Little AndrewCRIMINAL CASES REVIEW COMMISSION BILLFirst ReadingHon ANDREW LITTLE (Minister of Justice): I move That the Criminal Cases Review Commission Bill be now read a first time. I nominate the Justice Committee to consider this bill.Miscarriages of justice unjustly deprive individuals of their freedom and undermine public confidence in the justice system. It's therefore vital that we have robust mechanisms to identify and remedy miscarriages of justice where they occur. This bill advances those objectives by establishing a criminal cases review commission.Currently a person who believes they've suffered a miscarriage of justice may apply to the Governor-General for the exercise of the royal prerogative of mercy. By convention the Governor-General acts on the formal advice of the Minister of Justice. Work on the prerogative of mercy applications is undertaken by lawyers in the Ministry of Justice's office of legal counsel and assistance is sought where required from an independent adviser such as Queen's Counsel or a retired judge.This process has in many ways served us well. However for some time experts and members of the wider public have had concerns about our systems for identifying and remedying miscarriages of justice. The concerns expressed have principally related to the independence timeliness quality and fairness of investigations into miscarriages of justice under the status quo. Further as Sir Thomas Thorp highlighted more than a decade ago our current system does not adequately encourage applications from Māori or Pacific peoples. As we know Māori and Pacific peoples are imprisoned disproportionately making up some 60 percent of our current prison population yet the rates of applications for the royal prerogative of mercy from these populations is estimated at somewhere between 11 and 16 percent.Other jurisdictions have grappled with similar concerns and have in response established criminal cases review commissions. The experience of these overseas bodies while not without difficulty suggests that establishing a criminal cases review commission may significantly enhance the process of identifying possible miscarriages of justice.The Criminal Cases Review Commission will be a new independent Crown entity with between three and seven commissioners including a chief and a deputy chief commissioner. The independent Crown entity model will enable the Criminal Cases Review Commission to operate within a coherent well-established framework that is sufficiently independent of Ministers the courts and relevant State sector organisations. At least one-third of the commissioners will be legally qualified and at least two-thirds will have a background in the criminal justice system. The appointment of commissioners will also take into consideration the desirability of diversity and an understanding of Te Ao Māori in particular. This membership composition will enable the commission to have the necessary mix of skills and experience for its decision making and governance while avoiding the risk of ongoing expansion of membership beyond what may be necessary.The primary function of the commission will be to review convictions and sentences and decide whether to refer them to the Court of Appeal. The courts remain the body that determine a person's guilt or innocence. The way this operates is that the judiciary decides guilt and sentences accordingly and it must be the judiciary that ultimately undoes the decision if it is found to be erroneous. The commission will be able to receive applications from any living convicted person or their representative. The commission is also able where it is in the public interest to make initial inquiries on its own initiative though it must seek the consent of the individual concerned to proceed to a full investigation. Investigations will be thorough and will involve for example examining large quantities of relevant files interviewing applicants or witnesses and very commonly forensic testing or instruction of experts. This role will help to remove some of the burden that currently rests on applicants. If in investigating a case the commission finds evidence of a matter that may be causing or contributing to miscarriages of justice it will be able to launch a thematic inquiry into these issues. One issue commonly raised currently is the use of jailhouse witnesses in relation to purported confession evidence and that may be something that is the subject of a thematic inquiry at some point in the future. The result of the commission's work will be a report to the Minister of Justice who will be required to present that report to Parliament as soon as practicable after receiving it. The intent of this power is to add a quasi-preventive function to the commission's work. The commission also has a duty to promote public awareness of its functions. I see this as an important element in signalling to the commission the need to engage with potential applicants especially Māori and Pacific peoples in order to encourage meritorious applications. Arguably the most important and complex aspect of the design of the commission is the test for referring a case back to the courts for a fresh appeal. Clause 17 of the bill provides that the commission can refer a conviction or a sentence to the Court of Appeal if it considers referral is in the interests of justice. In deciding whether to refer the commission must have regard to a number of points: firstly whether the convicted person has already exercised their rights to appeal against conviction or sentence; secondly the extent to which the application relates to argument evidence information or a question of law previously raised or dealt with in the proceedings relating to the conviction or sentence; thirdly the prospects of the court allowing the appeal; and finally any other matter that the commission might consider relevant. The experts we've consulted in developing the test have unsurprisingly had a variety of views on this construction. Many believe the test strikes the right balance providing the necessary flexibility while clearly signalling the relevant considerations involved in making a referral. However others were concerned that the test is overly prescriptive and that the use of factors as listed may be interpreted in a manner that has a chilling effect on referrals. In my view the test strikes an appropriate balance. It has been specifically designed for the New Zealand context. In the interests of justice it provides a broad discretion to refer while the factors that the commission must have regard to acknowledge important constitutional principles. The existence or non-existence of one factor is not in itself determinative of the application. I anticipate—and I welcome—comment on this aspect of the bill and I will gladly consider any improvements that can be made so that the commission may effectively carry out its core function.Similarly I expect the commission's information-gathering powers will be of particular interest to submitters and to the committee in its deliberations. The bill makes it clear that consent and cooperation should always be the preferred means of seeking information but allows the commission to compel information from public entities and private individuals where necessary. Where a person has failed to provide information the bill includes a civil enforcement process in the District Court. The drafting of the information-gathering powers attempts to strike a careful balance between the need for the commission to access all relevant information and to safeguard the rights and freedoms of individuals and relevant protections for privilege and confidentiality.I note in particular that the bill expressly provides that the commission cannot access information that is protected by existing privileges or confidentiality. This is an important difference from commissions overseas which are able to access information even if it is privileged. The scope of the information-gathering powers including whether or not to allow the commission to access privileged information will be important for the committee to consider and I look forward to their conclusions in this respect.Another important aspect of the bill is how it interacts with the royal prerogative of mercy. The effect of the bill is that the Governor-General will no longer play a role in referring cases back to the courts. However as the royal prerogative of mercy remains in force the bill recognises that the Governor-General will continue to have the power to for example grant a free pardon. The bill provides that where the exercise of the royal prerogative of mercy is being considered the Minister of Justice as the Governor-General's adviser may request the commission's opinion on any matter relevant to the case.This bill meets an important Government commitment responds to long-held concerns from a variety of New Zealanders and will dramatically improve our system for responding to miscarriages of justice. It will create an important safety valve that is presently missing from our system. In closing I note the finding of the United Kingdom's House of Commons Justice Committee in assessing the work of the Criminal Cases Review Commission there that If a bolder approach leads to five more failed appeals but one additional miscarriage being corrected then that is of clear benefit." I agree with that sentiment and I believe that this bill will enable us to achieve such a benefit. I commend this bill to the House."