Man sent to jail when he was 15 wins appeal in landmark case

Friday, 16 February 2024

The High court has set aside the convictions of a man who was wrongly jailed when he was 15.

A refugee sent to prison when he was 15 years old has won his appeal to have his convictions set aside, in a landmark case.

The man, who has name suppression and is known as Mr G, said mistakes and confusion over his birth date meant he was sentenced to an adult prison for 11 months in 2001, for offences including assault and drink driving.

Anyone under 16 should have been dealt with in the Youth Court, and not sent to jail, apart from very serious offences.

Mr G had only been in New Zealand for eight years, left school at 13, and had limited ability to read or comprehend English.

His appeals were rejected, and he was declined home detention.

In 2020, Mr G applied to Criminal Cases Review Commission (CCRC), a body established to investigate possible wrongful convictions and sentences, asking them to reinvestigate his case.

Colin Carruthers KC, chief commissioner of the Criminal Cases Review Commission.

Two years later, his case became the first that the CCRC sent back to the courts for reconsideration, on the basis errors had been made about his age, with CCRC chief commissioner Colin Carruthers, KC, describing it as “disquieting”.

However, Police and the Crown pushed back, arguing in the High Court in November that Mr G was likely born in 1984, and didn’t raise the issue of his age during the original hearings, nor for many years afterwards, and had used numerous birth dates since arriving in New Zealand.

However, Mr G’s lawyer, Kerry Cook, said he was born in April 1986, but lost all documentation when he fled his war-torn home country as a boy, and two family members agreed, saying this was the date they always celebrated his birthday.

However, a Certificate of Identity issued in 1993, and his 1999 Certificate of New Zealand Citizenship, both recorded his birth date as April 1986.

Despite this, he was treated as an adult by police and jailed.

Cook said it was “abhorrent to any right-thinking member of society” that a 15-year-old could be sent to jail, and said the Court risked losing its moral authority and integrity if the convictions were allowed to stand.

On Friday, Justice Susan Thomas released her judgment, agreeing that Mr G was 15 when jailed.

She set aside his convictions, and quashed his sentence.

Justice Thomas accepted there had been considerable confusion about Mr G’s age, and conflicting birth dates in documentation.

“Any shortcomings in the systems of various agencies in apparently failing to verify the appellant’s date of birth are beyond the scope of this decision. I can only observe that the appellant used this to his advantage by giving dates of birth inconsistent with the only official records in New Zealand, apparently for reasons of bettering his own situation.”

Justice Susan Thomas upheld the appeal of a man who said he was jailed when only 15 years old.

Having weighed all the evidence, Justice Thomas was satisfied Mr G was born in 1986, and was thus only 15 when jailed.

“Given his true age at the time of the offending, the appellant should have been dealt with in the Youth Court, where no convictions would have been entered. This error was significantly compounded by two further jurisdictional errors when he was sentenced in the District Court rather than the Youth Court, and sentenced to 11 months’ imprisonment.

“The sentence of 11 months’ imprisonment has long since been served and it is simply too late to substitute any other order that could have been made in the Youth Court.”

Mr G’s lawyer, Kerry Cook, said in a statement that Mr G and his family were relieved and happy.

“The CCRC plays an important role in New Zealand’s legal system. It ensures that errors, not corrected by the appeals process, can be detected and corrected. It ensures that miscarriages of justice can be remedied.

“Miscarriages of justice harm our society as a whole. Unremedied, they cast a shadow over our justice system and make us question its integrity.

“Our justice system is good, but not infallible. The CCRC provides a necessary backstop. It is an organisation which needs to be applauded, and my client is grateful that our present government supports it.”

Cook said compensation for Mr G was a possibility, but he had not discussed it with him.

The CCRC has referred two other cases back to the courts for appeal, including the controversial murder conviction of Mikaere Oketopa, formerly known as Michael October.