Amicus Curiae: Pipping the Government to the Post - NZPIP and Miscarriages of Justice


At the start of this month, a group of prominent legal practitioners and academics motivated joined together to form the New Zealand Public Interest Panel (NZPIP) in order to investigate cases showing the hallmarks of a miscarriage of justice rather than await the establishment of an official body discharging the same function. Today, Guest Contributor Naushyn Janah, of the EJP Outreach team, reflects on this news and the ongoing need for such an official body in light of EJP Outreach's recent Symposium on Miscarriages of Justice, where the idea of such an official body attracted support from speakers.

The report produced by Outreach on miscarriages of justice in the Bain, Lundy, and Pora cases is available to read here. A report of the discussion at the Symposium is available to read here, and audiovisual recordings of the Symposium can be accessed here.


Michael October was convicted of and served eleven years for the rape and murder of Anne-Marie Ellens in 1994. He claims, however, that he is innocent. If October’s claim is true, he would be among those the victims of miscarriages of justice in New Zealand.

There has been renewed media attention surrounding October’s case following the decision by the New Zealand Public Interest Panel (NZPIP) to investigate his case on the basis of a suspected miscarriage of justice. Formed at the start of this month, the panel aims to investigate and appeal potential miscarriages of justice. In particular, the members of the panel aim to fill the gap left by the absence of a body resembling the United Kingdom's independent Criminal Case Review Commission (CCRC) in New Zealand.

The idea of the government creating, and funding, such a Commission was endorsed by speakers at a recent symposium hosted by the Equal Justice Project's Outreach Team. The symposium asked whether we are putting the wrong people in our prisons by looking at the gaps in the prosecution, trial, conviction, and appeal processes that lead to miscarriages of justice. Following an analysis of the Bain, Lundy and Pora trials, a report the Outreach Team published highlighted the ways in which the establishment of such a commission would deliver more adequate justice in light of the United Kingdom’s experience with the CCRC, on which model on which NZPIP is based.

The UK CCRC is an independent body that has the power to refer cases to appellate level courts, which occurs when the commission determines that there is a “real possibility” that such a court would either quash a conviction or modify a sentence. Such a body operating in New Zealand would aid in addressing the multitude of factors in the criminal justice process that contribute to wrongful convictions, helping review and resolve cases where justice has not been achieved. It would act as a safety valve to ensure that the outcomes of the criminal justice system are fair.

Whilst comprised of many distinguished and influential individuals, the NZPP is an unofficial body. This means that unlike the CCRC, the NZPIP does not have the power to refer a case back to an appellate court by means of a statutory mechanism. They are however able to make applications to appeal courts. Whilst this does create something of a safety valve, it means that the NZPIP’s investigations have less of an immediate impact on individual cases than that of an official review commission.

Nevertheless, the foundation of a group like the NZPIP is a first step towards establishing a parliament-mandated independent review commission. The NZPIP is also essential to ensuring that those who believe they are subject to a miscarriage of justice are able to challenge their conviction without having to rely on the extremely limited public funding for such appeals.

The government has not supported suggestions for New Zealand to establish its own CCRC-like body. Prime Minister John Key has stated that there is presently a “proper process to go through” where there are miscarriages of justice; referring to the appellate courts and the use of the royal prerogative of mercy. An independent commission, however, would perform functions not addressed by the current procedures. One particularly important function would be to make inquiries into cases where a court has potentially erred on a matter of fact, while appellate courts generally focus only on questions of law.

Michael October’s case is among the first that NZPIP has decided to investigate. The case is a difficult one; its features paralleling many of the obstacles encountered in ensuring the safety of convictions seen in the Bain, Lundy and Pora cases. Like these cases, there is a high risk of jury bias due to the media scrutiny surrounding the murder and rape of a young woman. Furthermore, the heavy reliance on eyewitness identification raises the question of reliability, as eyewitness examinations have been demonstrated to be fallible.

This is not to say that the courts are a wholly unreliable way of dispensing justice. The NZPIP, and to a greater degree a Criminal Cases Review Commission, would be able inspect these potential failings, ensure that the justice system is more robust, and address lacunae raised by the Courts' treatment of these issues so as to better ensure equal justice for all.


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