The case for a Criminal Appeals Review Office

In the aftermath of the David Bain acquittal, former Green MP Nandor Tanczos has blogged in support of a Criminal Appeals Review Office:

Former High Court judge Sir Thomas Thorp, in his 2006 report into miscarriages of justice in New Zealand, suggested that as many as twenty people might be wrongfully imprisoned for serious offenses in New Zealand. He cited work in 2002 by Bruce MacFarlane, the then Deputy Attorney General of Manitoba, on what factors make a miscarriage of justice more likely.

MacFarlane listed four predisposing factors: public pressure for a conviction, unpopular defendants, lawyers turning the process of trial into a game, and noble cause corruption – that is, persuading witnesses to alter their testimony, or planting evidence, because police genuinely believe that the person charged is guilty.

He also listed eight direct causes. These were: eyewitness misidentification; police mishandling of the police investigation; inadequate disclosure by the prosecution; unreliable scientific evidence; using criminals as witnesses, such as jailhouse informants; inadequate defence work; false confessions; and misleading circumstantial evidence. He said that these factors are present throughout the Commonwealth jurisdictions. There is no doubt that they are present in a number of cases in New Zealand. Personally I believe that the convictions of Peter Ellis and John Barlow also need to be reviewed, but to go further, I am convinced that Scott Watson is entirely innocent of the killing of Ben Smart and Olivia Hope in the Marlborough Sounds in 1997.

Whether he will get a chance to show it is another matter. Wrongful convictions are incredibly difficult to overturn, because of the design of our appeal system. Once a jury has convicted, appeals can only be, by and large, on points of law. There are good reasons for this, but it does mean that substantive problems do not get picked up in some cases.

The last resort in such cases is a petition to the Governor-General for a retrial or for a pardon. These are handled internally by the Ministry of Justice and the process is ad hoc and entirely unsatisfactory. That’s why justice Thorp’s main recommendation was for an independent Criminal Appeals Review Office, as exists in Canada and the United Kingdom. Many prominent lawyers, the Criminal Bar Association and the Law Society have all echoed Sir Thomas’s call, especially in the wake of the Rex Haig and David Doherty cases. Parliament’s Justice and Electoral Select Committee backed the idea after it looked into the petitions calling for an inquiry into the Peter Ellis case.

I agree with Nandor.

And as well as Scott Watson and Peter Ellis, I would suggest that David Tamihere needs to be added to the list. The Police evidence has already been found to be shonky, but I guess, as a Maori guy who already had a record for serious criminal offending, Tamihere didn’t stand much chance.

Being banged up for 13 years, as Bain was, for something there was eventually shown to be insufficient evidence to prove someone ever did is a very bad look.

The Greens’ proposal for a Criminal Appeals Review Office would ensure justice is delivered much more promptly.

6 thoughts on “The case for a Criminal Appeals Review Office

  1. Toad, totaly agree with you and Nandor, we should have a Criminal Appeal office.

    But why bring racism into it?

    Or is that an angle to bring a seperate Criminal Appeal Office for Maori?

    One has to be careful when advocating for reform, to stick to facts, not racist claptrap.

    The message will be the more powerful for it.

  2. Gerrit

    I think there is good evidence that there is racism in the justice system. Statistically speaking, Maori are more likely to stopped randomly by police, are more likely to be prosecuted for minor offences rather than be let off with a warning, and tend to recieve harsher sentences eg more likely to go to prison for the same offence. Te Puni Kokiri did a report back in the early part of the decade, but it was basically censored.

    But those factors don’t apply here. I haven’t seen any work demonstrating that Maori are more likely to be wrongfully convicted for serious offences. A worthy subject of study – although difficult to prove I’d say.

  3. Because Maori commit the disproportionate volume of crime, they are naturaly more suspect.

    Reality toad.

    If Maori dont want to do the time, simply dont do the crime.

    Go and visit any courthouse and look at the racial group over represented in the dock.

    It is not that they are picked on for minor offences, they are there because they committed ALL types of offences.

    We recently cought a young Chinese student carrying out burgalaries in our neighbourhood. After summary justice he was back in the neighbourhood (his family live here) but ALL kept a close eye on him. Are we victimising him. No, just looking after the neighbourhood.

    Similaly the community is not victimising Maori, just looking after the community.

    Maori have a choise, live in the community and abide by the laws that govern it, or face the wrath it can inflict.

    Just like our Chinese burglar, they will be welcomed back into the community after trust has been rebuilt.

    Until Maori face up to their over represented in our judicial system and the answer to that looks at them from the mirror, nothing will change.

  4. Gerrit –

    Have you ever been stopped for ‘driving while white’, in your own car, in your own neighbourhood, and asked if you belong there? Simply for the colour of your skin, asked if you are in the area to commit a burglary?

    Perhaps the grand influx of ex-Afrikaaner and UK police staff in the past 5 years has slipped your consciousness, but it’s a fact that we have one of the most racist Police forces in the world now here in NZ.

    It is a frequent occurrance to hear racist slurs from Police on protest duty, aimed at protesters who are, in the words of one officer who spoke to me, ‘kaffir-lovers’.

    Tolerance and a peaceful, democratic society are the attributes that attracted a lot of immigrants to this country; not the least of whom were the British settlers, of working-class origins, who came here in the beginning, to create a country where all could attain a better standard of living than what was available in the ‘old country’.

    That we allow racist policing to make such a security unattainable for some sections of the community is untenable. So those of us with some understanding of social justice, jurisprudence and the principles of democracy have a tendency to speak out when we see violations of those ethical standpoints.

    Toad, Nandor – well put!

    … so much media, so little common sense .. I got tired early, this weekend.

  5. keeping an eye on the guy because he did a crime is not the same as then deciding that all chinese people are suspect. The point of the research I mentioned is that Maori people are more likely to be subject to the above than pakeha people of the same circumstances (same criminal history if any, same economic circumstances etc

    I mean, men proportionately commit the largest volume of crime too. Should we therefore condone the system treating all men as suspects? Or treating them more harshly than women? (Actually I suspect it does!}

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