From Pora to Watson

The lawyer and the investigator who were instrumental on getting Teina Pora freed and compensated are now working on the Scott Watson case.

Newshub: Team that freed Teina Pora now working on Scott Watson’s case

The team that helped free Teina Pora has now turned its attention to the case of convicted double-murderer Scott Watson.

Lawyer Jonathan Krebs helped quash Pora’s conviction for the 1992 murder of Susan Burdett. He is now working on Watson’s application for a Royal Prerogative of Mercy, which, if successful, could re-open the case of the Sounds murders.

Private investigator Tim McKinnel, who also helped to clear Pora’s name, will be involved in Watson’s application.

I don’t know enough to be able to conclude whether Watson is guilty or innocent, but there do seem to be some real issues of concern regarding his conviction.

By world standards we have a relatively robust legal system but it is not without it’s weaknesses.

One of those seems to be a strong reluctance to revisit cases where there are obvious problems with the case and the verdict.

Compensation increase for Teina Pora confirmed

The previous government kept resisting approving full compensation for Teina Pora after he was wrongly jailed for 17 years.

One thing the new Government is putting right is approving appropriate compensation.

Newshub: Andrew Little confirms Teina Pora will get extra compensation

“Teina Pora will receive an extra $988,099 as an inflation adjustment, bringing the total compensation package to $3,509,048.42. Additionally, Mr Pora will receive $45,000 in costs from his successful judicial review of the last National Government’s refusal to inflation adjust”.

“Teina Pora was the victim of one of New Zealand’s worst miscarriages of justice. He was robbed of more than two decades of his life, languishing in prison for crimes he did not commit. These were years when Mr Pora could have been working to build his future and his family.”

A fair outcome, after a long period of injustice.

Can wrongful convictions be avoided?

Wrongful convictions are a blight on any judicial system. Obviously they should be avoided as much as possible.

An often cited expression from English jurist Thomas Blackstone in Commentaries on the Laws of England (published in the 1760s) :

It is better that ten guilty persons escape than that one innocent suffer

The reality is that many innocent people suffer by being prosecuted for crimes they didn’t commit, even if they are eventually found not guilty.

And some suffer substantially more when wrongfully convicted. Two prominent cases in New Zealand that were eventually put as right as is possible were Arthur Allan Thomas and Teina Pora. Other people convicted controversially remain in prison.

One uncorrected apparent travesty of justice is the Peter Ellis case. This looks like a very unsafe verdict, but our judicial system and our politicians have been unwilling to address it adequately.

Once a person is convicted is our judicial system stacked too much against those who are innocent? The eventual clearing of Thomas and Pora were very difficult, lengthy and costly processes.

The Nation looked into all of this in Calls for new body to end wrongful convictions

It’s unrealistic to think that wrongful convictions can be avoided altogether but there must a better way to determine when mistakes have been made.

Ministry of Justice comments on royal of prerogative mercy process (RPM) 

The New Zealand RPM process operates within, and needs to be evaluated within, the context of our own particular legal system. What may work in another jurisdiction is not necessarily required or appropriate in New Zealand’s system.

The New Zealand RPM process provides a constitutional safeguard against miscarriages of justice. The process is effective – in cases such as David Dougherty and David Bain convictions have been referred back to the Courts and ultimately quashed. In fact, the referral rate in New Zealand is approximately 9.25 percent, which is higher than the Scottish CCRC (at 5.95 percent). 

The particular form of the RPM in New Zealand (exercised by the Governor-General on the advice of the Minister of Justice) reflects our constitutional arrangements. It respects the constitutional separation of powers in two important ways:

  • If a matter has been fully determined by the court system (including the exercise of appeal rights) the executive branch of Government will be reluctant to interfere as this would tend to compromise the finality of jury and judicial decisions and undermine the credibility of the criminal justice system.
  • However, if a new matter arises that was not able to be considered by the court process and it appears that a miscarriage of justice may have occurred, the Minister of Justice will normally recommends that the Governor-General refer the case back to the appeal courts. This is because the courts (not the Government) are responsible for deciding questions of criminal responsibility.

The ministry’s role is to assess applications and provide independent advice to the Minister of Justice. Accordingly the ministry cannot gather evidence or make an applicant’s case for them.

While it is true that the ministry does not have statutory powers to compel people to provide information, this has not inhibited our ability to gather information and the overall consideration of RPM applications. Police and other Government agencies routinely co-operate with requests for information and assistance, as do counsel for the applicant and the Crown, and the applicant’s previous lawyers. Applicants are able to apply for relevant information under criminal disclosure rules, the OIA or Privacy Act, and can ultimately have recourse to the courts.

Where necessary a senior lawyer may be engaged to interview witnesses, and expert commentary and analysis will also be sought if necessary.

We are not aware of any examples where a deserving applicant has been unable to challenge their conviction (as opposed to disagreeing with the outcome). Many of the problems that commentators allege appear to be theoretical.

Governor General: The Royal Prerogative of Mercy

For and against a criminal case review commission

In their weekly joint column Jacinda Ardern and David Seymour discuss the Teina Pora case andoffer different views on whether New Zealand should have a criminal case review commission.

