Criminal Cases Review Commission Bill

Thank you, Mr Assistant Speaker. The bill establishes the independent Criminal Cases Review Commission. The commission’s purpose is to review sentences and convictions and decide whether to refer them back to the appeal court. This will replace the power currently exercised by the Governor-General under section 406 of the Crimes Act 1961. Currently, someone who has been convicted of an offence and has reasonable grounds to believe that they might have suffered from a miscarriage of justice may apply to the Governor-General to exercise what is known as the royal prerogative of mercy. By convention, the Governor-General acts on the formal advice of the Minister of Justice, and the work on the prerogative of mercy application is undertaken by lawyers in the Ministry of Justice.

Establishing the commission is an opportunity to enhance this system by having an independent review authority with dedicated staff focused on the mandate to identify and respond to any possible miscarriages of justice. I should emphasise that the design of this commission is informed by the core principles underlining the prerogative of mercy and the referral mechanisms exercised by overseas commissions. The statutory grounds or tests for such a referral would be high, and the commission will have the power to refer the cases back to the appeal courts. It is not the commission’s role to determine guilt or innocence.

Comparable jurisdictions, notably the United Kingdom and Norway, have established similar review commissions. These examples provide a valuable experience for us to draw from. The equivalent review commission in the UK sends about one in 30 cases back to the appeal courts, and in New Zealand, information released by the Ministry of Justice showed that 11 people and eight cases had been compensated for wrongful conviction since 1998.

The New Zealand Bar Association has welcomed the development. They have been advocating for an independent review authority for many years, and other experts have said that such a development is long overdue. I commend the bill to the House.

It’s my pleasure to speak on the Criminal Cases Review Commission Bill. As has already been outlined by my colleagues last evening, we are opposing the bill, and there’s a very simple reason for that: we just don’t believe it is necessary.

This bill “establishes a Criminal Cases Review Commission”, and “The Commission’s purpose is to review convictions and sentences and decide whether to refer them to the appeal court.” As has previously been said, this will replace a power currently exercised by the Governor-General. The Criminal Cases Review Commission provides a mechanism for addressing miscarriages of justice. As an independent body, it can refer cases back to the appeal courts but it does not determine guilt or innocence. In our view on this side of the House, this will open the floodgates to a whole lot of people who believe they have a miscarriage of justice and will allow a lower threshold of entry into the appeal system than currently exists.

I’ll remind members on the other side of the House, who think this is such a wonderful idea, that two-thirds of the commissioners in this bill are not required to be legally qualified, making untrained and unaccountable commissioners extremely powerful, and the remaining one-third of the commissioners are not required to have criminal legal expertise or experience. This sets a very dangerous precedent. It should not be easy for somebody to actually bypass the court system if they want to appeal something, because at the moment they have to go to the Governor-General. It’s a high threshold for that to happen, and, as part of the Governor-General’s decision making, she or he at the time takes advice from the Minister in charge, with all the lawyers.

The status quo does mean that there is an appeal mechanism currently available. It’s not used that often but it is available. What we’ve got here is we’re setting up another commission. We’re advised that the set-up cost of this is $2.3 million to establish, and it will have an annual operating budget of $3.9 million per year. So it’s not an insignificant entity. The mere nature of that would indicate to me and members of this side of the House that we are expecting an influx of these types of appeal processes, and, as I said before, it will lead to the floodgates being opened.

The low threshold for people referring things back to the court will actually see more pressure placed on the courts, and we already know that the courts are overloaded. We already know that in many court jurisdictions, people are waiting for months—sometimes over a year—for a hearing. So we are now allowing somebody to go through this process and, I remind members on the other side, on any crime, not just a certain threshold of crime. On any crime, they can take it to this authority.

So, I remind members, the commission will receive applications from eligible persons or their authorised representatives, carry out activities it considers necessary to make the functions known to and understood by the public—in other words, to promote the body—have the ability to undertake initial inquiries into a conviction or sentence, undertake thematic reviews into a practice, policy, procedures, etc., and have reasonable powers to obtain information relevant to the investigation. There is a whole lot in these things that is unclear, and I remind members of this House that it should be by exception that this type of appeal to the Governor-General be used.

