues of fact as part of a reference In Truscott
[1967] 62 DLR (2d) 545 it received a large body of evidence, including oral
evidence from the accused/petitioner who had not given evidence at trial The
English legislation was until 1993 much closer to our own. In Swabey [1972] 1
WLR 925 an English Court saw the wording of the reference as determining the
scope of the Court's inquiry, and accepted that a sufficiently specific
reference could require it to undertake a review which it would not
ordinarily favour It decided that the reference it had to consider was not
sufficiently specific to require it to expand its normal horizons
It must be relevant to this question to look at each of the matters for which
a need for reconsideration has been made out, and endeavour to assess how
substantial the factual content of each is likely to be. Looking then in turn
at the different issues –
(a) Interviewing Techniques
The
question whether the interviewing techniques used in Christchurch may have
led to a miscarriage of justice, which has already been referred, is in my
view one appropriate for determination by the Court of Appeal, provided of course
that it has the benefit of appropriate expert evidence. That question does
not require the Court to consider and settle model interviewing techniques, a
task which certainly would be more appropriate to a broad based inquiry or
working party, such as was used for that purpose in England. Rather it asks
the Court to determine whether the procedure adopted in Christchurch in
1991/92 was materially defective. While that exercise will require the
consideration of opposing professional views, if professional views do in
fact remain in conflict, that is not an unusual task for the Court to
undertake.
(b) Contamination
It is
likely that the information presently available on this issue is only part of
that which might be found by a complete investigation, which would presumably
include the examination of police and SSU records. It is however unclear how
much additional evidence such an inquiry would in the end provide With the
passage of some seven or eight years since the relevant events it is likely
both that some relevant information will have been lost and that some of
those involved in the investigation will be reluctant to revisit it.
I do not find the question whether determination of this issue would fit
comfortably within the role of the Court of Appeal at all easy. It may be
that on this point the Governor-General would do better to take his own
advice. However as best I can judge -
· There is within the existing
record, and within the new material now
submitted which could be re-formatted into evidence, a sufficient body of
evidence to justify the issue being referred, and
· If the question is considered on the
basis of that evidence and such evidence as the Crown may adduce by way of
reply, it should not involve such a wide factual investigation as would point
strongly against referral
(c) Restriction of Consideration of Allegations by Complainants
Which Were Not the Subject of Charge
Provided
the Court were content to deal with the interviewing technique and
contamination questions, it should have no particular difficulty in
considering this issue The material requiring consideration would appear to
be limited to the transcripts of interviews of the six complainants, either
one or two of the oral rulings, and the expert evidence, most of which it the
Court would already have considered in relation to the "children's
evidence" issues.
(d) Jury and
(e) Non-Discovery Issues
While
involving a limited amount of evidence, both are matters within the ordinary
ambit of the Court's business and eminently suited to determination by it.
While that analysis concludes that a reference of each of those five
questions would not be inappropriate, the reference of all five for hearing
at one sitting would require a considerable investment of the Court's time
and clearly involve the likelihood of further delays. That circumstance and
the undesirability of further avoidable delays would in my view justify
including in the reference a request that the Court consider any application
by the parties that it hear in the first instance some only of the referred
issues or, failing agreement by the parties, that it look first only at the
"children's evidence" issues Whether or not that procedure enables
progress to be made at the present fixture, it would at least ensure that
consideration was given to that possibility.
6.4 Alternatives to Reference
These
appear to be –
·
The appointment of an
Investigator, as considered in Burt
·
The establishment of a Commission
of Inquiry; or
·
The grant of a free pardon
It should
first be noted that neither the first or the second would meet the present
situation unless the Court of Appeal, on receiving advice that such a step
had been taken, were content to adjourn the existing reference until the
results of the investigation or inquiry were known.
6.5 The Appointment of an Investigator
Despite
the support given to this procedure in Burt, I have reservations about its
adoption in this case. If there are to be further factual inquiries, I
believe it would be desirable to have the powers of a Commissioner to gather
evidence, and not to have to rely on the voluntary cooperation of those from
whom inquiries would have to be made
6.6 Appointment of a Commission of Inquiry
There is
some but only limited precedent in this country for such a course (Meikle and
Saifiti) The Commission in Thomas followed the grant of a pardon.
One advantage of this alternative would be that the Commission could serve
the further purpose of considering such broad questions as the suitability,
in the light of modern understanding of the problems of obtaining evidence
from young children, of the existing New Zealand provisions in that regard'
but that topic appears to be under examination by the Law Commission, and not
to need a separate investigation.
On the other hand it would involve further delay in resolving the
Petitioner's position, and would have to face the likelihood that some at
least of the complainants and their families would not wish to revisit the
traumatic events of 1991 and 1992, and would elect not to assist the enquiry.
It is not at all certain that an enquiry would achieve any substantial
clarification of the central issues beyond what could be achieved now, or
that it would not disadvantage the children involved, who presumably have
long since put these matters behind them.
In my view the disadvantages of this alternative probably outweigh its
advantages.
6.7 Pardon
Part 3 of
this opinion discussed and supported the proposition that the grant of a
pardon should as a general rule only occur after the exercise of any other
available remedies. It saw as the only recognised exception to that rule
cases where there were substantial reasons for believing that the petitioner
was innocent.
In this case, as in Thomas and Meikle, the evidence does not positively
establish innocence. Here too the issue is whether, together with such
further information as is now available, it sufficiently establishes guilt.
In my view this is a case where the general rule should apply, at least at
this time If it later appears that the reference to the Court of Appeal
cannot proceed, or that that course would involve unacceptable further
delays, the option of pardon will need reconsideration.
|
