Head of wrongful conviction body defends controversial appointment

Sunday, 8 December 2024

Denis Clifford didn’t foresee the criticism his appointment to head the Criminal Cases Review Commission would spark. In his first week on the job, he spoke with Mike White about the concerns, and why he thinks he’s qualified.

The press release was routine.

Just over 150 words, seven unimaginative paragraphs, one spelling mistake.

It came from the Beehive, from Justice Minister Paul Goldsmith, announcing the new head of the Criminal Cases Review Commission (CCRC) would be retired judge Denis Clifford.

There would be two other new appointees, Goldsmith said, and there was perfunctory gratitude for those being replaced at the organisation.

In the wake of cases like Teina Pora, David Dougherty, Aaron Farmer, and Jaden Knight and Phillip Johnston, the CCRC was set up in 2020 to investigate potential wrongful convictions in New Zealand.

If the commissioners believed it was “in the interests of justice”, cases could be referred back to the courts for a new appeal.

Since its establishment, the CCRC had been headed by barrister Colin Carruthers, KC, and included a range of academics, scientists and lawyers - including one of the country’s most lauded defence barristers, Nigel Hampton, KC.

But when National, which opposed the CCRC’s creation, came to power, Goldsmith decided it was time for a change.

He effectively dumped the only people with prior miscarriage of justice experience, Carruthers and Hampton, who had wanted to stay in their roles, as well as the sole commissioner with forensic experience, Virginia Hope, by not renewing their roles.

In their place, he put retired judge Denis Clifford, who had never worked as a criminal lawyer, as chief commissioner; Emma Finlayson-Davis, who spent 10 years as a Crown prosecutor before 11 months doing defence work; and Suzanne Robertson, KC, who specialised in competition law, relationship property, and disputes concerning land tenure, contract and trusts.

The press release seemed anodyne.

What followed, wasn’t.

On hearing an ex-judge had been appointed chief commissioner, Hampton quit the CCRC immediately, despite having more than a month left with the body.

Hampton said appointing a former judge created the perception it was just another part of the same justice system that caused wrongful convictions in the first place, rather than being an independent check on it, and this would dissuade people from bringing their cases to it.

CCRCs in England and Scotland have largely avoided involving judges, “for the blindingly obvious reason that it’s essential that a miscarriage of justice watchdog is independent from the courts,” said UK justice expert Jon Robins.

“The very point of the CCRC is to refer cases where the judiciary may have messed up.”

Hampton’s concerns about stripping the CCRC of anyone with previous experience in miscarriage of justice cases, or significant criminal defence work, were echoed by those who helped establish the commission, and many others in the justice sector, including the Criminal Bar Association.

“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,” spokesperson Annabel Cresswell said.

Another senior lawyer with extensive experience in criminal trials and miscarriage of justice cases, who was overlooked for a commissioner’s role, said knowing what to look for in wrongful conviction cases, and what the red flags were, wasn’t something novices could learn quickly.

“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.”

Even former justice minister Andrew Little, who was instrumental in establishing the CCRC, questioned Clifford’s appointment.

“With all due respect to [Denis Clifford], he’s not somebody who stands out to me as somebody who has taken a critical view, in relevant cases, on prosecution.

“If people who consider themselves to be victims of a miscarriage of justice find themselves making an application to a body that has another judge on it, even a senior judge, then they will be forgiven for thinking they’re just going through another part of the justice system that, generally speaking, they will have already lost confidence in.”

Goldsmith defended his choices, saying he had confidence in those he appointed.

Suzanne Robertson and Emma Finlayson-Davis refused to comment, even when concerns were raised that Finlayson-Davis’ husband is a partner at Meredith Connell, the Auckland law firm that has prosecuted many of those applying to the CCRC saying they have been wrongfully convicted.

Denis Clifford initially said he may respond in February or March.

However, in the face of mounting criticisms, Clifford agreed to speak with the Sunday Star-Times this week, as he began his role.

At what Clifford expected to be his last sitting as a Court of Appeal judge in 2022, he mentioned wanting to learn more about New Zealand history and te ao Māori in his retirement.

In truth, he was also keen on taking time off, after 18 years on the bench.

