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New Zealand Yearbook of New Zealand Jurisprudence |
Last Updated: 11 April 2015
Bring Them Justice'
BY CRAIG COXHEAD*
Compensating the wrongly convicted — the Mokomoko case
(Tangohia mai te taura kaki kia waiata au i taku Waiata)
Kaore te takiri e tute nei te moenga
Kei te hori te tangata
tenei au kei te
rawake
He pono te ki kei te awhi au
i
te moenga
Koia ra te tangata mate.
Kaua au ki te uira
Ka whakarewha te titiro ki
te
hukinga mate i Hamukere
E wareware ano te ekenga i te
kaipuke
He ai mumura
tonu te paenga mai o te whakama
Me tiki ki tawhiti hei homai
te mekameka
Ko te rerenga
o te ra ko te Kawana kei
Oropi
Mana e ki mai me tau au ke te
tauari
Hei tutaki e mo te kuaha o te pouaka.
(Take the rope from my neck that I may sing my song)
Violent shaking will not rouse my sleep They treat me like a common thief
It is true that I embrace eternal sleep For that is the lot of a man condemned to die.
Shielded from the harsh light With narrow eyes I reflect on the retribution taken at Hamukere
Remember how I was taken on board
ship (chained)
The
memory of it burns me with shame
Bring me justice from distant lands to break my shackles
Where
the sun sets is a government in Europe
It is for them to say that I
must hang They shut me in my coffin box'
Craig Coxhead (B.Soc.Sc, LLB (Hons), LLM Waikato) is of the tribal groups of Ngati Makino, Ngati Pikiao, Ngati Awa and Ngati Maru. Craig is a lecturer at the School of Law, University of Waikato.
The title is an adaptation from the words of the waiata (song) composed by Mokomoko while he stood on the scaffold just before he was hanged. The title seeks justice for the Mokomoko Whanau (Family) and can be seen as a plea from Mokomoko himself asking the Government to "Bring them (my Whanau) Justice". I am indebted to Tuiringa Mokomoko for giving me access to material for this article.
Within the last five years the issue of "compensating the wrongly convicted"' has had much publicity especially in light of changing Government policy,4a planned review of the current policy,' a Law Commission (Commission) report and a number of cases°.
While there are cases, which have attracted much public,' and Government attention there is one claim which goes unheard. It is the case of a person who was not only wrongly convicted but also executed. He was given a posthumous pardon in 1992. His whanau still seek compensation for his wrongful execution. This is the case of Mokomoko.
The purpose of this article is to assess the Mokomoko whanau's claim for compensation in light of the Government's current policies for compensating the wrongly convicted. Within this article I shall firstly outline the Mokomoko story and how the Mokomoko whanau are now pursuing the issue of compensation for
This article adopts the phrase adopted by the Law Commission report Compensating the Wrongly Convicted Report 49, September 1998.
The current guidelines were implemented on a "trial basis for a period of three years, after which the Minister of Justice shall review their operation and recommend to Cabinet any alterations that may be considered desirable", Cabinet Strategy Committee papers STR (98) M 39/6, with the current criteria being reviewed before December 2001, "Dougherty seeks anonymity" Bay of Plenty Times, 12 July 2001
the wrongful conviction and execution of their tipuna.8 I will then consider the Government's past and present policy on compensating those who have been wrongly convicted. I will conclude with an assessment as to whether the current policy for compensating the wrongly convicted assists the Mokomoko whanau in their pursuit for justice.
Mokomoko
Mokomoko was a Whakatohea Chief who was tried and found guilty for the murder of the Missionary Carl Sylvius Volkner. On 4 April 1866 he was executed along with three others, Heremita Kuhupaea, Hakaraia to Rahui and Penetito.
Mokomoko lived in the mid 1800s in the Whakatohea area.' He was a successful farmer and trader who over years had, along with many other Whakatohea people, formed good relations with settlers moving into the eastern Bay of Plenty.") Mokomoko was described as:
Refers to ancestor.
...a closely tattooed man, intelligent, able to read and write and with knowledge of the scriptures. He was baptised as an Anglican on May 1866 — the day before he was executed. He was a Chief who had the responsibility to protect the Whakatohea people when the army came in 1865 and would have led the resistance. He was an experienced fighting man, a leader and a warrior."
Howe noted Charles Barker's, a CMS missionary, description of Mokomoko when Barker was chaplain at the Stockade in Auckland, now Mount Eden prison, where Mokomoko was held:
Mokomoko is a middle-aged man and intelligent. Can read and write and knows a good deal of Scripture Truth. Acknowledges his apostasy but not his guilt of murder.'
