LEGAL LINES - Criminal Cases Review Commission

Friday, November 6, 2020

From 1 July 2020, anyone convicted of a crime in a New Zealand court who believes they have suffered a miscarriage of justice over their conviction or sentence, or both, can apply to the New Zealand Criminal Cases Review Commission (CCRC) for an independent review of their case. If this sounds like it might apply to you or someone you know, then please read on as I’m going to explain why the CCRC was established, how to make an application to the CCRC, and what happens if your application is approved.

Why do we need a Criminal Cases Review Commission?
The CCRC is an independent Crown entity that employs specialist staff to investigate possible miscarriages of justice. Miscarriages of justice occur because, as with any system, mistakes are made. When someone is convicted for a crime they did not commit, or when someone believes the system has failed them, it causes unimaginable distress to that person and their family and sparks criticism of our justice system. It also means that victims of crime have not had justice served either. Previously, anyone who believed they had suffered a miscarriage of justice could only apply to the Governor- General, who acts on the advice of the Minister of Justice, for the exercise of the Royal prerogative of mercy. If successful, a person can be pardoned or a person’s conviction or sentence can be referred back to the courts. However, the record shows that applications from people who are over-represented in the system, such as Maori and Pacific people, are between 11 and 16%, despite then making up more than 60% of the New Zealand prison population. The need for a CCRC for people of all ethnicities and backgrounds arose out of concerns about the independence, timeliness and quality of investigations into miscarriages of justice. These concerns were expressed over many years by civil society groups, including the New Zealand Public Interest Project, the New Zealand Innocence Project, and others, including MPs, journalists, academics, members of the legal profession, investigators and forensic scientists. Several countries have established their own Criminal Cases Review Commission, including the United Kingdom (England, Wales and Northern Ireland), Scotland and Norway.

How do I apply?
The test to refer a case to an appeal court is whether the CCRC considers that it is in the interests of justice to do so. There is a range of factors that they must consider when making a referral decision, including whether the convicted person has exhausted all appeal rights, whether there is fresh evidence, and the prospects of a referral succeeding. An application is unlikely to be accepted if you haven’t already appealed to the courts, because the focus of the CCRC is to look at potential miscarriages of justice for people who have already lost an appeal. You do not need a lawyer to apply to the CCRC, but you may like to ask a lawyer to assist you in completing the application form, as they will be able to help you with your grounds for review. Legal aid is available if you are unable to afford to pay a lawyer to assist you with making an application, and there is no cost to submit an application to the CCRC. The application form is available in English, Maori, Samoan, and Tongan and you can access it online by going to the official website, which is www.ccrc.nz. If you need help completing the form, then you can call the help line on 0800 33 77 88. How does the process work? The chief commissioner, Colin Carruthers QC, heads a board of commissioners, including a deputy chief commissioner. The commissioner’s role is to accept or decline applications. When an application is received, it will be assessed. The commissioners review the assessment and either refer it for a full investigation or decline the application. The applicant will be sent a preliminary statement of reasons prior to the commission making its final referral decision. At this stage the applicant can comment on the statement of reasons and the add anything else that they believe the commission should consider before making its final decision.

Reports will be produced on applications that are referred for a full investigation. The commissioners will then review the investigation report and make a final decision about whether or not to refer the case to court. The applicant will be contacted to advise them of the outcome of the decision and a short media release will be issued. A summary of the decision will also be made available on the official website. Remember that the CCRC does not decide guilt or innocence. Their role is to decide whether a case is referred back to an appeal court. If this happens, then the applicant will be given advice of the hearing date and the court will determine the outcome of the case.