Gordon Campbell on the Privy Council’s Teina Pora decision

The quashing of the convictions of Teina Pora for the rape and murder of Susan Burdett in 1992 has shone a spotlight once again on a major gap in the New Zealand justice system. To all intents and purposes, access by New Zealanders to the Privy Council has now been closed. Yet the number of times in recent years when the Privy Council has quashed the findings of New Zealand courts has demonstrated that we are regularly (a) jailing the wrong person or (b) arriving at guilty verdicts on grounds sufficiently flawed as to raise serious doubts that a miscarriage of justice has occurred. Sometimes – as the Privy Council ruling on the Pora case has found – the decisive factor has been subsequent advances in forensic evidence. With Pora, this advance was over the reliability of false confessions.

Apparently, the Crown now has four weeks to decide whether to press for a third trial for Pora – who has been in jail for 22 years for reasons now held to be unsafe. Since we can now no longer call on the expertise of the Privy Council, it seems inevitable that similar miscarriages of justice will now go undetected in future. Therefore, a domestic legal entity needs to be set up to investigate potential miscarriages of justice, a body that will function independently of the courts and Parliament. Such a mechanism exists in Britain – it is called the Criminal Cases Review Commission (CCRC). The rationale for it was explained in this long Werewolf interview in 2010 with the distinguished British law professor Graham Zellick, who had chaired the CCRC between 2003 and 2008. Here are a couple of excerpts that seem relevant to the issues that the Privy Council have deemed central to the Pora case:

Question : Why should the CCRC be allowed to second guess the joint work of the judge and the jury in the original trial, given that those parties heard all the evidence in context, and were able to judge in person, the relative reliability of witnesses?

Zellick : And the answer is: we don’t. And it wouldn’t be right to do so, you’re absolutely correct. That’s why the jurisdiction only comes into play when there is something new, and which by definition, wasn’t before the trial judge and trial jury or indeed, the Court of Appeal. So, it is premised on the notion that something – whether it is legal, or factual – something new has emerged which justifies further consideration. And that further consideration is by the court, and by the appropriate and relevant appeal court. The CCRC system we have fully respects the role of the justice system, and of the judiciary. We don’t in any way replace or oust them. We simply provide a mechanism for laying before them something new that suggests the conviction isn’t safe.”

As Zellick explains, the CCRC is a referral system back to the courts, and not a process that supplants the court system. Yet to win the confidence of the public, it has to be set up to function independently of political interference and regardless of any initial territorial sensitivities among the judiciary :

Zellick… There’d been discussion in Britain for ways to do something about miscarriages of justice for years. The idea of removing it from the executive and creating an independent body was not by any means novel, but governments often don’t tackle issues of this kind until something forces their hand. You mention one case [The Birmingham Six] but there were actually a whole series of serious miscarriages of justice which eventually came to light, and were corrected.

Question : Leaving aside the political aspects – what is the principle involved that necessitates having such a body?

Zellick : The fundamental principle is that the door to justice in criminal matters should never be firmly closed, however long after the trial and appeal. That’s something very different from the situation in civil justice where you have to have finality because people base their affairs on judicial decision, and finality is everything. But on the criminal side, finality is not necessarily justice. There’s a secondary point that arises, and that is – what is the principle that governs who should be there to deal with these things? And there is a principle that says it shouldn’t be the executive…

Question : That’s what I wanted to ask, because our current position is that we do have a royal prerogative of mercy, and we do have the executive in the shape of the Minister of Justice occasionally exercising his discretion to launch an investigation and recommend that matters be sent back to the courts for consideration. What’s wrong with that model?

Zellick : Everything. New Zealand is not unusual. That is the common Anglo law Commonwealth situation, where the prerogative rests with the Crown and that translates into whatever the local arrangements are in Canada, Australia, or New Zealand. It was the situation in Britain until the mid 1990s. What’s wrong with it is two fold : first of all, if you analyse it, it does not accord with the proper sphere of executive action. Interference in individual cases within the justice system is no longer, in principle, regarded as being within the proper sphere of executive action. I think that is now generally recognized as a constitutional principle. We’ve sharpened up our ideas on the separation of powers in recent years.

Question : So the risk is that the situation may become politicized and the discretion exercised for political favour or gain?

Zellick : Or even less sharply, that Ministers have more pressing matters on their agenda, they don’t want to be distracted, they don’t have the time to give it their attention, their officials may realize from time to time that the Minister isn’t very interested – or that he is very interested. It works in very subtle ways, It may not be as crude as to say that there may be direct political manipulation of the process. The political arena is a very sensitive and curious and turbulent one.

And the issue of public confidence in the process then arises.