Mokomoko along with many Whakatohea people supported the missionary work of Volkner. This support was reflected in the establishment of a new church in 1864.'3 While it can be said that there were good relations between Volkner and the Whakatohea people a number of events occurred between 1864 and 1865 which affected this relationship: the killing of the Whakatohea Chief, Te Aporotanga; the involvement of Whakatohea in the Waikato wars which Volkner opposed. Further, a Roman Catholic Priest, Father Gravel, had earned a great deal of respect from the Whakatohea people culminating in a number of Whakatohea people being baptised Catholic. Volkner complained to the Governor about Father Gravel, which eventuated in Father Gravel being sent to Austra-lia.'4 Increased tension in the relationship was due to Whakatohea being aware that Volkner was supplying information to the Governor about their involvement in the wars. A further event was when a large Pai Marire party lead by Kereopa's was in the Whakatohea rohe to introduce the people to Pai Marie as well as, it is
10 Ratima T, Mokomoko - the untold story <http://www.hrc.co.nz/tirohianou/stories/
mokomoko.html>
Were, K Mokomoko — Our Tipuna (Research Report, unpublished) 3.
12 Howe, E Bring me Justice (Auckland: Anglican Provincial Bicultural Education
Unit, 1991) 18.
Were, K Mokomoko — Our Tipuna (Research Report, unpublished) 4.
14 Ibid.
15 Kereopa was of Ngati Rangiwewehi and was influential in the hanging of Volkner.
claimed, for the specific purpose to execute Volkner.16 It is within this context that events lead to the hanging of Volkner on 2 March 1865.
It is important to recognise that the hanging of Volkner is seen as the commencement of the confiscation of Whakatohea lands. Following the hanging of Volkner Sir George Grey, Governor at the time, issued a proclamation on 2 September 1865 for the arrest of the murderers of Volkner. The killing of Volkner gave the Government reason to invade the area and confiscate some 173,000 acres of land, or as Howe wrote:
Following the death of Volkner, British troops were despatched to Opotiki under the leadership of Major McDonnell. Settler attitude is graphically shown in Grey's "Proclamation of peace," which in reality was a threat to confiscate land, and the ready use of martial law."
Following the dispatch of troops into the Opotiki area four men were arrested for the murder of Volkner. They were Mokomoko, Heremita Kuhupaea, Hakaraia to Rahui, Paora Taia and Penetito. These people were condemned at a court martial, and taken to the Stockade in Auckland, where on March 1866 at a civil trial, all except Paora were found guilty, convicted and given the death sentence, and executed on May 17 1866.'8
Following Mokomoko's execution he was buried at the Stockade and in 1988, after initially being refused by Government, his whanau obtained approval to exhume° his body from Mount Eden and return him to Waiaua."
18 Ibid, 18.
Acquittal or Pardon?
Having returned their tipuna to Waiaua" the Mokomoko whanau sought statutory recognition of Mokomoko's innocence. Whakatohea oral tradition is that Mokomoko was innocent." Evidence and conduct of the trial show that Mokomoko was innocent.
It is not the purpose of this paper to traverse the reasons in support of providing evidence that Mokomoko was innocent, however details of reasons are outlined in a letter of Professor Richard Boast to the Rt. Hon GWR Palmer dated 17 July 1990 and reproduced in full in Howe, E Bring me Justice." Some of the reasons, in summary, to support Mokomoko's innocence are that:
Procedures at Trial were unjust;
One solicitor acted for all four accused;
There was only a one day hearing;
No evidence was called on behalf of defence;
Accused did not give evidence until at sentencing as to why they should not be hanged;
There was only brief cross examination; Crown's case was inconsistent;
Crown witness, Rev. Thomas Samuel Grace, stated nothing regarding Mokomoko;
Another Crown witness, Wiremu Te Paki, stated Mokomoko was not to be seen when the hanging of Volkner took place;
George Graham had written a letter to the Colonial Secretary stating Mokomoko was not present at the execution and he trusted that Mokomoko's life would be spared;
Another Crown witness, Wepiha, an enemy of Mokomoko and also instrumental in the murder gave evidence against
21 A place on the east coast of the north island of New Zealand.
23 'bid, 23.
Mokomoko, which was not fully tested under cross-examination; and
Heremita and Hakaraia acknowledged that they had played a part in the execution of Volkner and agreed with Mokomoko's accounts of events and the fact that he played no part in the execution.
Most poignant is the fact that Mokomoko had protested his innocence till his death? Howe quoting from the letter of Professor Richard Boast noted:
And shortly before his death Mokomoko said: "Hei konei ra, pakeha ma, tenei ahau e mate hara kore! Kahore i tika taku matenga!" (Farewell, you pakeha, I die without a crime! It is not right that I should die!)"
In seeking to clear the name of their tipuna the Mokomoko whanau originally sought an acquittal? Why an acquittal? An acquittal pronounces a person innocent. A pardon on the other hand may not necessarily denote innocence."
While I do not intend to comment at length about the law of pardons a brief narration I think is necessary to understand why the family originally sought an acquittal and not a pardon.
