Demand of Cabinet plainly wrong

There is neither logic nor justice in the government compensation regime, writes Colin Withnall QC.

Joss Miller's opinion piece (ODT, 11.8.16) responding to Chris Trotter's opinion piece (ODT, 5.8.16) not only contains some startling assertions but misses the boat altogether.

He begins his argument by distinguishing the cases of Arthur Allan Thomas and Teina Pora by saying that in those cases, ``subsequent evidence was adduced resulting in their convictions being quashed, and as a consequence, they were entitled to compensation based on the fact they were then deemed to be innocent''.

Arthur Allan Thomas' conviction was not quashed by any judicial body or court. He was granted a pardon at the instigation of the Muldoon cabinet, after the first trial found him guilty and a retrial was ordered at which he was also found guilty. Mr Trotter correctly alludes to the role of Mr Muldoon in his article.

He had no entitlement to compensation - nobody has ever had any entitlement to compensation under New Zealand law - but was deemed ``never to have committed'' the offences under section 407 of the Crimes Act 1961. His compensation was paid in 1980 - 18 years before the guidelines now in use were adopted by the then Labour cabinet. Those guidelines do not confer any right to compensation; it is all at Cabinet's discretion and any payment is ex gratia.

Despite Mr Thomas being deemed by law ``never to have committed'' the offences, these guidelines would still have required him to prove his innocence as a pre-condition to any discretionary compensation. What were or are the probabilities of him doing that?

Teina Pora was also convicted twice by a jury, after his first conviction was appealed and a retrial ordered. The Privy Council did not order a retrial after the Crown submitted that a retrial would not be in the public interest because he had already spent 20 years in prison. He was therefore eligible for consideration for compensation under the guidelines, but had no entitlement to compensation. He was not ``deemed'' to be innocent as Mr Miller asserts. He was required to prove his innocence; former High Court Judge Rodney Hansen found that he had.

Mr Miller correctly points out that in both cases, the result was achieved because new evidence came to light. David Bain's convictions were quashed by the Privy Council because new evidence not heard by the trial jury satisfied it that there had been a ``substantial miscarriage of justice''. The distinction in this respect between this case and those of Messrs Thomas and Pora that Mr Miller asserts is non-existent.

So is his claim that there was no miscarriage of justice. The Privy Council held there was, and for that reason quashed his conviction. The premise on which he bases that appears to be the fact he was acquitted by the jury (in short order I add - six hours after a three-month trial) at his retrial. Because he had been acquitted by a jury on a retrial, Mr Bain was not eligible for consideration for compensation under the guidelines. His application could only be considered under the discretion Cabinet reserves to itself in ``extraordinary circumstances'', whatever that means. I pause to venture that if spending 13 years in prison as a result of a miscarriage of justice, followed by a retrial lasting three months and a verdict of ``not guilty'' after a few short hours is not ``extraordinary'' and thereby ``ordinary'', there is little to be proud of in our criminal justice system.

The logic of this completely escapes me. Why is an acquittal by a jury that has heard all the evidence, the arguments of counsel and the summing up of the trial judge of an inferior quality to an acquittal without retrial by an appellate court? It is well known appellate courts may decline to order a retrial for a variety of reasons, such as the length of imprisonment already served. If anything, logically, it is more compelling than quashing without an order for retrial.

But the most extraordinary, illogical and plainly wrong of all is the requirement of Cabinet that the applicant prove his or her innocence. It is a cornerstone of the common law that everyone is presumed to be innocent until the contrary is proved beyond a reasonable doubt. This has been a fundamental principle of the law for centuries. Whether Cabinet was calm and rational is irrelevant. What matters is whether it was lawful and just. Cabinet failed on both points.

- Colin Withnall QC is a Dunedin lawyer who was part of David Bain's defence team for seven years after Mr Bain's first failed appeal to the Privy Council.