Zellick : Absolutely. And that, without doubt, is fundamental. No system involving a ministerial decision and the use of civil servants is ever – in my view – going to command sufficient public confidence. Also, those systems are very rarely transparent so you don’t have a clue what’s gone on, what’s going on, and how the decision was reached. And also they don’t normally have – though I suppose theoretically they could have – the necessary investigative powers that, in my view, are essential. “

Plainly, a local equivalent of the CCRC is now needed in New Zealand. After Teina Pora, Arthur Allen Thomas, David Dougherty, David Bain, Rex Haig… in almost every major criminal case in New Zealand our justice system has regularly got it wrong, and cannot be relied on to either (a) convict the right person or (b) manage the proceedings of justice in a way that instills public confidence that the ‘beyond reasonable doubt’ standard has been properly met.

As Zellick says, the problem is not the occasional miscarriage of justice, but the regular carriage of injustice. Now that we don’t have the Privy Council to detect and correct such instances, we need to follow the British example – and create an independent review body able to refer the cases it investigates ( and deems worthy) back to the courts for re-consideration.

MPs Pay Finale

Now that the dust has finally settled on the Great MP Pay Rise Turnaround, it seems clear that the government’s decision was not merely re-active – to the public’s sense of outrage – but highly pro-active as well. By linking MPs pay rises to the public service pay round and by backdating it to mid 2014, Prime Minister John Key is trying to put a dampener on the upcoming pay rounds for teachers, nurses and doctors. If the ludicrous Remuneration Authority pay rise had been left to stand, the public service unions would have had a potent weapon to take into this year’s pay negotiations.

It is now a win/win situation for the government. Public acclaim on one hand for its decisive response to their outrage. Moreover, if the public service unions aren’t chastened and do seek a catch-up pay rise, one effect will be to pass this same percentage on to MPs, thus making the unions – and not MPs – the scapegoats on the next time around. There is a better option, of course. If the government was truly penitent about the Remuneration Authority’s mooted pay rise, it could have endorsed the suggestion put forward by Greens Co-Leader Russel Norman. Norman had suggested that the law be changed in a way that would link any increase in MP salaries to the percentage rise in the median income. That sounded like an extremely good idea. It would have functioned as a kind of performance pay incentive to MPs. Only if they increase the wealth of us all, would they get to share in the bounty, equally.

The basic problem with percentage increases of any sort is that is that they raise issues of (a) ultimate adequacy – when is enough, enough and (b) income inequality. People on relatively low incomes may truly require a relatively large pay increase as the economy emerges from a period of wage restraint. If you’re on $35,000 a year a 4% increase would give you only an extra $1,400 before tax. Yet pass that same 4% though onto a Cabinet Minister who is currently on a base salary before perks of $268, 500 and you will be giving them an extra $10,700 before tax. Income inequality – and social injustice – both increase when high earners get the same percentage increase as those on relatively low incomes.

All of which suggests that initial enthusiasm for the Great Turnaround needs to be tempered. Yes, this new mechanism is better than the Remuneration Authority, who came across as socially tone-deaf and utterly clueless. The longer you look at it though, the worse the linkage with public service pay rises looks. What we need are actions that will help reduce the social and economic chasm of income inequality – not law changes that simply slow down the rate at which the chasm keeps on expanding. At some point, our parliamentarians have to look in the mirror and confess that they’re getting enough, period. On moral grounds alone, they should be volunteering for a zero wage round.
Iron and Wine, redux

Is it too early yet for the Iron and Wine revival? Samuel Beam’s debut album The Creek Drank The Cradle was such a perfectly-realized example of his hushed, intimate folk music that it took a while to recognise it as a creative dead end. The impasse was briefly obscured by the brilliance of the individual songs – “Sodom, South Georgia,” “Hickory” “Woman King” etc that came in the wake of the Creek album. Beam saw the problem long before anyone else did. Since then, he’s carved out a smaller following with a jazzier, less personal kind of music.

A revival may be in order. This month, Beam begun issuing a series of albums of previously un-released early tracks, and many are just as good as what was on his first two albums. The quality level is surprising, given that the 2011 double album Around the Well had already collected up many of the obvious rarities and cover versions. A good example of this new/ old material is a song called “Everyone’s Summer of ’95”. It focuses on the vast tracts of time that have to be filled somehow, during adolescence.

Time is the third rail in this music. Has there ever been a better song about the mother/son relationship than “Upwards Over The Mountain?”

Mother don’t worry, I killed the last snake that lived in the creek bed
Mother don’t worry, I’ve got some money I saved for the weekend
Mother remember being so stern with that girl who was with me
Mother remember the blink of an eye when I breathed through your body…..

From there…well, “Sodom South Georgia” is an obvious highpoint. In startling imagery, Beam fused together the death of a father and the birth of a daughter : “Both heads fell like eyes on a crack in the door…”. Maybe some other time for that one.. Even while singing in a highly personal way about the ties of family and friends, Beam did some great collaborations, like this one with Calexico :

And there’s the nearly 10 minute opus “ The Trapeze Swinger” which is a bit like that David Foster Wallace novel you always meant to finish. Endless numbered pages….but pretty rewarding, line by line.

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