But when Court of Appeal colleague Simon France became ill, Clifford stepped back in to fill the gap.

“When that came to an end, I started to look around as to what I might do, and these positions were advertised around that time,” Clifford says.

Despite his background being in commercial and public law, as a partner at Buddle Findlay, Clifford says his time dealing with criminal cases while a judge meant he understood mistakes were made, and innocent people could end up in prison.

“I have seen the system from the inside. And I think the commission has an incredibly valuable and important role to do. So that’s what essentially motivated me.”

While his wife, Jane Meares, until recently served on the Transport Accident Investigation Commission with CCRC deputy Paula Rose, Clifford says he didn’t really discuss the commissioner’s role with Rose.

And apart from Rose, he doesn’t know the other commissioners, who include academics and lawyers.

Clifford says he won’t comment on concerns about other appointments, and the loss of any real criminal defence experience from the commission.

But he is willing to address criticisms that an ex-judge has been chosen to lead the organisation, with the possibility applicants may assume Clifford is mates with the judges who oversaw their cases, and therefore won’t tamper with their decisions.

He understands the belief by many that the courts and the criminal justice system are part of “a judicial monolith”, meaning perceptions of conflicts of interest were inherent.

“While I can perceive the perception, understand the perception, I don’t see it disqualifying me from this new role.”

But surely he can understand that a wrongfully convicted person, maybe still in prison, will look at the CCRC, see an ex-judge at its head; a former career police officer and Parole Board member (Rose) as his deputy; commissioners who have prosecution backgrounds; virtually nobody with experience defending accused people; and nobody who has previously been involved in a miscarriage of justice case, and think, “Why should I bother even applying to this organisation?”

Clifford says he can’t get inside the heads of applicants, but emphasised the CCRC had a statutory responsibility to act independently, impartially, and fairly.

“I think the important thing for people applying to the commission is to know the commission, the commissioners, its staff, and their expert advisers - of which there are both legal and forensic - are committed to their task, and will consider applications with an open mind, and with a willingness not to come too quickly to the conclusion that there isn’t something that deserves a further look.”

With regard to concerns he doesn’t have relevant experience with wrongful convictions, Clifford says he dealt with issues like eyewitness evidence, police interviewing, and counsel competence all the time in the courtroom.

“And as a judge, when you’re determining an appeal, you’re really seeing if the line in any of those areas, or anything else that’s been raised, has been crossed.

“And you get to be very familiar with the themes of miscarriage of justice.

“Whilst my experience hasn’t been at the criminal bar, I’ve been doing it for long enough, I think, to have the nose for problems that arise.”

Clifford couldn’t say how many innocent people were in New Zealand prisons, or how often people were wrongfully convicted.

“Are we sure we know all miscarriages of justice are identified and responded to? The answer would obviously be, no, we don’t. We can’t.

“And I guess the role of the commission is to make the process of identification and response more available to defendants, and more transparent.”

Since it began in July 2020, the CCRC has received 492 applications from people claiming they have been wrongfully convicted or sentenced.

Four cases have been referred to the courts for a new appeal, and 29 cases are currently being investigated in detail by commission staff.

However, some applicants who applied more than four years ago, are still waiting for a decision, despite remaining in prison.

Clifford notes the commission was deluged with applications when its doors opened, and its work was then affected by Covid.

However, under his watch, he doesn’t want any perceptions the commission isn’t working with urgency, and he expects waiting times to drop, as the initial surge of applications is worked through.

Clifford doesn’t feel the CCRC’s work will be hamstrung by the loss of the only people with defence and miscarriage of justice experience among its seven commissioners.

“If I’d thought that, I wouldn’t have taken the job on, or wouldn’t go forward with it.”

As for whether his appointment, and those of the other new commissioners, would undermine confidence in the CCRC, Clifford says he has read all the criticisms being raised.

“I’m taking the concerns seriously.

“I would hope the public and applicants see that, notwithstanding the concerns that have been expressed about this appointment process, that the commission is going in the right direction, that applications are being received, dealt with in an open-minded way, and processed expeditiously given the complexities they raise.

“The proof of the pudding will be in the eating.”

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