Gordon Campbell on the Teina Pora payout

Oops, sorry and $2.5 million in cash as a settlement for wrongful conviction. Obviously, Teina Pora hasn’t received a generous settlement. Back in the late 1990s, the Cabinet guidelines set $100,000 a year as the appropriate level of compensation when the state jails an innocent person. In the Pora payout, this amount has not been inflation adjusted (as retired judge Rodney Hansen, who conducted the review strongly advocated) to reflect what $100,000 back then would be worth today.

As each year goes by, this lack of inflation adjustment erodes the fairness of the compensation mechanism. Justice Minister Amy Adams could have chosen to step in and halt this additional and petty element of injustice. She chose not to. Otherwise… you can measure the inadequacy of this payout in several ways. Lets assume that he’s been compensated for a combination of (a) lost earnings (b) lost life experiences and (c) for 21 years of brutalisation amidst the slow torture that is prison life.

For starters, let's assume Pora might have earned say, $40,000 a year on average over his period of imprisonment. Over 21 years, there goes $840,000 of his compensation. As an interesting aside, this also means that a penitent state has been willing to pay Pora for his 21 years of lost earnings almost exactly what NZ Super Fund CEO Adrian Orr gets paid (he’s in the salary band $830,000 to $839,000) for just one year of his working life.

Moving right along to the other elements of the compensation package…. if you subtract that reasonable estimate of Pora’s lost earnings from the $2.5 million total, that leaves him with only $1.65 million as compensation for the lost experiences and the prison brutalisation, at roughly $825,000 apiece. Divvy that up over the 21 year period and it comes out at $39,285 a year for losing those positive experiences of love, life and sharing the experiences of children – and ditto another $39,285 a year for being treated like shit; day in, year out for 21 long years, when you're entirely innocent. With respect to the positive experiences he lost and the brutality he endured, Pora has been compensated at a rate that’s been set far, far below the average wage of $63,000 a year that Finance Minister Bill English was bragging about in this year’s Budget.

Surely, you'd think…any reasonable person would do everything they could to ensure this kind of human tragedy didn’t happen again, to anyone else. Because it does happen, with monotonous regularity… Arthur Allen Thomas, David Bain, Rex Haig, David Dougherty and now, Teina Pora. Regardless, the government continues to reject calls by all and sundry for the creation of an independent body empowered to investigate contentious convictions.

As I’ve banged on over the course of several previous columns there is a clear and present need for such an office. Over recent decades, a stream of major criminal convictions in New Zealand have been overturned, and these have left large numbers of people feeling that our justice system can’t be relied on to (a) convict the right person or (b) ensure that the ‘beyond reasonable doubt’ standard has been met.

Unlike New Zealand, Britain has been willing to do something about it. True, it did take several instance where a notorious miscarriage of justice – or, as some dubbed it, ‘a carriage of misjustice’ – occurred, before it finally chose to act. These were the Birmingham Six and Guildford Four cases. Finally, in the mid 1990s, an independent body called the Criminal Cases Review Committee (CCRC) was set up by the British government to investigate applications from the public for the review of possibly wrongful convictions, after the entire appeal process has been exhausted.

Scotland has a similar system, with slightly different rules and powers. In 2010, Werewolf did a long interview with Professor Graham Zellick, who headed the CCRC between 2003 and 2008. On Zellick’s watch, the CCRC was called on to grapple with some thorny issues – such as, what happens when expert witnesses are in conflict, and when juries have to guess which expert is the more reliable? The dodgy reliability of expert witnesses (and the reliance juries place on them) is a global concern. Unfortunately though, the investigation of wrongful convictions is never likely to become a popular process. Politicians prefer to be seen to be supporting the victims of crime, rather than the victims of the justice system.

Judges are also of little help. While they will privately concede they’re fallible and would welcome any competent body that fostered confidence in the justice system, they’re also likely to have misgivings about a process that some judges would regard as second-guessing their work. The mere existence of a permanent body like the CCRC suggests that the Police and the courts routinely get the process of justice badly wrong. Therefore, some people – and unfortunately, they include Justice Minister Amy Adams - prefer to perpetuate the fiction that wrongful convictions happen so rarely that we can safely muddle along with the status quo.

