By Geoff Adlam
A new era in New Zealand’s criminal justice system began on 1 July when the Criminal Cases Review Commission opened for business.
The mission of the new Commission is stated on the home page of its new website (www.ccrc.nz): “Anyone convicted of a crime in a New Zealand court, and who believes they have suffered a miscarriage of justice over their conviction or sentence, or both, can apply to the New Zealand Criminal Cases Review Commission for an independent review of their case.”
Other common law jurisdictions have had similar entities for some time, and the idea of an extra-judicial means of reviewing convictions and sentences is not new to New Zealand. Retired High Court judge Sir Thomas Thorp promoted the idea of a review commission in 2005 with his book Miscarriages of Justice.
Sir Thomas died on 27 September 2018, the same day that Justice Minister Andrew Little introduced a bill to Parliament to establish the CCRC. The bill received a third reading on 12 November 2019 and the Criminal Cases Review Commission Act 2019 received Royal assent on 16 November.
“The CCRC is an independent body that will review convictions and sentences where there is a suspected miscarriage of justice,” Mr Little said on the bill’s introduction. “It can refer cases back to the appeal courts, but it does not determine guilt or innocence. The CCRC will replace the referral power currently exercised by the Governor-General under section 406 of the Crimes Act 1961.
“The CCRC will be accessible and will take away some of the burden from applicants who require assistance.”
Until 1 July 2020, someone who believed they had suffered a miscarriage of justice could apply to the Governor-General for exercise of the Royal prerogative of mercy. This could be exercised to grant a free pardon or to refer a conviction or sentence back to the Court of Appeal or High Court. Section 30 of the 2019 Act says nothing in the Act limits or affects the Royal prerogative of mercy. Section 28 allows the Governor-General to transfer applications to the Commission.
The new regime puts an independent body in charge of reviewing alleged miscarriages of justice. It does not replace the ultimate decision on whether there has been a miscarriage: this is left to the courts. Section 3 of the Act says: “The purpose of this Act is to establish an independent body to investigate and review criminal convictions and sentences and decide whether to refer them under the Act to an appeal court.”
Who is the Commission?
The CCRC is an independent Crown entity. On 21 February 2020 Mr Little and NZ First MP Darroch Ball announced the appointment of Colin Carruthers QC as Chief Commissioner for an 18-month term from 1 February. This was later extended to June 2024. Mr Carruthers was admitted as a barrister and solicitor in March 1968 and appointed Queen’s Counsel in 1990. While experienced in commercial litigation, he has also extensive experience in criminal law, both as prosecutor and as defence.
An Establishment Advisory Group was appointed at the same time, to provide advice on the CCRC’s design to ensure consistency with the legislation. The members came from a variety of backgrounds, with the common link being a strong connection to an aspect of the criminal justice system. They were Professor Tracy McIntosh, Nigel Hampton QC, Professor Elisabeth McDonald, Dr Anna Sandiford, Dr Tamasailau Suaalii-Sauni, and Tim McKinnel.
It was also announced that the Commission would be based in Hamilton.
“As with CCRCs in England and Scotland, it is important the New Zealand CCRC is independent from the big bureaucratic and judicial centres, Auckland and Wellington,” Mr Little said.
Membership of the Commission’s Board was announced on 2 June. Former New Zealand Police National Manager of Road Policing Paula Rose was appointed Deputy Chief Commissioner for a five-year term from 15 June. Ms Rose is a member of the Parole Board and has worked in a range of governance roles.
Five inaugural Commissioners were also appointed for varying terms from 15 June. They are Manukau barrister Kingi Snelgar (five years), Palmerston North Deputy Mayor Tangi Utikere JP (four years), Nigel Hampton QC (three years), Professor Tracey McIntosh (four years), and Dr Virginia Hope (three years).
There were 80 applications for the Commissioner roles. Mr Little said each of the Commissioners brought a wealth of experience and expertise to their roles, and with Mr Carruthers would form the inaugural board.
“It is important that the board has a mixture of legal expertise, governance experience and subject matter knowledge, and I am confident we have achieved that with these appointments.”
Will it be ready in time?
In an update in early June, Chief Commissioner Colin Carruthers QC said that despite the disruption caused by COVID-19 response measures, decision-making and implementation work had continued at a brisk pace. A lease had been signed in May for an office in Alma Street in Hamilton, and the property was on track to be ready for the 1 July launch. A new website was up and running and would be refreshed with new information by the launch.
Mr Carruthers also noted that while the Budget on 14 May was dominated by the pandemic response, Budget 2020 allocated the CCRC a total of $15.948 million over four years from Vote Justice.
“Very welcome news as we progress decision-making about the resources we need to get up and running,” he said. “The commentary accompanying the appropriation described the CCRS’s investigative and referral powers as an additional check and balance which will help build public confidence in the justice system.”
How to make an application
The website provides an application form. There is no charge for an application and anyone can apply to have their conviction or sentence referred to an appeal court, if they believe that a miscarriage of justice has occurred.
The CCRC says it will want to know whether the applicant has exercised their rights of appeal to the court. “You are more likely to have your appeal accepted if you have used all your rights of appeal. We will also consider the extent to which the application relates to new evidence or a question of law, and also the prospects of the appeal succeeding."
Applications can be made on behalf of someone. Once an application has been made the CCRC will contact the person for whom is has been made and ask for their agreement. The applicant does not need to know the person convicted.
“You do not need a lawyer to apply to the CCRC, however you may like to ask a lawyer to assist you in completing the application form as they will be able to help you with your grounds for review,” the website states. It says legal aid can be applied for to make an application.
The CCRC also advises that it can make inquiries on its own initiative and does not need an application “if we’re satisfied that those inquiries are in the public interest. But we’ll need to notify the person concerned that we are doing this. This power will only be used where necessary and appropriate.”
How it will work
“Our Commissioners’ role is to accept or decline applications. When an application is received it will be assessed. The Commissioners review the assessment and either refer it for a full investigation or decline the application,” the CCRC says.
“There is a range of factors we must consider when assessing an application, including whether the applicant has exhausted all appeal rights, whether there is fresh evidence and the prospects of a referral succeeding.”
Section 17 of the Act says the CCRC may refer a conviction or sentence to the appeal court if it considers that it is in the interests of justice to do so. In its decision it must have regard to whether the applicant has exhausted all appeal rights, the extent to which the application relates to argument, evidence, information, or a question of law raised or dealt with in proceedings relating to the conviction or sentence, the prospects of a referral succeeding and “any other matter the Commission considers relevant”. In its website outline, the CCRC says it must consider whether there is fresh evidence.
The CCRC says reports will be produced on applications that are referred for a full investigation. The Commissioners review the investigation report and decide whether or not to refer the case to the court.
After it has made its decision, it will let the applicant or convicted person know the outcome. A short media release will be issued and a summary of the decision made available. Specific information on the case will not be made public.
“If you disagree with our referral decision we suggest you seek legal advice,” it states.