The Criminal Cases Review Commission Bill had its third reading on 12 November 2019.

The bill was introduced by Justice Minister Andrew Little on 27 September 2018. It establishes the Criminal Cases Review Commission, to review and investigate criminal convictions and sentences and decide whether to refer them to an appeal court. This will replace the power currently exercised by the Governor-General under section 406 of the Crimes Act 1961, the part of the prerogative of mercy which is the power to refer a person’s conviction or sentence back to the appeal courts.

The Act will come into force on a date appointed by the Governor-General by Order in Council, and one or more Orders in Council may be made bringing different provisions into force on different dates. The rest of the Act will come into force on 1 July 2020.

The Commission would comprise between 3 and 7 members and would be independent of other government agencies and the Government and at least 1 member must have knowledge or understanding of te ao Māori and tikanga Māori. The Commission’s procedures must be consistent with the principles of the Treaty of Waitangi (te Tiriti o Waitangi). One third of the members must be legally qualified (clause 9).

Clause 12 of the bill provides that the Commission can initiate and conduct inquiries into a matter if the Commission identifies a practice, procedure, or other matter of a general nature that it considers may be related to cases involving a miscarriage of justice or the potential to give rise to such cases. The Commission may also conduct an inquiry into the matter on its own initiative if it is satisfied that inquiry is in the public interest (clause 12(2)).

Clause 16 provides that the Commission must act independently, impartially, and fairly in performing its functions and exercising its powers.

Commission’s function

The Commission’s primary function (clause 17) is to make decisions regarding whether a case should be referred to an appeal court and in doing so the Commission must have regard to:

• whether the eligible person has exercised their appeal rights; and
• 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; and
• the prospects of the court allowing the appeal; and
• any other matter the Commission considers relevant.

An appeal against conviction or sentence may be referred to the High Court (if eligible person’s right of first appeal against a conviction under subpart 3 of Part 6 of the Criminal Procedure Act 2011 is to the District Court or the High Court) or otherwise the Court of Appeal. An appeal against sentencing may be referred to the High Court (if eligible person’s right of first appeal against a sentence under subpart 4 of Part 6 of the Criminal Procedure Act 2011 is to the District Court or the High Court) or otherwise the Court of Appeal (clause 18).

The appeal courts must hear and determine the matter as if it were a first appeal (clause 20).

A living person who has been convicted of an offence (clause 21 – eligible person) or a person authorised to act as their representative (clause 23) may apply to the Commission for it to refer convictions and sentences. Once received the Commission may decide to take no further action if the eligible person dies or no longer wished to proceed, or in the Commission’s opinion the application is frivolous, vexatious or not made in good faith, or for any other reason the Commission believes that it is unnecessary or inappropriate (clause 24).

The Commission is empowered under clause 27 to make initial inquiries on its own initiative if it is satisfied that those inquiries are in the public interest. However, it the eligible person does not consent the Commission cannot investigate further.

The Royal prerogative of mercy is not limited or affected by the Act. The Commission may transfer an application for exercise of the Royal prerogative of mercy (clause 28) and the Minister of Justice may then ask the Commission to provide opinion on any matter arising in relation to the Royal prerogative of mercy (clause 29 (1)).

Powers of Investigation

The Commission may require a person, by written notice, to produce documents or things that a person may hold and that may be relevant to the investigation (clause 32). The Commission may examine, make copies, photographs, or create records of those things or documents.

The Commission is empowered to require a person to appear before the Commission to be examined on oath or affirmation, answer questions, or permitting the person to give evidence by any other means approved by the Commission (clause 33). The Commission may apply to the District Court for orders against a person on the grounds that they have failed to comply with those requirements.

Clauses 34 to 36 provide for protection of information that has been gathered during an investigation. Clause 35 sets out when the Commission might disclose that information when reasonably necessary including for the purposes of criminal, disciplinary, or civil proceeding or to assist in dealing with a matter relating to the exercise of the Royal prerogative of mercy or where it would prevent or lessen a serious threat to public health or safety or an individual’s life or health.

Clause 37 provides for privileged information. A person is protected from the requirement to provide information recognised in sections 54 to 60 or 64 of the Evidence Act 2006, or where disclosure is prevented by an enactment, a rule of law, or an order of the court prohibiting or restricting disclosure or the manner of disclosure. Examples of protected information include communications between a lawyer and a client, information told in confidence to a minister of religion for the purpose of spiritual advice or information that would be likely to incriminate the person who is being asked to provide it.