Ardern in Jacinda v David: ‘Teina Pora case has much to teach us’:

We have long advocated for the introduction of an independent criminal case review commission – a place where cases like this can be reviewed independently and sent back to the Appeal Court. A similar commission operates in England and Wales and, in the last 15 years, 320 of the 480 convictions they referred to the Appeal Court were overturned. We need the same here.

And she says we need more before we get to the stage of needing a review of cases that have gone wrong.

But all of that still means picking up the pieces once we get things wrong. If we want true preventative change, we have to ask how a young man was able to be questioned, charged, and convicted of a murder he did not commit. There are many factors, but one is FASD.

I am not arguing that everyone with a neurodisability in our justice system is innocent. I am arguing that we should give them a fair go. We need to get a handle on the prevalence of these cases before our courts, we need to properly train our police force on how to manage them, and we need a court that – if found guilty, focuses on interventions that are going to work.

Seymour:

Fortunately, police have come a long way in the 20 years since Mr Pora was charged, especially with regards to understanding of and processes around disabilities.

Ensuring we have a strong criminal justice system won’t be achieved by establishing yet another government commission. Ultimately, that replicates the royal prerogative of mercy (appeals considered by the Governor General) and undermines the role of the appeal courts.

The Police will always make mistakes – they often investigate crimes in very difficult circumstances – and sometimes they will make bad mistakes.

Our criminal justice system has changed since the Pora case which was able to appeal to the Privy Council in England.

I hope it is robust enough now to deal with justice gone wrong. In the past our justice system seems to have at times at least protected poor cases from sufficient scrutiny. They are also limited by only looking at specific points of law rather than wider issues.

And I hope the police have learnt a lot from their mistakes in the Pora case.

Debate over Pora compensation

The Government has offered Teina Pora $2.5 million compensation for wrongful arrest, conviction and more than twenty years in prison.

Compensation is clearly justified and I certainly don’t think the amount offered is too much. How Pora might use compensation is irrelevant.

Most argument is that it is manifestly inadequate, especially taking inflation into account, while the Government is defending the offer.

Stuff: Teina Pora may challenge $2.5 million compensation offer from Government

Speaking to media in Auckland, Key said it was likely the guidelines would be reviewed in future, but the Government wanted to be “both consistent and fair” to people who had received non-adjusted compensation in the past.

“Lots of things in Parliament aren’t inflation adjusted so if we’re going to make a policy change around inflation adjustment…we may well do that, but if we do we’ll want to do a proper review of the guidelines.”

Key believed Pora’s lawyers could seek a judicial review of the decision, and said Pora “absolutely deserves compensation”.

“I think the whole thing has been a very tragic set of circumstances and no amount of money can compensate Teina Pora for spending the better part of 20 years in prison.”

But…

Teina Pora’s legal team may challenge a $2.5 million compensation offer from the Government after he spent 21 years in prison for a crime he did not commit.

A statement from Pora’s team said their client had been asked to accept or decline the Government’s offer in full.

“We think that is unfair…Mr Pora is under immense pressure of finances and emotion…the decision whether to challenge this aspect is complex and will take time to reach.”

The statement said the team had written to Justice Minister Amy Adams asking her to change the terms of the compensation offer, so Pora could accept it while still challenging the inflation decision.

The Government may consider this.

In a statement, Adams said she was “more than happy” to consider the request, and had asked for advice on the issue.

“It is important to note that the compensation offer is not in any way time bound,” she said.

One obvious problem with all this is that the already extensive time and money spent on securing Pora’s release and proving his innocence beyond reasonable doubt and getting a compensation offer will continue at a much higher rate of inflation than will be applied to the compensation offer.

Teina Pora payout

It is being widely reported that an announcement is due today of a $2 million payout to Teina Pora after he spent 21 years in prison after being wrongly convicted of rape and murder..

Stuff: Teina Pora to receive $2 million compensation payout

Teina Pora will receive a record $2 million compensation payout, which was approved by Cabinet this week.

Pora was convicted in 1994 of the 1992 rape and murder of Susan Burdett.

New evidence presented to the Privy Council showed Pora suffered from foetal alcohol syndrome that made his confession, which was key to his original conviction, unsafe. No retrial was ordered.

A spokesman for Justice Minister Amy Adams said an announcement regarding Pora’s compensation was due tomorrow.

Adams announced in June last year that Pora’s compensation claim would be reviewed by retired High Court judge Rodney Hansen.

Cabinet guidelines set a base figure of about $100,000 compensation per year of wrongful incarceration.

Two million dollars sounds a lot but 21 years is also a lot.

It’s understood the mood in Cabinet was that the compensation was well deserved.

Pora was in prison from when he was 17 to when he was 38. That’s a major chunk of his life behind bars.

I wouldn’t call it ‘deserved’, it wasn’t something Pora earned, he will get it as compensation for wrong done to him.