The effect of a pardon is provided for in section 407 of the Crimes Act 1961, which simply states that a person granted a pardon "shall be deemed never to have committed that offence". The section quite clearly does not provide that a
person granted a pardon is considered innocent." In his article on the prerogative of pardon Hodge was not totally convinced that a pardon denoted innocence and concluded that:
Finally, it must be said that the form of recent New Zealand pardons is equivocal. To decree for example that "there is real doubt ... [that a case] was proved beyond reasonable doubt" is equivocation squared, two quasi-negatives, not making a positive. Given, the dual source and purpose of the pardon power: add the mystery of the deeming clause, multiply by the double use of the word doubt, and the result is confusion compounded.29
The effect of a pardon was made somewhat clearer in Re Royal Commission on Thomas case," where the Court of Appeal, while not embarking on a full discussion of the law of pardons, concluded the effect of a pardon is that it wipes out the criminality of the acts not the acts themselves, giving a complete discharge from criminal liability but no necessary inference as to factual innocence. The Court stopped short of stating that a pardon equates to innocence, but did emphasise that effect of section 407 is that:
[w]here a convicted person has been granted a free pardon in New Zealand, it can no longer be said that the pardon may imply that the Executive accepts that he committed the offence but is forgiving him."
The Australian case of R v Cosgrove32 held that a pardon is not the equivalent of an acquittal and "contains no notion that the [person] to whom the pardon is extended never did in fact commit the crime".
Given the Mokomoko whanau's clear attitude towards the innocence of their tipuna a pardon would be inadequate as its statutory phraseology, could be seen as an act of clemency towards a guilty person and would not recognise Mokomoko as being innocent.
29 Hodge, W C, "The Prerogative of Pardon" in
NZLJ, 1980, 163.
'° [1982] 1 NZLR 270.
31 Re: Royal
Commission on Thomas Case [1982] 1 NZLR 252.
32 [1948] TASStRp 1; [1948] TAS
S.R. 99.
After years of lobbying the Government for an acquittal and being refused," in June 1992 the Mokomoko whanau were informed that the Governor General would be granting a pardon to Mokomoko.
In reading the pardon granted to Mokomoko the statutory phraseology adopted by the Crown makes no reference or inference towards Mokomoko being innocent. The pardon reads that Mokomoko was convicted along with three others who have been granted full pardons by virtue of s 11 of the Te Runanganui o Ngati Awa Act 1988 and it is therefore just and expedient that a pardon should be granted to Mokomoko. The essential parts of the Mokomoko pardon read as follows:
And whereas section 11 of the Te Runanga o Ngati Awa Act 1988 restores the character, mana and reputation of the persons of Ngati Awa descent who were arrested, tried and labeled as rebels in or about 1865 and grants to them a full pardon in respect of all matters arising out of the land wars of 1865:
And whereas it appears that one of the incidents of section 11 of the Runanga o Ngati Awa Act 1988 is to pardon the three persons convicted with Mokomoko of the murder of Carl Sylvius Volkner:
And whereas it appears to me just and expedient that a pardon should also be granted to Mokomoko:
Now therefore I, Catherine Anne Tizard, Governor-General of New Zealand, acting upon the advice of the Minister of Justice, do hereby in the name and on behalf of Her Majesty, grant to the said Mokomoko a free pardon in respect of the said crime.
Mokomoko's pardon therefore reads that he was given a pardon because three others were pardoned rather than because he was innocent. This is in spite of the evidence, which surely suggests that Mokomoko was innocent.
Having secured a pardon the next obvious step was to consider compensation. The Mokomoko whanau have made a number of attempts through lobbying Ministers, amending their Waitangi Tribunal claim" as well as exploring other legal avenues in order to secure compensation. What then are the chances of the Mokomoko whanau obtaining compensation under the Government's current cri
teria for compensating the wrongly convicted? Compensation For The Wrongly Convicted
Prior to 1997, New Zealand like many other countries lacked any clear formal processes for evaluating compensation for persons wrongly convicted and imprisoned." Compensation was, in the very limited number of cases where the Crown made payments, on an ex gratia basis." Ex gratia payments had been made by the Crown where persons had been pardoned or whose conviction had been quashed following a referral under section 406 of the Crimes Act 1961.
In terms of pardons there are very few statistics. Since 1995 when the Ministry of Justice was established, records show there have been in excess of 22 applications assessed and only four pardons have been granted.37 In terms of who has been paid compensation by the Crown due to wrongful conviction there is less statistical information available. The Ministry of Justice advised of three incidents in New Zealand's history." The first incident was in a 1905 case where an Act of Parliament"' acquitted Mr. Meikle of sheep stealing after a Commission of Inquiry. Mr Meikle was paid £500 in full and final settlement of all claims. In 1938 the case of R v Griqual involved a man who was sentenced to 12 months imprisonment for indecent assault and acquitted at a retrial and paid £200 for loss of earnings and £300 for Solicitor costs. The third incident the Ministry of Justice referred to involved Arthur Allan Thomas. Thomas was granted a pardon and in 1980 paid $1,087,603.35 (inclusive of costs) in compensation. Other cases of payments for wrongful conviction are the recent cases of David Dougherty who was paid $868,728.00 and Mr M who was paid $570,000.00.4°
In November 1997 the Government of New Zealand adopted an interim policy for compensation or ex gratia payments for persons wrongly convicted and im
39 The Meikle Acquittal Act
1908
40 Refer to footnote 6 for further details of David Dougherty
and Mr M.
prisoned.4' The adoption of an interim policy pending the release of the Commission's report42 and assessing of policy was due to a number of factors.