On the contrary, near enough isn’t good enough in this situation. Oops, sorry and here’s some cash really doesn’t cut it. Do we really think it is OK that the innocent don’t walk free, because otherwise the public might think that our justice system is flawed and fallible? Newsflash : the public already know it is fallible, and so do some of our judges. An independent review body would go some way towards ensuring that these recurring mistakes can be nipped in the bud, well before the innocent have languished in prison for 21 years. A few years ago, retired judge Sir Thomas Thorp issued a self-funded report that found our provisions for dealings with miscarriage of justice are inadequate.

Thorp called for New Zealand to create and maintain an independent body dedicated to investigating and helping to correct wrongful convictions. There is of course, a related problem: the inadequate funding of legal aid. We operate an adversarial system of justice in New Zealand. When the state (with all of its resources) mounts a prosecution, the accused deserve proper representation – and given the government’s attacks on the legal aid system, they are increasingly unlikely to get it. If Justice Minister Amy Adams really wants to avert further miscarriages of justice of the kind that convicted Teina Pora, she should be averting them from happening in the first place - by boosting the funding and improving the accessibility to legal aid.

A Deteriorating Situation.

After the Teina Pora case, the chances of wrongful conviction will – if anything - increase. We have now lost the right of appeal to the Privy Council, which has functioned in recent years as New Zealand’s de facto independent review body. So the situation is set to get worse, not better. Instead of belated release and compensation, the innocent will be more likely to rot in jail in future, unheeded.

Footnote : At the risk of constant repetition… from my 2010 interview with Professor Zellick of the CCRC, here’s an excerpt about why New Zealand needs an independent review body to review contentious convictions :

Campbell: Our current position is that we do have a royal prerogative of mercy, and we do have the executive in the shape of the Minister of Justice occasionally exercising their discretion to launch an investigation and recommend that matters be sent back to the courts for consideration. What’s wrong with that model?

Zellick: Everything. New Zealand is not unusual. That is the common Anglo-law Commonwealth situation, where the prerogative rests with the Crown and that translates into whatever the local arrangements are in Canada, Australia, or New Zealand. It was the situation in Britain until the mid 1990s. What’s wrong with it is two fold: first of all, if you analyse it, it does not accord with the proper sphere of executive action. Interference in individual cases within the justice system is no longer, in principle, regarded as being within the proper sphere of executive action. I think that is now generally recognized as a constitutional principle. We’ve sharpened up our ideas on the separation of powers in recent years.

So the risk is that the situation may become politicized and the discretion exercised for political favour or gain?

Zellick : Or even less sharply, that Ministers have more pressing matters on their agenda, they don’t want to be distracted, they don’t have the time to give it their attention, their officials may realize from time to time that the Minister isn’t very interested – or that he is very interested. It works in very subtle ways, It may not be as crude as to say that there may be direct political manipulation of the process. The political arena is a very sensitive and curious and turbulent one.

And the issue of public confidence in the process then arises. You made the point that there must be no point of finality in the criminal justice system, in that the door must always be left open to correct an injustice – but what comfort can that offer to the victims of crime?

Zellick : You have to have other mechanisms for dealing with the victims of crime. In some respects of course with terribly serious crimes, you can’t make adequate recompense. It so happens that Britain happens to have the most generous system of compensating the victims of crimes of violence of any country in the world.

What I’m getting at is that finality is important for the victims of crime too, to enable the feeling that justice has been done –

Zellick : And that their misery is at an end?

Yes. Because only then, in the cliché term, is ‘closure’ possible.

Zellick : That’s absolutely right. I have to tell you that any review commission has to tread warily, and has to be very sensitive. We certainly don’t go troubling families and victims unless you have to. And if possible – and in most cases this is what we manage to do – we can begin and complete a case without them ever knowing that it been the subject of an application. When we do have to open it up and possibly speak to them or – if we don’t, and make a referral – of course we understand this is not going to be easy for them. And we have in place elaborate protocols to ensure they are the first to know the outcome, that they are advised, and that there are authorities there to support them. The only thing I can say is that this cannot be, and could not be allowed to be, a reason for not reviewing a miscarriage of justice.

If only because closure also depends on the right person being convicted?

Zellick : It does.

Logically, wouldn’t cutting back on legal aid be likely to generate more miscarriages of justice?

