On the back of the Lundy case, there has been some discussion in the last week about whether or not New Zealand should consider having an independent organisation to assess potential miscarriages of justice, similar to the English Criminal Cases Review Commission. It’s not the first time the suggestion has been mooted: several other high-profile cases have been named that could have benefited.
It is important to remember that the current system we have in NZ means that the best chance to test the factual basis of the Crown case and therefore the police investigation is prior to the first trial. Once that first trial has been completed, the options for review of a case start to narrow considerably. The hurdle to get an appeal is very high; for example, a point of law might need to be in contention but in many cases it is not the law that is the problem, it is what was accepted by the court as the sound factual basis of the case.
The ‘new evidence’ hurdle is very difficult to overcome. In many cases, there is no ‘new evidence’ as such, just evidence presented at the first trial that was not, for whatever reason, fully tested – this does not usually meet the new evidence test because it was known at the time of the first trial, regardless of whether or not it formed a substantial plank of the Crown case or whether or not the defence chose to test it.
Any organisation that is established to consider review of any criminal cases needs to take into account that the initial errors in a case may not be the result of an incorrect legal interpretation or new evidence coming to light in the time after the initial trial. It may be that the original investigation and/or science was not done well enough and the ‘factual’ basis of the case was not properly tested in court.
Let’s also not forget that the current process requires financial and time commitment of individuals representing the person who believes a miscarriage of justice has occurred. There is often no funding for the most difficult stages of the assessment: the independent assessment of the police investigation and the Crown case; I know from experience that this will suck hundreds of hours just trying to obtain and then make sense of thousands of pages of documents from different sources. It also requires a mass of knowledge and expertise that is not usually known to anyone outside the criminal legal system – I’ve been doing this work for 15 years and I’m still learning.
Any organisation to assess these types of cases therefore needs to have a broader view than just an assessment of the legal process a case followed; the non-legal matters are often the key but the financial and personal toll these cases take on individuals investigating them cannot be understated.