3D on Malcolm Rewa

3 News is promising revealtions on Malcolm Rewa tonight on 3D (6.30pm). They are promoting the news in advance:

Malcolm Rewa family member: ‘We know what went down

A member of Malcolm Rewa’s family has come forward with new evidence against him in the unsolved Susan Burdett murder case.

He has told 3D Investigates he is prepared to testify against Rewa in any fresh prosecution.

“I would give evidence,” the man told the programme. “We know what went down and how it happened.”

3D Investigates will tonight reveal fresh information about Rewa’s involvement in the 1992 rape and murder of Burdett in her Papatoetoe home.

The family member, one of two witnesses with new details, says he wants to apologise to the Burdett family.

“I apologise for what has happened. They lost a loved one and I wouldn’t like it to happen to my family. And I don’t mind helping the family.

“I should’ve been a man enough way back and come forward.”

Yes, he should have been man enough way back. But better very late than never.

Rewa, jailed in 1998 for attacks against 25 women, faced two trials for murdering Burdett. He was convicted of raping her, but neither jury could agree on whether he was guilty of murder.
The complicating factor in the Rewa case was that another man, Teina Pora, had previously been found guilty of killing her.

Pora spent twenty years in Paremoremo prison. Possibly because one or more people remained silent. Until now perhaps.

UPDATE after 3D screened – two pieces of information.

Susan Burdett murder: Witness saw Malcolm Rewa on the night

A witness who lived in a house just down the road from Ms Burdett at the time of the murder saw Rewa parked in his truck in her driveway on his own on that night, and that evidence has never been heard.

She says she opened the curtain on the night of the murder and saw Rewa parked in his truck in her driveway, on his own, with nobody else around.

Up till now, there has only been physical evidence – DNA of semen – connecting Rewa with Ms Burdett. There were no fingerprints, no eyewitnesses, and Rewa claimed in his defence that he was at home on the night.

So to now have an eyewitness who saw him in Ms Burdett’s street, on his own, without Mr Pora, is a breakthrough.

And:

In video the police took in 1992 at the scene of the crime, a bat can be seen on Ms Burdett’s bed. The prosecution has previously said the bat belonged to her.

“Yeah the old baseball bat,” says Mr Manapiri, “I first saw that when I come back from Australia.”

“[Rewa] had a Holden, and he took me up to Ruakaka on it – him and his daughter – and I seen that baseball bat quite often … it’s the old colour of the old baseball bat what he used to carry.

“That’s the one. And I seen it quite often. He used to carry it in his van and stuff like that too.

“He used to beat his dogs and he was in the gang, and I suppose that was his weapon.

“I’m telling you that’s his bat left at the scene and, you know, that shows that he did it.”

Mr Manapiri says he told the police at the time. He can even describe the policeman he spoke to, but it never appears in any of the police records

This looks like significant new evidence that may justify re-opening the case.

It also raises concernes that the Police may not have recorded important information given to them during the investigation.

Recommendation of no retrial for Teina Pora

The Privy Council has recommended that there be no retrial of Teina Pora.

Good.

Justice sometimes takes a long time, at great cost to the innocent.

Teina Pora convictions quashed

The privy council has quashed the Tenia Pora convictions. This isn’t a surprise, the more that came out the more of a travesty of justice it looked.

Teina Pora’s convictions quashed but no decision on a third trial

Teina Pora’s convictions for the rape and murder of Aucklander Susan Burdett 23 years ago have been quashed by the Privy Council in London.

In delivering the judgement tonight, Lord Kerr said the Judicial Committee of the Privy Council has concluded “there was a risk of a miscarriage of justice if Mr Pora’s convictions were allowed to stand”.

The Privy Council noted in its formal decision the now famous confessions Pora made to police.

It found: “The combination of Pora’s frequently contradictory and often implausible confessions and the recent diagnosis of his FASD [fetal alcohol spectrum disorder] leads to only one possible conclusion and that is that reliance on his confessions gives rise to a risk of a miscarriage of justice. On that account, his convictions must be quashed.”

The board is seeking submissions within four weeks on the issue of whether there ought to be a third trial for the 39-year-old.

Will the Crown ever admit the stuffed this case up? Now would be a good time.

Teina Pora’s lawyer: He’s probably the happiest man in the country tonight

Teina Pora’s lawyer says he is “absolutely delighted, as is Teina and as are his supporters” following the Privy Council’s decision.

The Privy Council in London tonight quashed Pora’s convictions for the murder and rape of Susan Burdett in south Auckland in 1992.

Pora’s lawyer Jonathan Krebs says his client was “initially speechless” when he learned he was now a free man and would no longer be subjected to “very strict parole conditions”.

“But as it sank in he’s probably the happiest man in the country tonight.

It’s good to see he’s finally got something to be happy about. And his lawyer…

He said the Privy Council had not automatically ordered a retrial, which he says usually happens in cases where a conviction is quashed on appeal.

“What they have done instead is called for submissions from the lawyers as to whether there should be a retrial and over the next four weeks we as a team will be working on those submissions and naturally our argument will be that there should be no retrial.”

It’s not over yet and it’s hard to see how Pora can have a normalish life of freedom, but I hope compensation from the Crown is sought.