Firstly New Zealand's policy of paying compensation on an ex gratia basis to those who have been wrongly convicted and imprisoned had been criticised.
The current practice in New Zealand and many other countries of only making ex gratia payments where a pardon has been granted or a conviction quashed has been widely criticised".4'
Secondly, the fact that a specific Law Commission report dealing with compensating the wrongly convicted was an indication in itself that issues and concerns needed to be addressed.
Thirdly there was much public concern regarding New Zealand's policy of paying compensation on an ex gratia basis to those who have been wrongly convicted and imprisoned. This public concern was heightened with the prominence of the David Brian Dougherty matter. Dougherty was convicted in the High Court at Auckland on 21 May 1993 of one charge of abduction and one charge of sexual violation by rape. He was sentenced to seven years and nine months imprisonment. Dougherty's appeal against conviction was dismissed by the Court ofAp-peal in 1994, but then in 1996 the Minister of Justice recommended to the Governor General that an application by Dougherty for the exercise of the Royal prerogative of mercy under section 406 of the Crimes Act 1961 be granted after Dougherty's counsel produced three independent expert reports on DNA profiling. The matter was referred back to the Court ofAppeal who quashed Dougherty's conviction and ordered a re-trial. On 17 April 1997 at a re-trial Dougherty was found not guilty. Dougherty then sought compensation that was granted in July 2001. This case brought the issue of compensation for the wrongly convicted to the public and Government attention.
Fourthly, the New Zealand Government, of the time, recognised New Zealand trailed other countries in terms of policy in this area. There have been moves, in Australia, to look at this issue with the Law Reform Commission in Western Australia publishing a working paper entitled Compensation forpersons detained in custody who are ultimately acquitted or pardoned which followed from rec
42 Compensating the Wrongly Convicted, Report 49,
1988.
41 ]bid, vii.
ommendations coming out of the Aboriginal Justice Advisory Committee.45 Since 1988 England has partially replaced the practice of making ex gratia payments with a statutory scheme. All applications for compensation following an alleged miscarriage of justice are considered under two schemes being section 133 of the Criminal Justice Act 198845 and the ex gratia scheme." Further, in Canada Federal-Provincial Guidelines on Compensating for Wrongly Convicted and Imprisoned Persons have been adopted by the Canadian Justice Minister.47 These guidelines provide for compensation to be granted "to those persons who did not commit the crime for which they were convicted"." A number of other countries provide compensation to defendants who have been wrongly imprisoned49 with some going as far as having provision for those wrongly remanded in custody pending tria1.50
A fifth factor that has provided some impetus for the New Zealand Government to adopt criteria for compensating the wrongly convicted is at an international level. Article 14(6) of the International Covenant on Civil and Political Rights51obliges parties to the Covenant to provide compensation to persons where
The
ex gratia scheme under which compensation can be paid to people who have spent
time in custody following a wrongful conviction
or charge that is the result of
some serious default by a non-judicial body or where facts emerge at trial or
appeal that completely
exonerate the accused person.
47 Adopted in
1988.
48 The Law Commission Compensating the Wrongly Convicted,
Report 49,1998, 24.
This article states: "When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him."
there has been a miscarriage ofjustice. While New Zealand ratified the Covenant in 1978 a reservation to Article 14(6) reserved the right to New Zealand to continue to make ex gratia payments to persons who suffer as a result of a miscarriage of justice.52 In 1993 the International Human Rights Committee reported that ex gratia payments, the only provision in New Zealand for granting compensation to the wrongly convicted, did not meet the requirements that a person be compensated according to law. In 1989 New Zealand was asked whether it intended to maintain the reservation and some amount of moral pressure was applied for New Zealand to enact a compensation scheme."
The above factors have led successive New Zealand Governments to address the issue of compensations for the wrongly convicted transpiring in the request for the Commission to undergo research and culminating in changes to Government policy.
Interim Criteria
In November 1997 Cabinet agreed to a set of interim criteria for evaluating claims for compensation or ex gratia payments in respect of persons who are wrongly convicted of criminal offences pending consideration of proposals from the Commission for the establishment of a general compensation regime."
The interim criteria provided that those eligible for compensation or an ex gratia payment were limited to those who received a free pardon under section 407 of the Crimes Act 1961 or whose cases were referred to the Court of Appeal under section 406 of the Crimes Act resulting in either:
(a) the quashing of the relevant conviction with no order for retrial; or
(a) the quashing of the relevant conviction followed by an acquittal at trial.
The criteria also required claimants to prove that a new or newly discovered fact showed conclusively that there had been a miscarriage of justice and that they
31 The Law Commission Compensating the Wrongly Convicted, Report 49,1998, 22.
were innocent on the balance of probabilities. The person also had to be alive at the time an application for compensation was made."
The interim criteria were limited in who was eligible for compensation. The interim criteria did not and was never intended to cover innocent people who have been arrested, detained in custody, and released without charge or held in custody, charged, only for the charge to be withdrawn before their first court appearance. Neither was it intended to cover situations where a person was denied bail and remanded in custody, but acquitted at trial or convicted and imprisoned, but acquitted on appeal."