Zellick : Yes. It is worrying. As chairman, I never got drawn into the fairly fierce debate about the adequacy of criminal legal aid. I didn’t think it was right to do so. There is no doubt that the adversarial system is critical to the effectiveness of a criminal trial in the common law system. That pre-supposes competent lawyers. If there are serious cutbacks, all sorts of things can happen. Any diminution in the quality of the criminal bar for example, and any curtailment of adequate preparation time and so on, can impact very heavily. Even at the moment, a very significant proportion of applications to the Commission are based on inadequate legal representation.

In New Zealand, we’ve had legal aid brought back under the control of the same Justice Minister and Executive that also holds the discretion to re-open unsafe convictions. In Britain, is legal aid administered by a truly independent body?

Zellick : There is some kind of agency or body – called the Legal Services Commission – that is responsible for it. Ultimately of course, it is the Ministry of Justice and the Treasury that determine the overall budget, and the Legal Services Commission that figures out how it will work in practice. It is under tremendous strain at the moment. There is, I know, much concern in the legal profession about its future.

…Well, let’s look at those numbers. You get about 1,000 applications for review a year. You send back 40 or 50 a year for the original appellate court, and have about a 70% success rate of convictions quashed. Are those numbers relatively constant, year by year?

Zellick : They are, curiously enough. They’re very constant. I’m no mathematician, and I don’t understand why it is – yet mathematicians apparently do – but these numbers hardly fluctuate.

That’s interesting. Because it indicates that there is a chronic, fairly predictable level of error in the British justice system. Certainly one high enough to justify the CCRC’s ongoing existence.

ZelIick : I have absolutely no doubt that if there were a similar Commission here, you would find the appropriate level would be very similar to the British experience, and the Scottish experience, in proportion. And for the same peculiar reason, it would remain fairly constant…

…Just to be clear: a CCRC recommendation doesn’t establish innocence, but it assesses whether fresh evidence or a re-evaluation puts the ‘beyond reasonable doubt’ test’ in jeopardy, correct?

Zellick: Yes. We don’t make any recommendation at all. We simply have to decide whether there is a real possibility the appeal court might quash the conviction – and that is on the basis of whether that conviction is safe.

…Finally, to summarise – why should [an independent review body] be allowed to second guess the joint work of the judge and the jury in the original trial, given that those parties heard all the evidence in context, and were able to judge in person, the relative reliability of witnesses?

Zellick : And the answer is: we don’t. And it wouldn’t be right to do so, you’re absolutely correct. That’s why the jurisdiction only comes into play when there is something new, and which by definition, wasn’t before the trial judge and trial jury or indeed, the Court of Appeal. So, it is premised on the notion that something – whether it is legal, or factual – something new has emerged which justifies further consideration. And that further consideration is by the court, and by the appropriate and relevant appeal court. The CCRC system we have fully respects the role of the justice system, and of the judiciary. We don’t in any way replace or oust them. We simply provide a mechanism for laying before them something new that suggests the conviction isn’t safe…”

Well put. And after Pora and the line of similar precedents – not to mention the abolition of Privy Council review - why are our politicians so stubbornly resisting the installation of this essential safety rail, within our justice system?

Werewolf + Scoop : Still An Item.

Not sure who may have read this, but just for the record….no ship jumping has occurred. Werewolf has exactly the same independent status under the Scoop umbrella as it has since its inception, seven years ago. My blog – whose IP I’ve also always owned – has been consolidated on Werewolf in a move that will improve its accessibility on mobile phones. And duh, I’ve recently become editor of Scoop, as well as Werewolf. No divorce. Man, it's a drag when people on the same side of the political fence waste their time sniping at each other.

Calculations and sentiments

When we’re discussing the Pora payout, the title track from Margaret Glaspy’s debut album Emotions and Math seems appropriate. Like Joanna Newsom – whose voice she sometimes evokes – Glaspy comes from northern California, but now lives in Brooklyn, New York. A former violinist, she can take sudden melodic swerves that underline the emotional ambivalence of her lyrics :

Oh whenI got you by my side, everything’s alright
Its just when you’re gone, I start to snooze the alarm
And I stay up until 4 in the morning
Counting all the days till you’re back
Shiverin’ in an ice cold bath of emotions and math

This live cut – its just her acoustic guitar and voice - also cuts through the emotional fog:

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