What we’re having here is normalising this, and there’s a whole lot of things that are equally not laid out in this bill. The bill is silent on the possibility that a decision by the commission could be subject to judicial review proceedings. In other words, at the moment this decision by the commission is not appealable on either side—even by the court or the people that represented the original prosecution. There is no limit on the types of matters that can be reviewed—as long as it’s a crime. This opens the floodgates. In our view, it should be strongly opposed, and we are opposing it.

Thank you, Mr Assistant Speaker. It’s with great pleasure that I rise to take a call on the Criminal Cases Review Commission Bill, and also to—I don’t know whether it’s really to challenge what the previous speaker, Lawrence Yule, who has just resumed his seat, said, because parts of it just weren’t that clear. It was “too much justice”—not sure if he stood against too much justice—“normalising justice”, the fact that it was too expensive to get justice. It was completely unclear. He seems to think that this is going to open some sort of a floodgate, so that we’re going to get too many people who want justice. I’m not sure what exactly his problem is, because what this bill does is establish an independent body to review criminal convictions and sentences, and decide whether to refer them to an appeal court.

It’s independent. If this bill passes and this commission is established, it will run entirely independently of the Ministry of Justice. Commissioners will be experts in criminal law, in other fields. The reason we need this is that there are concerns about the timeliness, the quality, the fairness, and the independence of the current system. That’s exactly what this bill is aiming to address. We know there have been high-profile cases, as members from this side of the House have spoken about previously, that attest to some of these concerns. This commission is a tool to identify and to correct miscarriages of justice when they occur. So I’m not too sure what exactly that member has an issue with.

There are tests for referrals as well. There’s a whole process that the bill lists, in terms of a test for referrals. It doesn’t completely replace the Governor-General’s powers, either; it replaces part of the royal prerogative of mercy. It just replaces the referral power that the Governor-General can currently exercise. That’s where the perception of political interference is addressed, in terms of this commission, as well. So the Governor-General still has the power to grant a full pardon, but of course the use of that is quite rare as well.

I just want to end actually by quoting the findings that the Minister quoted as well in his first reading speech, I think it was. It was the findings of the United Kingdom’s House of Commons Justice Committee in assessing the work of the Criminal Cases Review Commission there. It said, “If a bolder approach leads to 5 more failed appeals but one additional miscarriage being corrected, then that is of clear benefit.” I, too, agree with that sentiment and believe that this bill will enable us to achieve that. I commend this bill to the House.

Thank you very much, Mr Assistant Speaker. I know why this bill has come about, and no one denies that it is well-intentioned, because no one in the Parliament wants there to be miscarriages of justice. No one in the New Zealand Parliament wants people to be wrongly convicted—

💬 Kieran McAnulty: Lawrence Yule does.

—of crimes. No, Lawrence Yule does not want that. Don’t be silly. Don’t be silly, Mr McAnulty.

Where this bill came about was because of a spate of cases over the last 10 years—the Bain case, the Teina Pora case, the ongoing saga to do with Peter Ellis down in Christchurch. The Labour Party decided, for reasons best known to themselves, that one solution to the problem of alleged miscarriages of justice—and I’ll come back to that—was a criminal cases review commission.

Jacinda Ardern, the now Prime Minister—I was on the Justice and Electoral Committee with her, along with Jacqui Dean and others, in the last Parliament. She was very keen on this idea. A lot like when the Prime Minister makes policy—she sees something that sounds quite good and she doesn’t do the real homework on it and doesn’t do the reading on it. “Oh, we’ll have a review commission. Oh, that sounds great. The United Kingdom’s got one, so if it’s good enough for the United Kingdom, it’s good enough for New Zealand.” And now poor old Andrew Little, the Minister of Justice, has been handed the hospital pass of trying to make this into reality and trying to grapple with, actually, some pretty complex underlying criminal law issues to put this into place. I will come to some of the issues that are not dealt with in the bill so far. So I acknowledge completely the intention—it’s a sound one; it’s a good one.

But the first and most important point I want to make—and it deals with the member who is scarpering out, which is Priyanca—is they have not—

💬 Priyanca Radhakrishnan: Full name.

Priyanca Radhakrishnan. The Government has not made the case, in my view, for how the current system does not work.