Law Commission Report
While an interim policy was in place the Commission undertook extensive research into the issue of compensating the wrongly convicted which concluded with its report released in September 1998.
The Commission's primary focus was to determine eligibility for compensation. Following on from establishing criteria for eligibility the Commission then proposed how the quantum of compensation was to be determined."
In making its considerations for eligibility the Commission canvassed four options and concluded that the scheme for compensating should be limited to exceptional cases where:
(i) it is clearly established that the claimant is innocent;
(i) the criminal justice system has failed to discharge the claimant at or before verdict; and
(ii) the conviction has resulted in imprisonment."
The Commission was innovative in that it recommended a scheme that would confer "a right to have compensation assessed."" No such right previously ex
58 The Law Commission Compensating the
Wrongly Convicted, Report 49, 1998, 26.
59 Ibid, 27.
isted, or currently exists, in New Zealand as compensation assessments are at the discretion of the Crown.° This new approach was justified on a number of grounds. Firstly, it was proposed that by conferring a right to compensation it would indicate that the state was seriously concerned about convicting and imprisoning the innocent.6' It would also show that the state placed value in peoples' liberty and freedom. Further the public would find confidence in a justice system where there was a right to compensation when the system acknowledged a wrong. In seeking to increase public confidence in the criminal justice system it was recommended that an independent tribunal be set up to assess claims and quantum of payments. The Commission also proposed that the conferring of a right to have compensation assessed would ensure clarity and certainty through the inclusion of guidelines for the exercise of the prerogative of mercy or a new section in the Crimes Act 1961. The proposed section 407A of the Crimes Act 1961 would state who had a right to have compensation assessed and would read:
(1) A person who
(a) has been convicted of a criminal offence and acquitted on appeal (including a reference under section 406 of this Act) or pardoned of that offence or had the conviction quashed without an order for a retrial; and
(a) has served all or part of a term of imprisonment imposed in respect of that offence
may apply to the Compensation Tribunal for an assessment of compensation for losses resulting from being convicted and imprisoned in respect of that offence.
(2) The Compensation Tribunal shall assess compensation only if satisfied beyond reasonable doubt that the person was innocent of the offence charged."
The Commission's criteria extended that of the interim criteria" to also include those who had their convictions reversed during normal appeal processes and a retrial was not ordered. The rationale was that a person acquitted on appeal
tion to the Minister of Justice to have the quantum of compensation assessed.
61 The Law Commission Compensating the Wrongly Convicted,
Report 49, 1998, 27.
62 Ibid, 32.
63 Refer to
page 55 above.
suffers hardship if convicted and imprisoned while awaiting the outcome of that appeal. In contrast to the interim criteria, the Commission did not require that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice. White conferring eligibility on a wider group the Commission required an eligible person to prove innocence to a higher standard than that incorporated in the interim criteria."
The Commission scheme also required that a person apply, within six months of being granted a pardon or a conviction being quashed, to the Compensation Tribunal. The Commission also sought to retain the Crown's prerogative power to consider applications outside of the scheme. This would allow the Crown flexibility to consider worthy and exceptional claims where the person did not meet the proposed criteria.
1998 Government Policy
The Government's key objectives for compensating persons who are wrongly convicted are to make good losses incurred when a person had been wrongly deprived of liberty, vindicate innocent defendants and to enhance public confidence in the justice system.65 With these objectives in mind, following the Commission report the Government adopted a mixture of the interim policy, set in 1997, and the Commission's recommendations. On 2 December 1998 Cabinet agreed to replace the interim criteria for eligibility for compensation or ex gratia payments with the following criteria (1998 criteria):
1. The category of claimants who shall be eligible to receive compensation
or ex gratia payment in respect of being wrongly convicted of offences (qualifying persons) is limited to those who:
(a) Have served all or part of a sentence of imprisonment; and
have either
(i) had their conviction quashed on appeal, without order of retrial, in the High Court (summary convictions) or Court of Appeal (including references under section 406 of the Crimes Act 1961); or
(i) Have received a free pardon under section 407 of the Crimes Act 1961; and
(b) Are alive at the time of the application.
If the Queen's Counsel is satisfied they will proceed to recommend an appropriate amount of compensation/ex gratia payment, taking into account a number of factors."
At the Cabinet meeting on 2 December 1998 it was also agreed inter alia that the Crown would reserve the right, in extraordinary circumstances, to consider claims falling outside the criteria specified on their individual merits where this is in the interest of justice." Furthermore, the new guidelines were implemented on a trial basis for a period of three years."
Under the 1998 criteria the range of potential eligible applicants was extended to include individuals who have had their convictions quashed on appeal to the High Court. While the range of potential applicants was extended, Mokomoko is from the outset ineligible for consideration as claimants must be alive at the time of application.
