Pora v The Attorney-General

• Jurisdiction: New Zealand
• Judge: Ellis J
• Judgment Date: 28 August 2017
• Neutral Citation: [2017] NZHC 2081
• Docket Number: CIV 2016-485-912
• Court: High Court
• Date: 28 August 2017

Between

Teina Anthony Pora

Applicant

and

The Attorney-General

Respondent

[2017] NZHC 2081

CIV 2016-485-912

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

Judicial Review, Criminal Procedure — Judicial review application seeking review of Cabinet decision to not include interest on compensation for wrongful imprisonment

Counsel:

G J X McCoy QC and J G Krebs for Applicant

P T Rishworth QC and M Majeed for Respondent

JUDGMENT OF Ellis J

1 Teina Pora spent nearly twenty years in jail for a crime that he did not commit. 1 He was 17 when he was first arrested and spent over a year in custody on remand, before trial. He was 39 when his conviction was quashed by the Privy Council. There is no other case in New Zealand legal history where it has been accepted by the Crown that a person has been wrongly imprisoned for anywhere near that length of time.

2 That those such as Mr Pora should receive compensation for the time they have spent in prison cannot be doubted; for some time now there has been broad international agreement about that. That consensus is reflected in art 14(6) of the International Covenant on Civil and Political Rights (the ICCPR) – as to which more, later. The immensity of the harm caused to such persons has been noted on many occasions, 2 but in Mr Pora's case it was summed up by the former High Court Judge, Rodney Hansen QC like this: 3

As the Crown acknowledges, there can be no doubt that the circumstances of Mr Pora's case are truly exceptional. The lengthy term of imprisonment and Mr Pora's youth and vulnerability are by themselves sufficient to put his claim in the truly exceptional category. He suffered grievous mental and emotional harm. Family relationships were lost or destroyed and were more or less non-existent for much of his incarceration; important relationships, particularly with his daughter, had to be built from scratch. As earlier noted, harm of this nature continued when Mr Pora was on bail (on highly restrictive conditions) and on parole.

3 In New Zealand, payment of compensation in such cases has historically been regarded as a matter of executive grace and favour. Compensation is seen as an adjunct to the prerogative of mercy, requiring approval by Cabinet.

4 Since 1998, however, the payment of “ex gratia” compensation for those who have been wrongly imprisoned has been the subject of detailed Guidelines, under which the key assessments of both eligibility and quantum are initially made by a Queen's Counsel, engaged by the Minister of Justice (the Minister). Once a claimant's eligibility has been accepted, the Guidelines contemplate a specific process for quantifying compensation for both pecuniary and non-pecuniary losses. And in terms of non-pecuniary losses, they have, since 2000, utilised a figure of $100,000 both as the appropriate compensation for each year a claimant has been deprived of liberty and as the benchmark for assessing other such losses. That yearly figure was based on, and was intended to reflect, awards by the New Zealand Courts for false imprisonment at the time.

5 That $100,000 annual figure has remained unchanged since its adoption. On any analysis, that annual sum had considerably more value then, than does the same sum, 16 years later. The actuarial evidence before the Court was that $100,000 in 2000 is worth $138,000 in today's terms.

6 In accordance with the Guidelines, Mr Pora's application for compensation was referred to Mr Hansen. Mr Hansen prepared two reports. The first concluded that Mr Pora was (on at least the balance of probabilities) innocent of the murder and rape of Ms Susan Burdett, the crimes for which he had been twice convicted and imprisoned. In the second, Mr Hansen determined that an application of the Guidelines would result in the payment to Mr Pora of approximately $2.5 million in compensation for his wrongful imprisonment, including approximately $2.2 million for non-pecuniary losses. Of that $2.2 million, around $1.97 million was the price of the 19 odd years of liberty he lost. 4 As can immediately be observed, that figure was arrived at by multiplying the Guideline annual figure of $100,000 by the number of years and months he wrongly spent in jail. The remaining $225,000 was also based on the $100,000 benchmark in the Guidelines.

7 On three occasions in the course of his second report, however, Mr Hansen expressly recorded his recommendation that Cabinet consider inflation adjusting that $2.2 million, non-pecuniary loss, figure. He said that not adjusting the sum meant that Mr Pora would be twice prejudiced by the (very considerable) length of time he had wrongly spent in custody.