Let’s look at the examples that Ms Radhakrishnan talked about. She said, “Oh, there are lots of notable examples in the recent past of miscarriages of justice.” OK—the David Bain case. David Bain was convicted in 1994 for the murder of his family. He went to prison. He eventually went through the legal process and went all the way up to the Judicial Committee of the Privy Council, which ordered a retrial which quashed his convictions in order to retry him in 2009, largely on the basis of the new evidence that Joe Karam was able to introduce around the luminol footprints. OK, fair enough. The new trial was held, I think, a couple of years or so later. David Bain was not convicted of those crimes; he is a free man. Well, why do we need a criminal cases review commission? What would a criminal cases review commission have done for David Bain? David Bain appealed with fresh evidence. He went up to the Judicial Committee, they quashed his conviction, he was retried, he was found not guilty and he’s a free man. Why do we need a criminal cases review commission?

What about the other example—Teina Pora. The same thing happened. Teina Pora’s convictions were quashed by the Judicial Committee of the Privy Council, largely on the basis of new scientific evidence around foetal alcohol syndrome disorder and whether or not he actually was guilty of the murder of Susan Burdett. Again, why do we need a criminal cases review commission? His conviction was quashed by the Judicial Committee of the Privy Council.

Mark Lundy—Mark Lundy went through the various processes. Mark Lundy appealed to the Judicial Committee of the Privy Council on the grounds that he couldn’t possibly have committed the murder of his wife and his daughter at that time. There was evidence around the McDonald’s that they’d consumed the night before, there was the question of was he able to get back to the Foreshore Motor Lodge in Pētone—which, incidentally, is about 45 metres from my house, as it happens—and whether or not he could go back there in enough time to make it back to Palmerston North. And, of course, there’s that evidence around the human tissue that was found on—I think it was a T-shirt found in his car. There was new evidence adduced by Mr Lundy and his lawyers at the Privy Council around the testing technique that the police used back in 2000 in Palmerston North, and his conviction was quashed. Then he was retried and, actually, he was found guilty. Actually, the police completely changed their theory of the case, or the Crown changed its theory of the case, and it turned out that they made a much more obviously convincing case for him being the guilty suspect. So, again, why do we need a criminal cases review commission?

A Labour member over there said before, “Well, it took a long time.” Well, look, actually, these things do take a long time, and I’m telling you now that once this Criminal Cases Review Commission is established, it will take a long time for people who think they can make use of its resources to go through the process, and that’s without even talking about all of the unknown elements of the system.

For example, will the system be amenable to judicial review? I’m telling you now, if there’s judicial review available for what should be a public body applying public law principles, then that is going to literally insert another whole massive layer of appeals inside an appeal system, as it is—OK? If you think the Kim Dotcom saga was bad, with multiple different chains of litigation and multiple chains of appeal around, essentially, what’s a pretty simple case of should he be extradited or not, and, what is it, seven or eight years later, we’re no closer to that decision actually going to the Minister for a decision—if you think that’s bad, because it’s largely judicial review and appeals that have caused that, then you have not seen anything yet when it comes to the proposed Criminal Cases Review Commission.

So I just simply ask the House and ask the Government—all of the cases they have made reference to and have averred to in their speeches have been dealt with through the traditional criminal process. The second point is, what is superior about the Criminal Cases Review Commission compared to the royal prerogative of mercy? It’s not clear to me how it will be superior, because Raymond Huo, who’s the chair of the Justice Committee, just spent quite a degree of time in his speech talking about how it largely replicates the elements of the royal prerogative of mercy and it seeks to, basically, enshrine that into a formal statutory process. So what is superior about this process?

The system we have now, I believe, works well. I believe it is effective, and I believe I’ve pointed to examples of the criminal justice system working effectively to remedy wrongs committed during the system. I’ve listened to all the Government speeches, and beyond pious words around “We’ve got to make justice work for everyone.” and stuff like that, which no one disagrees with—beyond kind of “motherhood and apple pie” sanctimony, which we’re used to from the Labour Party, they have not made a credible case for the Criminal Cases Review Commission.

I’ll repeat what I said at the start of my speech: it largely reflects the work that was not done by Jacinda Ardern, the Prime Minister, who was the then justice spokesperson in Opposition, when a spate of these cases were going through the courts. Very, very high-profile cases—Bain, Pora, the ongoing drama to do with Peter Ellis—and like a lot of Labour Party policy, it sounded like a good idea: “We’ll chuck it in the manifesto and see what happens. We’ll probably never have to implement it.” Well, now we do, and, I’m sorry, but the bill that has been presented to the House so far is a shocker.