Rather than follow the Law Commission's recommendation of the establishment of an Independent Compensation Tribunal a Queen's Counsel is given the task of deciding the innocence of the applicant and the quantum of compensa
66 Ibid, Annex B.
69 Ibid.
tion. The establishment of an independent Tribunal was difficult to justify given the few eligible cases that would be considered." By giving a Queen's Counsel the task of assessing applications, independence of the executive branch of Government was still achieved with the objective of enhancing public confidence.7'
Following the Commission's approach rather than retaining the approach of the interim criteria, the 1998 criteria did not require that a new or newly discovered fact show conclusively that there has been a miscarriage of justice.
Beyond Reasonable Doubt
A major difference between the interim policy and that adopted in 1998 relates to Cabinet's adoption of the Commission's proviso of applicants being required to prove they are innocent beyond reasonable doubt. This issue attracted considerable criticism." In the Government's press release of 10 December 1998 the then Minister of Justice Rt Hon D.A.M. Graham stated:
The new regime is designed to shift the focus onto the innocence of the claimant, eliminating the chance that compensation is paid to guilty people who have their conviction reversed on a technicality.'
He went on to state that the test of innocence is a tough test but he believed that it was essential in order to preserve the integrity of the justice system.74 It is understandable that there is a need for safeguards to ensure people who are acquitted on technicalities or procedural grounds do not profit from their imprisonment. There is also a need to ensure that only the truly innocent are compensated. However, to require applicants to prove their innocence beyond reasonable doubt will make it near impossible for any applicant to succeed under this scheme."
73 Press Release of 10 December
1998.
74 Press Release of 10 December 1998.
While under the 1998 criteria the range of potential eligible applicants was extended from those who were eligible under the interim policy, the potential claimants are still very much limited to those who have been through appeals processes with no order for re-trial or have received a pardon. Eligible claimants are not those who are acquitted at first instance. Rather those eligible must have been acquitted on appeal to the High Court or Court of Appeal. Therefore they would have had their case before New Zealand's higher courts, on at least two sometimes three occasions." Further, the Court of Appeal can still dismiss an appeal if the grounds of appeal are decided in favour of the appellant and where there has been no substantial miscarriage of justice.77 The New Zealand Law Society were of the view that given limited eligibility, appeal requirements and the Court of Appeal powers in terms of section 385 of the Crimes Act 1961 the Court in themselves would act as a filter for claims where a person may be guilty but acquitted on a technical or procedural ground."
There will be few cases that will qualify to be considered for compensation. Of those limited number eligible to be considered not all will be able to prove innocence beyond reasonable doubt. There are practical difficulties in requiring a
" Justice and Law Reform Committee's Report on a briefing from the Law Commission and the New Zealand Law Society on Report 49 — Compensating the Wrongly Convicted 1999, 4.
claimant to prove innocence let alone requiring that innocence to be proven to a standard beyond reasonable doubt. The Ministry of Justice estimated that between 1993 and 1997 "no more than seven cases a year would qualify for consideration.""
A major difficulty the Mokomoko whanau would face if they were eligible under the 1998 criteria is proving their tipuna was innocent beyond reasonable doubt. There is obvious difficulty with evidence given the trial was in 1866. While much evidence indicates Mokomoko's innocence' it is unclear whether a Queen's Counsel would assess the current evidence as proving innocence beyond reasonable doubt. The Ministry of Justice appears to be of the opinion that:
There is no satisfactory basis on which we could now conclude that a jury was not entitled to return a guilty verdict in respect of Mokomoko."
In submissions to the Justice and Law Reform Select Committee, Judith Ablett-Kerr QC noted the harshness of the standard required in stating:
Having failed to protect those individuals from the trauma of conviction, loss of good name, loss of everything that goes with being wrongfully convicted, and not the least loss of liberty, the present system says that we will not compensate you for what is the system's error unless you can prove beyond reasonable doubt that you are innocent. To get compensation for what, for some, is an extreme trauma which is likely to affect them for the rest of their lives, requires the victim of the wrongful conviction to assume that high burden of proof beyond reasonable doubt."
81 Refer to page 48.
Letter from Secretary of Justice to the Minister of Justice regarding "Mokomoko —
Application for Posthumous Pardon", 11 December 1990.
It is interesting that the Ministry of Justice, the Justice and Law Reform Committee and the New Zealand Law Society were all of the view that the standard adopted by Cabinet in 1998 is unreasonable. The Ministry of Justice recognised the difficulty claimants will have in proving their innocence.
We have determined that the number of claims that would be received under the proposed scheme is likely to be small and consider it likely that even fewer will meet the test of proving innocence beyond reasonable doubt.84
The majority view of the Justice and Law Reform Committee was that:
Most of us consider that the threshold for compensation recommended by the Commission, and adopted by the Government, that claimants must prove their innocence beyond reasonable doubt, is unreasonably high. We consider that very few, if any, persons who have been wrongly convicted and imprisoned, will be able to meet this standard, which is virtually impossible to attain in our criminal justice system."
The Justice and Law Reform Committee went as far as to recommend to Government that they consider lowering the threshold test to the "standard of being required to prove innocence on the balance of probabilities."86
The Law Society noted:
...it is not necessary or desirable in the interest of justice to set a wrongfully convicted person another test at "an impossible high standard" to gain some compensation for the failure of the system."
