Legal Beagle by Graeme Edgeler


Compensation for Teina Pora?

Teina Pora is innocent.

The Government, having considered the matter, apparently agrees he should not be re-tried. It is not clear whether the Government agrees he is innocent, but I suspect they don’t.

With no re-trial ordered, Pora’s involvement with the criminal justice system over Susan Burdett’s rape and murder are over, and his lawyers will likely now raise the possibility of seeking compensation for the time he ought not to have spent in prison.

I’ve been meaning to write about compensation for miscarriages of justice for some time. One of Pora’s lawyers, Malcolm Birdling, wrote his doctoral thesis on the correction of miscarriages of justice, and was rather scathing. But the broader discussion will have to wait for a day when I have a little more time.

Cabinet has issued guidelines about who qualifies for compensation under its ‘ex gratia’ scheme. Before anyone gets compensation for having served prison time for a wrongful conviction, they have to convince the Government they are probably innocent. The Government will consider claims from people who fall outside the guidelines, but imposes an additional hurdle before they will qualify.

People who want to claim for a wrongful conviction, but who fall outside the guidelines must prove not only that it is more likely than not that they’re innocent, they must also show that there are “exceptional circumstances”, which the government says is a very high test. An example of an exceptional circumstance that has been accepted in the past is that the person isn’t just probably innocent, but is innocent beyond reasonable doubt; others include serious wrongdoing by authorities, or police failing to investigate claims of innocence during their investigation.

David Bain was acquitted at trial, so his claim for compensation falls outside the guidelines, which makes his claim a lot harder. Justice Binnie looked at his case, and determined there were exceptional circumstances (in part, for example, because police had destroyed evidence following the conviction, making challenging the conviction more difficult), but the government was a little snippy about his views on that.

So what of Teina Pora? Earlier today, Canterbury University’s dean of law Chris Gallavan was on Morning Report, and had the following exchange with Susie Ferguson:

SF: Now, not having an automatic retrial in this case, will this work in Teina Pora’s favour for compensation?

CG: It does, actually, and if anybody looks up the Cabinet Manual, the guidelines to Cabinet on the granting of this compensation, they’ll see that the first criteria is actually squarely in the Teina Pora situation, that there’s either been a pardon or that the conviction’s been quashed on appeal without an order for a retrial, which is exactly what’s happened here.

The Minister of Justice, Amy Adams, has apparently made similar statements, as have Otago University’s Marcelo Rodriguez-Ferrere, Ingrid Squire (another of Teina Pora’s lawyers), and, as it happens, me in a tweet or three the night the Privy Council’s decision was released. Now that I’ve actually checked, it seems we are all wrong.

The place to look is, as Chris Gallavan suggests, the Cabinet guidelines, and I copy the appropriate bit below:

1. The category of claimants who shall be eligible to receive compensation or ex gratia payment in respect of being wrongly convicted of offences (qualifying persons) is limited to those who:

(a) have served all or part of a sentence of imprisonment; and either

I. have had their convictions quashed on appeal, without order of retrial, in the High Court (summary convictions); Court of Appeal (including references under section 406 of the Crimes Act 1961); or Courts Martial Appeal Court, or

II. have received a free pardon under section 407 of the Crimes Act 1961; and

(b) are alive at the time of the application.

The requirement that the convictions be quashed on appeal, without order of retrial is there. But the eagle-eyed among you will notice that a person only falls within the guidelines if the conviction is quashed in the High Court, Court of Appeal, or Courts Martial Appeal Court. And Teina Pora’s conviction was not quashed in the High Court, Court of Appeal, or Courts Martial Appeal Court.

The guidelines do not mention the Privy Council. I think the distinction that the guidelines make is a stupid one, especially in light of the creation of the Supreme Court, which is also not mentioned. But the distinction is nonetheless there, and any claim that may be made by Teina Pora falls outside the guidelines, and thus may require proof of exceptional circumstances.

I am hopeful that pragmatism may prevail (especially in light of Amy Adams’ comments), but given the New Zealand Government’s historical practice when it comes to correcting miscarriages of justice, I’m not sure that hope is well-placed.

How much might Teina Pora get? The guidelines set a base figure of about $100,000 per year of incarceration, which can be increased in "truly exceptional" circumstances. As for how much Pora should get, well, if the headline the day after compensation announced couldn’t be mistaken for a news story about a powerball jackpot, I reckon the Government will have secured a bargain.

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