8 The Minister accepted Mr Hansen's core findings but not his recommendation to inflation adjust. She made recommendations to Cabinet accordingly. Cabinet agreed that Mr Pora should be compensated in accordance with the Minister's recommendations.

9 Mr Pora accepted the compensation then offered on the express basis that, although he agreed to take no civil proceedings against the Crown in relation to his convictions and imprisonment, he would be permitted to seek the Court's

intervention by way of judicial review on the inflation adjustment issue. So it is on that basis that the matter has now come before me

10 Before turning to consider the issues raised by the application for review, however, it is useful to say a little more about the historical context relating to the payment of compensation to those who have been wrongly convicted and imprisoned and also, more specifically, about Mr Pora's case.

Compensation for wrongful imprisonment: a short history

11 In New Zealand's legal past there has been no more than a handful of cases in which compensation has been paid to a person wrongfully imprisoned due to a miscarriage of justice. That is doubtless a by-product of the historical difficulty faced by one who sought to establish that such a miscarriage had occurred. Although there has always been the possibility of a convicted person persuading the Governor-General (earlier, the Governor) to exercise the Royal prerogative of mercy and bestow a free pardon, historically, a free pardon did not have the effect of erasing the conviction itself. 5 A guilty verdict and a conviction could only be overturned through the appeal process. And until 1945, at least, criminal appeal rights were restricted.

12 First, an appeal on a point of law by way of case stated could be brought. 6 Absent any identified legal error an appeal would fail, even where the trial judge had gone on record as saying that there had been improper and irremediable influence brought to bear upon the jury. 7

13 Secondly, there was the ability to seek a retrial on the grounds that the jury verdict was against the weight of evidence. 8 But from the outset, the Court of Appeal emphasised that great deference should be accorded to the jury's view of the facts. 9 Nor was the Court able to consider any factual matters that had not been in evidence at the trial.

14 And exceptionally, where the Governor had received a petition for the exercise of the prerogative of mercy, he could, instead of remitting or commuting the sentence, and following “such inquiry as he thinks proper”, order a retrial if he entertained doubt as to whether the person ought to have been convicted. 10 While this process permitted the Court to consider factual matters not raised at the first trial, it was initially thought that such a referral could only be made while the petitioner remained incarcerated.

15 The almost insurmountable difficulty that this state of affairs presented for those who believed they had been wrongly convicted is no better demonstrated than by the case of James Meikle. 11 Mr Meikle was convicted of sheep stealing and served five years of his seven year sentence. His subsequent attempts to clear his name and to receive compensation lasted for nearly 20 years and included:

• (a) a successful private prosecution of the principal Crown witness for perjury;

• (b) numerous petitions to Parliament and debates in the House;

• (c) a Commission of Inquiry; and

• (d) the eventual passage of the Meikle Acquittal Act 1908.

16 Mr Meikle succeeded in securing two payments of compensation of £500 (in 1897) and £2500 (in 1910). But he remained profoundly disgruntled.

17 In 1945, Parliament enacted the Criminal Appeal Act, which permitted the Court of Appeal to allow appeals if it was of the view that, on any ground, a miscarriage of justice had occurred. 12 The same Act contained a new provision empowering the Governor-General, in the context of any application for a pardon, to refer an applicant's conviction or sentence to the Court of Appeal, or to seek the Court of Appeal's assistance on any point arising in a particular case. 13

18 Recognition of the fact that, for all the checks and balances of the common law criminal process, miscarriages did occur began to take hold internationally around this time. In his 1955 book The Proof of Guilt: a Study of the English Criminal Trial Glanville Williams noted the emerging American jurisprudence (led by Mr Edwin M Borchard) 14 which challenged the prevailing belief that wrongful convictions did not occur or, if they did, that any detriment was outweighed by the countervailing benefits of the jury system. 15 Williams referred in some detail to the notorious misidentification cases (in the early part of the 20th century) involving Adolf Beck (in England) and Oscar Slater (in Scotland), the fact of whose wrongful convictions had (eventually) been accepted. Then, he said: 16

It may be mentioned that Slater, like Beck, was “compensated” in money terms for the ruin of his life; he was given an ex gratia payment of £6,000, which obviously bore, and could bear, no relation to what he had suffered. Although the fact that compensation was paid is satisfactory, it is a...