More criticism over appointments to wrongful conviction body

Saturday, 9 November 2024

Stinging criticism continues to mount about appointments to the body that investigates wrongful convictions, with lawyers saying the government has deliberately gutted the organisation of expertise, and is interfering with the justice system.

Justice Minister Paul Goldsmith has replaced the head of the Criminal Cases Review Commission (CCRC), barrister Colin Carruthers, KC, with recently retired Court of Appeal judge Denis Clifford.

Involving a judge is something many have warned against, given judges will already have rejected appeals from those applying to the independent commission saying they’ve been wrongfully convicted.

Goldsmith also didn’t reappoint one of the country’s most respected lawyers, Nigel Hampton, KC, and scientist Virginia Hope, as commissioners.

In their place, he has put two less-experienced Auckland lawyers, Suzanne Robertson, KC, who has specialised in competition law, relationship property, and disputes concerning land tenure, contract and trusts, and Emma Finlayson-Davis, who was a prosecutor for 10 years, before spending less than a year as a defence lawyer, and working on the Abuse in Care commission of inquiry.

The remaining commissioners are former police officer Paula Rose; Auckland University professor of indigenous studies Tracey McIntosh; Auckland University associate professor and social scientist Tamasailau Suaalii-Sauni; and Auckland lawyer Kingi Snelgar.

Only Carruthers and Hampton had extensive experience with miscarriage of justice cases prior to joining the commission.

The new appointments led to Hampton immediately resigning from the body, despite his term not ending until December, saying appointing a former judge undermined the commission’s independence, and would dent the confidence of those considering applying to have their cases reviewed.

Criminal Bar Association of New Zealand spokesperson Annabel Cresswell said Goldsmith’s decision not to extend the appointments of Carruthers, Hampton and Hope was “an unacceptable weakening” of the commission, and created a “grave imbalance” in its experience and skills.

“The minister’s latest decision to gut the commission of proper expertise brings our justice system closer to an American-style system, where innocent victims of miscarriages of justice languish in prison for decades without access to a fair hearing.”

While noting Clifford’s expertise, Cresswell said the association was alarmed almost no CCRC commissioner now had substantive experience in high level work on miscarriages of justice, or as defence lawyers.

“For the Government to deliberately undermine the expertise of this commission is an unacceptable interference with New Zealanders’ access to justice, and the work of our courts.”

She said commissioners assessing whether a miscarriage of justice had occurred couldn’t rely on “only anecdotal or academic experience”, and the removal of relevant knowledge and experience was “short-sighted and makes our system less fair”.

“It will cost us more, both in terms of many more dollars to keep people wrongfully imprisoned rather than have their appeals rightfully heard, and far worse, cost our society dearly in terms of the lost potential of those who will fall through the cracks because no one with the right experience was there with the safety net.”

Senior Auckland criminal lawyer Julie-Anne Kincade, KC, said the new appointments “appear to tip the scales of the CCRC commissioners too heavily in the direction of the police, Crown, and State”.

Kincade represented Gail Maney, who was wrongfully convicted of murdering Deane Fuller-Sandys in the Gone Fishing case and spent 16 years in prison before being acquitted in October.

When the CCRC was established, Kincade and fellow defence lawyer Emma Priest expressed concerns with some appointments, including having former police superintendent Paula Rose on the commission.

Kincade said the ability to see what had gone wrong in a case was a skill that benefited from first-hand experience as a defence or appeal lawyer.

“Appellate work is usually about challenging the police, lawyers, and judges. Mistakes, or worse, have occurred and you are demanding they be fixed.”

She said New Zealand was a small country, and great care had to be taken with not just the actual separation of power, but also perceptions about those appointed to public roles, through no fault of their own.

“This is an opportunity missed to have a robust panel of people who among them have experience in representing defendants in criminal cases, and specifically in miscarriages of justice which, in the end, is at the core of any CCRC.”

News of the controversial appointments has received publicity in the UK, with English miscarriage of justice expert Jon Robins writing that it echoed political interference in the UK CCRC.

Robins told The Post there had been a marked change in the types of commissioners appointed to the UK CCRC.

“We are now seeing few new commissioners with a track record fighting injustice, and few with a background in investigation or as a defence lawyer.”

However Robins, a criminology lecturer at Brighton University, who has written numerous books on justice issues, says the UK CCRC has never had a former judge as its head, since it began in 1997.

“For the blindingly obvious reason that it’s essential that a miscarriage of justice watchdog is independent from the courts. The very point of the CCRC is to refer cases where the judiciary may have messed up.

“It also needs to be able to withstand criticism from the courts for referring a controversial or borderline decision; and the wrongly convicted need to have confidence in that organisation. Perception is vital.”

Robins warned New Zealand not to make the same mistakes as the UK CCRC, where concerns about appointments and its independence have undermined the organisation.

As an example, he noted that although the UK CCRC hadn’t appointed a judge, its chair, Helen Pitcher, was recently made the head the Judicial Appointments Commission which selects judges.

“It's an appalling decision. Our CCRC has been consistently criticised for being overly deferential to the courts, and for its reluctance to refer cases back to them.

“And no one seemed to spot, or seemed bothered by, the self-evident conflict of interest of having someone spending half their week presiding over the body investigating miscarriages of justice, and the other half giving jobs to judges.”