Let’s talk about the actual issues to do with the bill which have been canvassed already. One-third of the people on the commission have to be lawyers—one-third? One-third? This is, essentially, an appellate body, right? This is a body that is going to weigh up evidence, and if it believes that it’s in the interests of justice—because that’s the test—it can then refer those cases back to the appeal court. One-third have to be lawyers? Seriously—one-third? I mean, seriously—only a third? We’re going to get people—I’m in no doubt that there will be smart people on it, but one-third? This is a body that is going to deal with the most fine-grained issues of criminal procedure. That’s the reason why there’s a Criminal Cases Review Commission in the first place. That’s the reason why the cases are going to end up there, because the admissibility of evidence is really complicated. That was true in Bain, it was true in Lundy, and it was true in Teina Pora as well. These are really tricky issues, and the Government wants to put on the Criminal Cases Review Commission two-thirds non-lawyers. It’s an absolute shocker.

What about the rules about how this is all going to operate? It’s not subject to the Official Information Act—that’s bizarre. What about the rules of contempt of court? Does that apply? We’ve got no idea. What about the rules about the privilege against self-incrimination? We have no idea. The rules of evidence—will they be applicable in the appellate body, and will they then be applicable again in the court that it gets referred to? We have no idea. The Government has not made the case. This is a shocker.

Order! The member’s time has expired.

Kia ora. Thank you, Mr Assistant Speaker. Well, I’m really disappointed that Mr Bishop didn’t read the bill before he started his speech, because there does seem to be a fundamental misconception on the other side of the House about what this is. It’s not an appellate body.

Look, as someone who has worked on innocence projects, I can tell you what this does and I can tell you what goes wrong. I can tell you, in respect of each of those cases, why we need a criminal cases review tribunal, because those people, whilst they were waiting for justice, were languishing incarcerated whilst people worked tirelessly for nothing because they thought something had gone wrong.

So Tim McKinnel, an investigator—not a police officer, not a lawyer, but an investigator—looked at Teina Pora’s interview tapes and thought, “Hang on. This isn’t right. The police didn’t behave properly here. This person wasn’t dealt with fairly.” So he worked tirelessly until he gathered enough evidence, talked to enough experts, and got lawyers on side who would help him progress that case until it crossed the threshold, so that the team could then go and persuade the Legal Services Agency that it was deserving of legal aid. Only then could the appeal case be put together. All of that was for years, and Teina Pora, whom I have met, was in no position to pursue his own case.

This is not a court. It doesn’t need fixed rigid rules. It is a threshold body, and its job is simply this: to take these instances and determine whether it is in the interests of justice for an appellate court to have another look at what has gone on. Once that threshold has been reached, it will be able to be funded through legal aid and the process will be able to move more swiftly.

It’s not the courts, necessarily, that are the problem; it’s all of the pre-court processes that are difficult. One of those is this: that an application for an appellate opinion on the prerogative of mercy goes through the Minister’s office, and lawyers in the Ministry of Justice who have full-time jobs doing something else have to look at these things. That’s entirely inappropriate. What we need is devoted people.

As for the suggestion that at least 33 percent, or one-third, of the members must be lawyers is a bad thing, what the cases have shown—whether it be Bain, whether it be Lundy, or whether it be Teina Pora—is that the breakthroughs in these cases are usually forensic. Bain was luminol on the bloodied footprints. That evidence wasn’t a question of law; that was a question of science, and we have to get over the fact that lawyers are some kind of priesthood who know all the answers.

💬 Hon Ruth Dyson: Who thinks that?

Ha, ha! I don’t know. What we need is people who listen to good advice from other professionals—investigators, forensic scientists, police officers—and others with real skills in this area.

So this is absolutely needed. It’s not a court. What it is is an independent body which will look into these serious breaches, and it’s entirely a misconception to think that it’s going to be overwhelmed. But what it will do is it will give justice much more quickly, much more robustly, and much more fairly than we have under the current system, and what it will also do is make sure that it doesn’t rely on the luck of some lawyer or investigator seeing a miscarriage of justice going by or someone looking for a bit of glory in their professional career. What it will do is even the playing field so that anyone who thinks there has been a miscarriage can approach this commission, whether they have a high-profile gory murder case which has had lots of media attention or whether it might be something a little less salubrious but still very serious, where it’s had serious criminal consequences.

So I applaud the Minister for following through on yet another promise that this Government has made and addressing the miscarriages of justice which have happened and moving on to this criminal cases review tribunal. I commend this bill to the House. Thank you, Mr Speaker.