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