NZ Miscarriages of Justice

NZ Parliament
May 15 2007

Questions and Answers
Press Release Office of the Clerk

Questions to Ministers

4. NANDOR TANCZOS (Green) to the Minister of Justice: Does he agree with Sir Thomas Thorp, who warns in his report into miscarriages of justice that up to 20 people could be wrongfully incarcerated in New Zealand's jails; if not, why not?

Hon MARK BURTON (Minister of Justice): Sir Thomas Thorp's report is a valuable study of the United Kingdom's experience of miscarriages of justice, but, as Sir Thomas himself acknowledges, there is no definitive New Zealand data on the potential number of miscarriages of justice.

Nandor Tanczos: Does the Minister agree that following the Privy Council decision in the Bain case there are a number of other cases, such as that of Scott Watson, Peter Ellis, John Barlow, and others, that cause considerable disquiet in the public's mind and among legal professionals, and that until this country has a process such as that outlined by Justice Thorp—that is, a criminal appeals review office of some kind—that disquiet will not be laid to rest?

Hon MARK BURTON: The option proposed by Justice Thorp is clearly a credible one for some jurisdictions, and the work we are doing right now is really examining that, alongside other options. But, without commenting on specific cases, I would point out that a number of the cases the member cited have resulted in referral back to the court by way of the current royal prerogative system. So clearly it is not the case that the process has failed many of those who have made use of it in New Zealand.

Lynne Pillay: What has the Government done in relation to the issues raised by the Thorp report?

Hon MARK BURTON: We have moved to adopt a simple three-stage case-management system for considering applications, to ensure there is a straightforward process, and have expanded the pool of legal advisers, and added additional support from external lawyers. Also, it is fair to say that at the front end the Evidence Act 2002 will have a significant and positive impact on how the courts operate, as it brings greater clarity to the way in which information is offered to courts as evidence.

Dr Pita Sharples: What explanation does he have for the finding, in the 2006 report of Sir Thomas Thorp, that Māori and Pasifika peoples use the existing processes for reporting miscarriages of justice much less than Pākehā?

Hon MARK BURTON: I cannot offer the member an off-the-cuff explanation, but certainly it sits inside the work being done now in terms of the overrepresentation of Māori in the criminal justice system. I think that question, and many others, must be addressed in terms of—

Gerry Brownlee: That's what you were saying 9 years ago. What have you been doing?

Hon MARK BURTON: With respect, the member's party was in Government 9 years ago. He really should focus on the facts.

Hon Peter Dunne: Does the Minister acknowledge that public concern about the way in which evidence was gathered and presented to the court in cases like the Bain case and the Watson case, raises strong doubts that the amendments to the Evidence Act, which he referred to, will overcome the suspicion that in such controversial cases the determination of the police to "get their man" often gets in the way of ensuring that all the relevant facts, regardless of their impact on the Crown case, are presented to the court, so that juries can reach a fair and balanced verdict; if so, what is he going to do about it?

Hon MARK BURTON: I think the member understands that it is absolutely improper for me to comment, at this time, on the case that is currently before the court.

Hon Peter Dunne: I raise a point of order, Madam Speaker. I do not normally raise points of order about Minister's answers, but my question was a general one using two specific examples. I think the Minister can be invited to comment on the general proposition I raised, if not referring to the specific cases.

Hon MARK BURTON: I am happy to expand. Frankly, it is too soon to reach the sort of conclusion that the member's question implies in relation to the changes to the Evidence Act. It was enacted in November last year, and I think it is simply too soon to reach that sort of conclusion.

Dr Pita Sharples: Does the Minister agree with the explanations of Sir Thomas Thorp that the reason Māori and Pasifika peoples do not report miscarriages of justice is that they feel they are not understood by the justice system; if so, what is he doing to particularly improve Māori and Pasifika confidence in the integrity of the justice system?

Hon MARK BURTON: I think Justice Thorp's comments have some merit. The work that is in progress now is specifically addressing that issue both through ongoing policy and specific programmes that are already working. In particular, the work is looking at proven programmes and how they can be better resourced, particularly programmes working with Māori and Pacific communities that have a proven track record. We are looking right now at how the better resourcing of those programmes might expand the effectiveness of their work.

Nandor Tanczos: In light of the Minister's previous answer, when he talked about the satisfactory nature of the way petitions to the Governor-General are dealt with, does he agree that justice should be transparent, accountable, and consistent in process; if so, what does he make of the opinion of senior Queen's Counsel Judith Ablett-Kerr, who describes the current way of handling petitions to the Governor-General as "terribly arbitrary, with no consistency of approach, no transparency, and little accountability", and does he not agree that an independent office, as outlined by Justice Thorp, would provide a transparent, consistent, and fair process?

Hon MARK BURTON: In answer to the first question, I disagree with the Queen's Counsel, who has a particular view on these matters as an active defence lawyer. I draw to the member's attention Sir Thomas' view, after examining the 53 files that he had asked for the opportunity to access, that he had few disagreements with the conclusions reached. That suggests that the current process is a robust one. That is not to say that the alternative model he has raised is not worthy of consideration; it is under current active consideration, along with other possibilities. As the member knows, I think, that policy work is due for report later this year.

Nandor Tanczos: How can the Minister be satisfied with the current process in light of the fact that it took Rex Haig taking a prison officer hostage before he got a fair hearing, and does it require taking someone captive to get a fair trial in the New Zealand system?

Hon MARK BURTON: I simply do not agree with the member's assertion.

Nandor Tanczos: I raise a point of order, Madam Speaker. I ask the Minister to clarify whether he is disputing that Rex Haig had to take someone hostage, or whether he is disputing that that is what it takes to get a fair deal.

Madam SPEAKER: Is the member asking another supplementary question—because the Minister did address the question? There are no more supplementary questions.