Absolutely nothing has been got right in the Pora case. There hasn't been a single failure but rather a continuation of failures - which continue now. The failures have been systemic and while The Crown is entirely responsible, the confusion within the legal fraternity as to the scope of The Royal Prerogative of Mercy now compounds the problem. In the Pora case where public interest is at a high, yet the 'solution' chosen at this late point, the Privy Council, shows confusion as to what the Royal Prerogative of Mercy (RPOM) is intended to be.
Foremost, it is a safety net in cases with unsound convictions. It is defined in the Crimes Act as a method by which a case can be 'reopened' after the appeal process is exhausted, and on the basis of new evidence as one example. From there it departs the 'natural world.' Applications (petitions) are submitted to the Minister of Justice who takes 'advice' from Crown Law, thereby presenting the first difficulty in that Crown Law have invariably been the party responsible for the conviction. The applications may be sent to an 'outsider' for advice, most likely an ex Crown Lawyer or Judge. Despite a charge having been laid at the drop of a hat in the early days of a murder inquiry, the advisor may take years to report back, 1 or 2 years not being uncommon - so hardly the pace expected when there is somebody languishing in prison who may be innocent, and also far from merciful.
When the report is returned to the Minister the advisors recommendation is normally accepted, then Cabinet make a decision. Of course there are recent and important variations to those procedures. The current Minister rejected advice given to her regarding David Bain's application for an Exercise of the Royal Prerogative - different name there, but in fact same procedure with cabinet finally making a decision on a recommendation. She then, in secret, sought another 'report' in which she basically gave an outline of how the new report should be framed - note here intervention by the Minister in secret.
Moving to Scott Watson's recent application for an exercise of RPOM, over 2 years for a decision to be made not to exercise the prerogative - no 'direct' intervention by the Minister. However, comments from the Minister that echoed the opinion of the author of the report (a lawyer who just happens to be representing the Minister in the High Court at the moment on the Bain matter) that the conviction must stand primarily be virtue of the disputed finding of 2 hairs on a blanket. Think a little about the issue of 'public interest' and also of the word mercy. There is enormous interest in the Scott Watson case, public interest that seeks to be satisfied that he is either guilty or not, an interest not satisfied by the trial, and which remains alive today. Imagining an entire complex case broken down into the simplest terms the Minister and her advisor hang their hats on those two disputed hairs. Considering what 'mercy' is meant to be, compassion, fairness, clemency extended to a person within another's power or care. Considering also that the Minister has shown a willingness to be 'involved' in the advice accepted or rejected - it must have been both in the public interest, and in the fair application of the power of the state to have 'looked further' at the 2 hair samples, particularly where much else in the Watson case is hardly convincing of his guilt - more so of his innocence. Would any New Zealander object to the Crown seeking an agreement with Scott's counsel that the 'hair evidence' should be examined independently, few if any. So public interest is not satisfied and the word 'Mercy' is rendered as useless as the term 'Royal Prerogative.'
Another example of that rendering to 'useless' is this Minister 'sitting on her hands' depending to be powerless when almost every man, woman and dog in the Country has formed misgivings about Teina Pora's conviction and believe him to be innocent. The Minister has told the Country what she cannot do, and those claims are inconsistent with the use of the Royal Prerogative in the past. Notably in the Thomas case, and more recently in the Bain case where to both extremes actions were taken by the executive. In the Thomas case to pardon him, and in the Bain case, unfortunately, to 'work' against him.
This is all frustrating enough for the public, and difficult to imagine how difficult for Bain,Watson and Pora to name a few. I am not only disappointed in the process employed, but also in the 'staid' and apparently sombre few taken by the good lawyers who work, often without pay, for those that might be falsely accused and imprisoned. I think things are beginning to move to challenge and expand how 'mercy' of a Government toward it's captives should be expressed . We saw that last week with Michael Reed QC explaining his view of the Minister's meddling in David Bain's application for compensation in the Auckland High Court - something which to me has been a long time coming. When I write about challenging and expanding 'mercy,' or the use of Prerogative Powers, surely that is up to the Lawyers. Up to them to not accept the way things have been but rather show how they should be. The Courts, as Reed has shown, is the place for that. An independent Judiciary asked to rule not only on the exercise of the Law, but also on it's concepts such as due process, natural Justice and the protection of us all under The Bill of Rights.
It's not right that Pora is in prison now, it is not right that Watson has been denied an application based in its refusal on 'suspect' evidence - many people will agree. However, they might also agree that the role of the Courts should be exercised in the fundamentals of Justice. For many years there has been talk of Criminal Conviction Review authorities, we now fortunately also have a Innocence Project - however it is disregarded that we have laws on the books now that venture right to the concept of Justice for the falsely imprisoned and which are not being used - save for the current Judicial Review by Bain which deals by remote 'control' with false imprisonment, but which is in fact seeking a 'fair' outcome to false imprisonment.
Reading the Exercise of the Royal Prerogative Legislation, and the executive 'rules' regarding compensation there are few actual restrictions, if any, that can 'overcome' basic rights. But what has happened is that Crown have been restrictive in their role, hindering and controlling to a point that would not, and could not be allowed to happen in the Courts. Therefore, when an application is made it is not necessarily in the mind of the applicant or his or her lawyer that they will 'test' the exercise of the 'power' and monitor very closely its adherence to the core of the law and a citizen's rights, or in fact ask for 'specific' issues to be dealt with in a specific way and consider taking them to the Court if not undertaken in a manner consistent with the Law. I suggest there is nothing stopping this, apart from the idea that it is a new 'approach' and not therefore within current experience.
Pora could today be making an application for an exercise of the RPOM and be releasing it to the public so that it might be seen to contain all the issues current with that case and public concern at the moment, right down to him being released or paroled in some fashion immediately. If the Minister 'chose' to say she can't do 'this or that' and if Krebs for example thought not only that she could but that she must - he could take it to Court in order to assist his client and for the Country to see that we do have a system to arrest the falsely imprisoned from their peril - and it lies within the Courts where necessary.
Are all witnesses paid to testify?
ReplyDeleteOnly the ones that are prepared to lie, in the Pora case at least. The 'classic' and possibly most disturbing feature is that when Pora's conviction was under threat and he was retried, Rutherford found prison inmates who were prepared to lie, putting Pora together with Rewa, but only if they got paid.
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