Even with the above concerns raised the Cabinet of the time still followed the recommendation of the Commission of having the standard of proof at beyond reasonable doubt. The Government did note that they would re-examine the thresh
86 Ibid, 7.
87 lbid,
4.
old test when all aspects of the process were reviewed." So why did the Commission recommended such a standard? The Commission were of the view that only the "truly innocent"" should receive compensation. The Commission recognised that if the scheme was dealing with only applicants who were innocent then the standard would be balance of probabilities but the scheme would also deal with those who are not innocent and have secured an acquittal."
There were also administrative and resource concerns. The Commission saw that wider criteria for eligibility to be considered for compensation could "threaten finality and certainty in criminal procedure and lead to destabilisation of the administration of justice".9'
Further justification for the higher standard of proof was due to the removal of the requirement for a new fact or a miscarriage of justice. With a shift to a focus on the innocence of the applicant it was necessary to increase the standard of proof required.
A higher standard of proof is considered consistent with the article 14(6) of the International Covenant on Civil and Political Rights," which requires facts to "show conclusively" that there had been a miscarriage of justice. A standard of reasonable doubt, in the Commission's view, equated with "show conclusively"."
This sees a shift in focus to the innocence of the applicant rather than whether there has been a miscarriage of justice. In terms of Mokomoko's situation it has
92 Discussed above at page
54
93 Notes from Justice and Law Reform Committee meeting,
February 1999, 2.
been noted above that there are obvious difficulties in proving innocence beyond reasonable doubt. What is more easily assessed is the miscarriage ofjustice of the situation. The record of the Mokomoko trial when read in totality and with knowledge of the context of the time establishes that there was a miscarriage of justice. Even when disregarding the fact that the evidence strongly indicated that Mokomoko was innocent, a number of factors support the contention that there had been a miscarriage ofjustice. These factors include unjust procedures at trial; one solicitor acting for all four accused; a one day hearing; no evidence being called on behalf of the defence; the accused not giving evidence until sentencing (as to why he should not be hanged); the very brief cross examination; and the inconsistency of the Crown's case.94 Tuiringa Mokomoko when writing on behalf of the Mokomoko Whanau to the Rt. Hon Douglas Graham, Minister of Justice at the time, made the point clear when stating:
It is our submission that a unique set of circumstances conspired against Mokomoko, involved him in a trial from which there was no chance of true justice and which resulted in him being hanged for a crime he did not commit."
The Commission recognised that the new requirement for standard of proof is higher but were of the view that it was better that an innocent person who cannot prove their case beyond a reasonable doubt not recover compensation rather than someone who is guilty receive compensation. The Commission stated:
The law cannot achieve a perfect, but only a practical result. In the present context we prefer a result that protects the efficient operation of the system, even at a cost to some innocent claimants."
This is a difficult view to accept when considering that it is the failures of the legal system that puts innocent persons in prison and deprives them of liberty. The Commission's view is that when the legal system is inefficient and imprisons innocent persons it is best that the system then operate efficiently even at the costs of failing to compensate a worthy applicant. A situation could therefore emerge where efficient compensation operation of the system fails to compensate for inefficiency of that same system. The Commission's assessment was that it was better that innocent people receive no compensation rather than guilty people receive compensation. This is somewhat of a reverse of the old saying that it is
94 Refer to page 48.
better that a guilty person go free than an innocent person be imprisoned.
Not only is the standard high but there is also uncertainty as to what is required to be proved. In most criminal cases the burden is on the prosecution to prove all elements of an offence and also, in most cases, negate the existence of a defence. The current scheme is unclear as to what the applicant will need to prove. No criteria, mechanism or procedure is given as to what the applicant must prove to satisfy the burden. By simply shifting the burden in criminal matters one could presume that the applicant is required to prove beyond reasonable doubt that they did not commit any of the elements of an offence. Further there is no provision of criteria by which the applicant shall be judged.97 The policy simply states that a qualifying application will be referred to a Queen's Counsel who must be satisfied that the claimant is innocent beyond reasonable doubt.
Besides the high threshold standard to meet, many applicants will simply not be able to afford to fund an application. The costs in defending a case are high as would be the cost in putting a case together to prove your innocence beyond reasonable doubt.98
The issue of the standard of proof will be one matter given serious consideration when the scheme is reviewed99 especially given the present Minister of Justice's early indications that he sees the standard of proof being too highlm and indications from the Ministry of Justice that it is intended that changes be made to the threshold for innocence within the context of the review.'°'
The 1998 criteria has a number of hurdles that applicants must get through. Some of those hurdles are set too high and it is therefore questionable as to the fairness of such criteria. The previous Government was well aware of this fact when adopt
Law Commission Compensating the Wrongly Convicted — Report 49, 1998, 40. "Dougherty seeks anonymity" Bay of Plenty Times, 12 July 2001 states: Justice Minister Phil Goff said the criteria, set by the previous government in 1988, under which compensation cases were decided would be reviewed by December this year.
