Criminal case reviews may involve members
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The CCRC, which has taken over the Royal Prerogative of Mercy (RPM) referral process under the Criminal Cases Review Act 2019, opened its “doors” for business in July 2020. It was expecting a run of applications, possibly up to 125 in the first year.
What it got was a deluge of 200 in the first 10 months. By comparison, fewer than 170 applications were made for an RPM over 23 years.
The sheer volume of applications has been challenging for the independent Crown entity, which has a relatively small investigation team, plus a panel of six commissioners headed by Colin Carruthers, QC.
It seems that word has spread fast about the commission, which is intended to act as a safety valve for claimed miscarriages of justice, such as the case of Teina Pora, who spent 22 years in prison after his wrongful conviction for murder.
There are a broad range of applications being made to the CCRC, involving homicides, sexual offences, serious and complex fraud and less serious offences.
The law prevents the CCRC from disclosing what specific applications it has before it, but it says there is little doubt that among them will be applications from people whose last-ditch effort will show there has been a miscarriage of justice.
The CCRC’s work requires it to access significant legal and policing expertise. The deputy chief commissioner is Paula Rose, a former Police national manager of road policing, and the establishment advisory group included former police officer Tim McKinnell, a senior member of the team that helped free Teina Pora. Tim is now the CCRC’s investigation and review manager.
He says the advent of DNA evidence over the past 30 years has allowed societies to begin to understand how common miscarriages of justice are and, to some extent, what causes them.
Early data indicates that about 30 per cent of applications the CCRC are from Māori and 7 per cent from people who identify as Pasifika. Ninety-four per cent of applications are from males. Some of the 200 applications relate to cases that are decades old.
The CCRC is keen to ensure that other government departments, such as Police, the Serious Fraud Office and other prosecuting agencies, are aware of the CCRC’s role in reviewing convictions and sentences, and what that might mean in terms of accessing information and interviewing staff involved in historical cases.
The CCRC stresses that it takes an inquisitorial approach, rather than an adversarial one. Its role is to determine if it is in the interests of justice to refer a conviction or sentence back to the relevant appeal court, not to decide guilt or innocence.
As of mid-May, the CCRC had progressed several cases to the investigation stage – the step where it may use its powers to obtain information. Several applications have also either not been accepted or a decision has been made not to proceed to an investigation.
Most of those seeking to have their cases reviewed will have exhausted all other avenues of appeal. The CCRC is the last resort with a statutory power to refer cases to the Court of Appeal.
It operates in a similar way to the Scottish Criminal Cases Review Commission, set up in 1995, but with some elements changed to “suit the New Zealand landscape”, such as “mana-enhancing practices” and working not just with individuals, but with collectives and families.
The CCRC is all about accessibility, but it seems to have been a victim of its own success. The hope was that after an initial rush of applications, demand would ease off, but that hasn’t happened. Given the volume of applications, another challenge will be identifying applications that have merit and filtering out those that do not.
Police senior prosecutor Sergeant Grant Gerken, who is the Police Association’s Region 7 director, has welcomed the CCRC as an additional safeguard in the justice system.
Most prosecutors and OCs considered that once a matter had made it through the gateway of evidential sufficiency and then a full trial, any finding of guilt (on a beyond reasonable doubt basis) would be “robust and merited”, he said.
However, no system was infallible, and he was confident that no police officer would want anyone wrongly convicted of an offence for which they were innocent. “So, while there are several layers of appeal available, an additional safeguard is hard to argue against, particularly if a miscarriage of justice is revealed.”