Editorial: Safeguard against injustice

Innocent until proven guilty, beyond reasonable doubt and "it is better that 10 guilty persons escape than one innocent suffer" are all well-known legal aphorisms that make the same fundamental point. The system should do everything in its power to get it right and, if anything, the benefit of the doubt should go to the accused.

Despite a handful of public controversies over miscarriages of justice, the general verdict on the legal system in New Zealand has always been that it works pretty well. However, a detailed investigation by retired High Court judge Sir Thomas Thorp, which was reported in the Weekend Herald, gives reason to question whether this attitude might be a little too complacent for comfort. Sir Thomas points out that the number of people complaining about miscarriages in the past decade has increased from two or three a year to 10 or more, and he estimates that as many as 20 people could be wrongly held behind bars.

When this estimate is measured against the prison muster - which at times reaches 7000 - it may seem insignificant. And yet there is real cause for disquiet. Sir Thomas compared the New Zealand experience with systems overseas and studied 53 claims of miscarriage in this country between 1995 and 2000. Of these, 16 per cent had no merit but he considered the rest had potential to investigate or clearly required investigation.

Adding to the sense of disquiet is that few of those who lodged complaints were Maori or Pacific Islanders, even though these people comprised 60 per cent of the prison population at the time of the study. It would seem that for every prisoner protesting innocence who captures the headlines, there are many who go quietly for a number of reasons, including, in the case of Polynesians, a lack of confidence in the system.

The solution, according to Sir Thomas, is to follow the English and Scottish examples and set up an independent authority to identify miscarriages of justice and to actively notify prisoners of their rights. Critics will question whether such a body would be taking over some of the functions of the Court of Appeal but its role would be different. Sir Thomas argues that in New Zealand, as in Britain, the Court of Appeal is unsuited and reluctant to engage in the investigation and resolution of factual controversy. He points out that during the Ellis appeals the court, on more than one occasion, said the issues that Peter Ellis wanted to address were more suitable to be heard by a commission of inquiry.

If it is impossible for the appeal courts to deal with such issues, then having a separate authority to investigate may be the best solution. At least it would have the virtue of addressing claims of miscarriage systematically and everyone would get a fair hearing.

A second criticism is likely to be that the process will just encourage more unsustainable claims of innocence, as it did when introduced in Britain. No doubt this is right, but Sir Thomas has anticipated the argument by pointing out that the British experience also exposed a rising number of unsafe convictions.

Sir Thomas' report gives good grounds to believe that miscarriages in New Zealand are much more common that most people supposed, even though they are still a minute proportion of convictions. His solution is worthy of serious consideration if the system is to achieve its goal of getting it right beyond reasonable doubt.