101 Letter from Secretary for Justice to writer, 2 July 2001.
ing a scheme where few if any applicants will be successful. Returning to Mokomoko
So do the 1998 criteria in relation to compensating the wrongly convicted assist the Mokomoko whanau? No.
It has already been commented that at the outset Mokomoko is ineligible for consideration as claimants must be alive at the time of application.
Even if Mokomoko was alive to make an application it appears that the compensation scheme excludes claims where a person has received a free pardon that is subject to a Treaty of Waitangi Claim. In a Cabinet paper relating to compensation for the wrongly convicted it states:
As a point of clarification, it is not intended that this paper extend to statutory or free pardons that are the subject of Treaty of Waitangi claim settlements. In this regard, it is noted that claims have been made to the Crown by the descendants of persons who have received free and statutory pardons in respect of historical grievances.102
While there does not appear to be an official government policy excluding those who may be entitled to compensation for wrongful conviction if they have a Waitangi Tribunal claim lodged, the situation has been recognised as a possibility and disregarded.
As noted above a major difficulty the Mokomoko whanau face under the 1998 criteria is proving their tipuna was innocent beyond reasonable doubt.m
Further exclusion of the Mokomoko case relates to the assessment of losses. Even if eligible and successful in obtaining consideration the Mokomoko whanau's losses are excluded under the 1998 criteria. It is interesting that the current 1998 criteria specifically excludes the exact types of losses sought by the Mokomoko Whanau. Currently there is a Waitangi Tribunal claim'" lodged whereby Mokomoko's whanau seek compensation for emotional harm, stigmatisation and loss of reputation as a result of Mokomoko's conviction and execution. While recognising that a family may suffer emotional harm, stigmatisation and loss of
103 Refer to page 62.
104 Wai 203.
reputation as a result of a wrongful conviction and imprisonment the Commission were of the opinion that these specific types of losses were too remote to be covered by a compensation scheme.
The claimant's family may also have suffered emotional harm, stigmatisation and loss of reputation as a result of the claimant's conviction. However, the response to our discussion paper confirms our preliminary view that such losses are too remote to be covered by a compensation scheme.m
The only apparent avenue within the compensation scheme available to the Mokomoko whanau to gain justice rests with the Crown's reserved right, in extraordinary circumstances, to consider claims falling outside the criteria specified on their individual merits where it is in the interest of justice. This will be but one further challenge the Mokomoko whanau have to endure. The Office of Treaty Settlements has already warned the Government about the significant precedent that could be set upon granting compensation to Mokomoko when it wrote:
We consider that compensation specifically related to the execution of Chief Mokomoko might create a significant precedent for claims where other Maori involved in the wars were executed. It might also be argued to create a precedent where Maori were killed in general in the wars: some 50 Whakatohea were killed during the Crown's invasion of their territory last century, for example.'°6
What failed to be considered is that compensation to Mokomoko should be seen in relation to those wrongly convicted and wrongly executed. Mokomoko's case is distinguishable to those who may seek compensation for execution in war. Mokomoko was tried, albeit in an unsatisfactory manner, and wrongly convicted for the murder of Volkner. He was not a prisoner of war, not convicted of a crime during war and not convicted of being a rebel in war. His case stands as one seeking compensation for wrongful conviction.
It is difficult to know whether the Crown would view the Mokomoko circumstances as extraordinary. Factors relating to the Mokomoko case appear to make this case very extraordinary. Factors such as: Mokomoko was wrongly convicted; he was wrongly executed; he was granted a pardon which in itself is somewhat extraordinary especially given the limited number of pardons granted in New
105 The Law Commission Compensating the Wrongly Convicted, Report 49, 1998, 46.
Zealand.1°7 If found to be
extraordinary circumstances the Crown can give consideration to the Mokomoko
case. The final requirement would be
that to grant compensation would be in the
interest of justice. If justice equates to making good losses when a person has
been wrongly
convicted, deprived of their liberty and executed, then this is a
case where it is in the interest of justice to make good the losses
suffered.
The Mokomoko case is clearly a situation requiring justice to be done. It is for
the Crown to see that in the interest
of justice some compensation for wrongful
conviction and execution is made. Obviously no compensation will be adequate for
the loss
of life, but some compensation could bring some justice to the Mokomoko
whanau.
Me tiki ki tawhiti hei homai te mekameka
Ko te rerenga o
te ra ko te Kawana kei Oropi
Mana e ki mai me tau au ke te tauari Hei
tutaki e mo te kuaha o te pouaka.
Bring me justice from distant
lands to break my shackles
Where the sun sets is a government in Europe
It is for them to say that I must hang They shut me in my coffin box.1°8
Last century, Mokomoko called to distant lands for justice but to no avail. Today, his descendants press on with his call for justice. These calls are not to distant lands but to the government of this land. Mokomoko's pardon symbolises a loosening of his shackles. Compensation to the Mokomoko whanau will help to lift the shackles not only from their tipuna in his death, but also from generations of whanau who have suffered stigmatisation. Compensation will bring closure to the Mokomoko call for justice.
107 Refer to page 52.
108 Refer to footnote 2.
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