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New guidelines for compensation payments adopted


Hon Phil Goff
Minister of Justice
Media Statement

3 September 2000


New guidelines for compensation payments adopted

New criteria will be set governing the level of compensation payments for persons acquitted or pardoned after being wrongly convicted and imprisoned, says Justice Minister Phil Goff.

"The new criteria will supplement those set by the previous government in 1998, and will come into effect after the two cases currently in the system have been resolved.

"The reasons for the change in criteria are twofold. First, there is a lack of clarity in current criteria which risks inconsistency and unfairness in compensation payments to different applicants.

"Secondly, compensation levels should be in line with judgements in New Zealand Courts in false imprisonment cases. While compensation needs to fairly reflect the losses and trauma of being wrongly imprisoned, it must also reflect the fact that many people receive no compensation for losses which are through no fault of their own. The new criteria if applied in the current case would have lowered the compensation payment by around $200,000.

"Victims and people wrongly charged and then acquitted, for example, often have no redress for their losses. An award of compensation is an extraordinary remedy and is not available in all cases.

"While the assessment of pecuniary losses (quantifiable expenses incurred such as legal expenses and loss of income) is quite straight forward, quantifying non-pecuniary losses (such as pain and suffering) is more difficult in the absence of clear guidance as to an appropriate figure from which the calculation should commence.

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"Uncertainty in the calculation of non-pecuniary losses risks inconsistent results.

"Cabinet has therefore put in place clearer guidelines on the assessment of the amount of future compensation. This will provide greater certainty as to the appropriate size of compensation payments.

The 1998 Cabinet criteria specify a number of factors that are to be taken into account when considering the appropriate amount of compensation. Those factors include the conduct of the accused leading to prosecution and conviction; whether the prosecution acted in good faith in bringing and continuing the case; whether the investigation was conducted in a reasonable and proper manner; and the seriousness of the offence alleged.

"The calculation of compensation under the new guidelines involves three stages. The first stage deals with the calculation of an appropriate amount for loss of liberty. Under the additional guidelines, the starting figure for loss of liberty is set at $100,000. This base figure is then multiplied on a pro rata basis by the number of years spent in custody so that an amount for loss of liberty is arrived at that is proportional to the period of detention.

"The second stage is to weigh up the factors set out in the 1998 Cabinet criteria to determine an appropriate amount for the non-pecuniary losses incurred by the claimant. There is a limited degree of discretion in this stage but Cabinet has agreed that only those cases with truly exceptional circumstances would attract an award under this stage that is greater than $100,000. On average the relevant figure under this stage should even out at around $100,000.

"Where there are aggravating features present such as the fabrication of evidence by the prosecution, the case would fall at the higher end of the range. Quantum for non-pecuniary losses should be adjusted upwards from $100,000.

"Alternatively, where there are mitigating factors such as the conduct of the accused that may have contributed to the wrongful conviction, the quantum for non-pecuniary loss should be adjusted downwards from $100,000.

"The last stage is to calculate the claimant's pecuniary losses separately.

"The sum of the figures from all three stages represents the total amount of compensation payable to a claimant," Mr Goff concluded.

ENDS


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