Commission chairman Colin Carruthers KC: "The actions of police officers in this case have undermined the safety of the applicant’s convictions." Photo / Supplied
Commission chairman Colin Carruthers KC: "The actions of police officers in this case have undermined the safety of the applicant’s convictions." Photo / Supplied
An independent commission is alleging police misconduct in the case of a man convicted of two indecency charges in 2015.
An investigation into the case found information about the defendant’s identification was “intentionally removed” from a police report intended for the prosecution, and therefore the court.
The Criminal Cases Review Commission (CCRC), which was set up four years ago to investigate possible miscarriages of justice, has now referred the man’s convictions back to the High Court, citing “compelling evidence”.
It is the third case, out of more than 400 brought to the CCRC’s attention, to be sent back to an appeal court since the commission started work in July 2020.
The case involves a man who was accused of two separate indecent acts, at different times, but involving the same victim.
The CCRC did not name him as it said he would seek name suppression when the matter came back to court.
The sole issue at his 2015 trial was the evidence about his identity, and a miscarriage of justice had occurred, said the CCRC, also known as Te Kāhui Tātari Ture.
“The [CCRC] investigation has concluded that, following the first formal identification procedure, the victim was given an indication as to who the suspect was,” Chief Commissioner Colin Carruthers KC said on Wednesday.
“The commission considers this tainted the second formal identification procedure, and the evidence should not have been admitted at trial.”
Carruthers said a report from a police officer to the prosecutor included the information that the victim had been given an indication who the suspect was during the first photo board identification process.
This note was removed from the report that went to the prosecutor and, because of that, the information was not brought to the attention of the court.
“The commission ... considers that the actions of police officers in this case have undermined the safety of the applicant’s convictions,” Carruthers said.
The commission concluded that a miscarriage of justice had occurred and said it was in the interests of justice to refer the matter back to the High Court.
Detective Superintendent David Lynch said police had been liaising with the CCRC about the case for some time and acknowledged the referral back to the court.
They had received material from the commission and were considering “any next steps”, including a possible referral to the Independent Police Conduct Authority.
“While the case is to be considered by the High Court it is not appropriate to comment further at this time,” Lynch said.
The first case the CCRC sent back to an appeal court was that of a “Mr G” who was sentenced to 11 months in jail for offences including assaulting a female and driving with excess breath alcohol in 2001.
Mr G, who arrived in New Zealand as a refugee in 1993, was only 15 years old when he was sent to prison.
Sentencing laws at the time prohibited the imprisonment of anyone under the age of 16.
Mikaere Oketopa, formerly Michael October, was sentenced to life imprisonment in October 1995 for the rape and murder of 22-year-old Anne-Maree Ellens. His case has been referred back to the Court of Appeal after new evidence emerged.
The second case to be sent back to the courts was that of Michael October, now known as Mikaere Oketopa, who was convicted of the 1994 rape and murder of Anne-Maree Ellens.
In that case, the CCRC questioned the integrity of the police investigation and said that Oketopa’s confessions were likely to be false.
Both Mr G and Oketopa’s cases are still before the courts.
The CCRC has received 421 applications to have cases reviewed since it began work in 2020. This is an average of 10 a month.
About 160 cases have not been taken up, usually because they are deemed not to be in the interests of justice, or other appeal processes are still available.
Nearly 190 cases of the total applications have involved convictions for sexual offending, but 67 were for murder or manslaughter.
Ric Stevens spent many years working for the former New Zealand Press Association news agency, including as a political reporter at Parliament, before holding senior positions at various daily newspapers. He joined NZME’s Open Justice team in 2022 and is based in Hawke’s Bay. His writing in the crime and justice sphere is informed by four years of front-line experience as a probation officer.
