So why is the Privy Council still ordering release of the wrongfully convicted in New Zealand?
Last week, the Privy Council ordered conviction quashed for Teina Pora after 21 years in a New Zealand prison for rape and murder. If the Crown decides to retry him, it will be the third time. Pora is one of a never ending list of convictions overturned by the Privy Council, highlighting a notable failure with the highest appellate court by right in New Zealand, the Court of Appeal.
Mark Lundy, another whose conviction was overturned by the Privy Council in 2013, is currently being retried in the Wellington High Court.
In January 2002, the Privy Council ruled in Taito v R  UKPC 1 that the New Zealand Court of Appeal was engaged in systemic abuses of due process. Lead barrister in that successful appeal, Dr Tony Ellis, estimated over 1,500 criminal appeals were improperly dismissed over the previous decade. His opposing counsel, Simon France, now sits as a High Court Judge. Simon’s wife is President of the New Zealand Court of Appeal.
In 2005, retired High Court Justice Sir Thomas Thorp (pictured) wrote a book ‘Miscarriages of Justice” in which he concluded 39% of the serious crime convictions he had studied in retirement may have been wrongly convicted. Interestingly, he thought David Bain, a conviction overturned by the Privy Council in 2007, was not one of the wrongfully convicted.
Bain’s retrial in 2009 ended with an acquittal. Retired Canadian Supreme Court Justice Ian Binnie was later hired by the NZ government to analyse the case. After he agreed with Bain’s defence, he was publicly chastised by NZ Justice Minister Judith Collins. Binnie retorted, “It seems the Government is looking for somebody to give them the opinion they want”. Minister Collins refused to give a copy of Binnie’s report to Bain’s legal team.
In New Zealand, being on the wrong side of the law is less likely to get you into serious trouble than being on the wrong side of the State.
That this serious societal risk is not more widely recognised comes down to the Kiwi psyche. Kiwis are very trusting and decent people. This, many believe, allows the most corrupt in NZ society to rise to the top unquestioned. Remote geographic location also assists. Two years ago, every judge in New Zealand opposed proposed legislation which would require judges to disclose their pecuniary interests with the intent of avoiding judicial conflicts of interest. All judges agreed it was conceptually good law, just unnecessary in New Zealand. Where else in the world do you get every judge in agreement, let alone actively opposing admittedly sound conceptual law virtually unnoticed?
The only person making submissions in favour of the Judges Pecuniary Interests Bill was former NZ Supreme Court Justice Bill Wilson QC. Ironically, Wilson was forced to resign in 2010 after kiwisfirst exposed his undisclosed financial conflict of interest with appearing counsel. Wilson said he would write a book blowing the lid off judicial conflicts but changed his mind after the Crown gave him a generous pension not to do so.
Then there is the lack of an independent and intrepid press. Former NZ Herald Editor Tony Stickley told kiwisfirst in 2007 “even when we are right (in exposing the reigning class) we end up with a $100,000 legal bill”. Reporting on a poor Maori teenager putting their infant in a clothes dryer and celebrity sightings at the beach achieve a healthier media bottom line.
Cracks are developing in the fictional veneer of New Zealand justice. Former New Zealand Supreme Court Justice Bill Wilson QC said last week, “I believe the present system is not working. And similar organisations overseas and similar countries, particularly England, do work.”
Whoa! How does New Zealand ignore all this evidence and expert commentary? Give us a strand of number 8 wire and we will find a way. (off shore readers may not realise that No 8 wire is the metaphorical fix for all physical obstacles in New Zealand).