Bungling alleged in wrongful conviction body appointments

Thursday, 28 November 2024

Justice minister Paul Goldsmith, who has caused controversy with his appointments to the body that investigates potential wrongful convictions.

The Minister of Justice has been accused of bias over appointments to the body that reviews wrongful convictions, and his ministry has had to apologise for how it handled the process.

New appointments to the Criminal Cases Review Commission (CCRC) have sparked controversy, with its chief commissioner, barrister Colin Carruthers, KC, being replaced by an ex-judge, resulting in concern the body won’t be considered independent and objective any more.

In addition, Justice Minister Paul Goldsmith decided not to reappoint one of the country’s most respected defence lawyers, Nigel Hampton, KC, and the only commissioner with a forensic or scientific background, Virginia Hope.

Goldsmith replaced them with Auckland lawyer 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 Crown prosecutor for 10 years before spending 11 months as a defence lawyer, and working at the Abuse in Care and Dilworth School inquiries.

Nigel Hampton, KC, says appointing a former judge undermines the Criminal Cases Review Commission’s independence, and will dent the confidence of those considering applying to have their cases reviewed.

This has led to strong criticisms here and overseas about the CCRC now having nobody with real criminal defence experience, or prior involvement in miscarriage of justice cases, which Carruthers and Hampton both had.

Hampton quit the CCRC immediately when recently retired Court of Appeal judge Denis Clifford was chosen to replace Carruthers at the head of the organisation, concerned the CCRC would now be perceived as part of the system that caused miscarriages of justice, rather than an independent check on its mistakes.

The Criminal Bar Association excoriated the appointments, saying they were “an unacceptable weakening” of the commission, and created a “grave imbalance” in its experience and skills.

Now, it has emerged that Goldsmith rejected applications from anyone with even modest experience as a criminal defence lawyer.

Figures from the Ministry of Justice reveal seven of the 16 applicants for commissioner roles had more than four years’ experience as defence lawyers. None were chosen.

Colin Carruthers, KC, who has headed the Criminal Cases Review Commission since its inception in 2020, but was replaced by an ex-judge, by new justice minister Paul Goldsmith.

In addition, two of the three applicants for the chief commissioner’s role ‒ as well as Carruthers who wanted to continue but wasn’t considered ‒ had such experience.

However, Goldsmith appointed Clifford, the only person without this background.

Alan Hall, who was convicted of murdering Arthur Easton, spent 19 years in jail for the crime. His conviction was quashed by the Supreme Court. Stuff followed Alan and his family during the process. (First published in June 2022)

A senior lawyer with extensive defence and prosecution experience, who applied for a commissioner’s position but wasn’t appointed, said it appeared Goldsmith was simply trying to rid the commission of anyone with real knowledge about defending people accused of crimes, when there should be at least three such lawyers on the seven-person commission.

“How would you feel if you’d been in prison for 20 years, and your last hope was the CCRC, and you found out the lawyer looking at your case is a trust lawyer, and the person in charge of it is an ex-judge, and everybody else has no real criminal law experience?

“I mean, that’s pretty much like asking for a second opinion on your cancer diagnosis, and going to a dentist.”

Lawyer Suzanne Robertson, KC, who has specialised in competition law, relationship property, and disputes concerning land tenure, contract and trusts, has been appointed to the Criminal Cases Review Commission.

The lawyer, who has extensive involvement in miscarriage of justice cases, stressed it wasn’t work you could just dip your toe into, but instead needed expertise in divining where the red flags were in cases, understanding what happened at trial, navigating the minefield of police disclosure, and assessing what might have gone wrong.

“And you need to be a really experienced criminal lawyer to do that. You can’t see that if you’re a civil practitioner, or trust practitioner, or someone who’s prosecuting.

“When I saw who they appointed, I just thought, well, they clearly don’t want senior criminal defence lawyers. That’s the only conclusion, because they are clearly not choosing people that are fit for purpose.”

Compounding the lawyer’s experience was that fact they weren’t told their application had been unsuccessful.

After receiving an automatic acknowledgement from the Ministry of Justice the day they applied, the lawyer heard nothing more.

“I was going to send an email asking what was going on ‒ and then I saw who they’d appointed, in the newspaper.”

The Ministry of Justice told The Post it hadn’t informed eight of the 16 people who applied for commissioner roles that they hadn’t been successful.

The ministry only recently contacted these applicants, almost three weeks after the new commissioners had been announced publicly, and only after The Post inquired how many applicants hadn’t been informed.

Former Court of Appeal judge Denis Clifford, who will head the Criminal Cases Review Commission from December 2.

It said the bungle was a result of “an oversight”, and apologised sincerely.

The ministry also said it was unaware Emma Finlayson-Davis’ husband is a partner at Meredith Connell, the legal firm that prosecutes criminal cases in Auckland ‒ including numerous people who have applied to the CCRC saying they were wrongfully convicted

This has been flagged as a potential conflict of interest issue.

The Ministry of Justice said Finlayson-Davis was required to certify she was eligible to be appointed to the CCRC, but it was satisfied her husband’s employment didn’t disqualify her, and the CCRC had conflict-of-interest procedures.

No applicants for the CCRC positions were interviewed.

Instead, a justice ministry panel provided Goldsmith with a summary of candidates, and recommendations, though the ministry says it didn’t rank applicants.

Goldsmith, whose choices are ratified by Cabinet and signed off by the Governor-General, has expressed confidence in the new appointees.

Former justice minister Andrew Little, who was instrumental in establishing the Criminal Cases Review Commission, has expressed concerns about its new appointments and the organisation’s future.

“Like all appointments, the Government considers a variety of options. Ultimately, these are for Cabinet to decide.”

Denis Clifford, Suzanne Robertson and Emma Finlayson-Davis have previously declined offers to comment.

It has also emerged there is no prescribed process for appointments to the CCRC.

Thus, it has been left to justice ministry bureaucrats to oversee the process, under direction from the minister.

The ministry has confirmed it unilaterally contacted several people to see if they would apply for the chief commissioner’s role, so Goldsmith had more options.

Former Justice Minister Andrew Little, who established the CCRC in 2020, has said the reason for transferring the job of reviewing wrongful convictions from the Ministry of Justice to an independent body was because he thought the ministry was too close to the judicial establishment.

Little suggested it might be time for the job of overseeing CCRC appointments to be removed from the ministry and handed to the Public Service Commission.

“The appointments process has got to lead to good, credible appointments.”