The Crown’s lawyers’ role in the prosecution of Alan Hall, a New Zealander who spent 19 years in prison for a murder he did not commit, will be investigated by an independent inquiry, the country’s attorney general has announced.
The Crown has released the terms of reference for its unprecedented investigation into its involvement in one of New Zealand’s worst legal disturbances, as it tries to understand why crucial testimonies were not given to the defense. The query will be performed by Nicolette Levy QC.
This is the first time the Crown has turned independent investigators against itself after acknowledging the “unacceptable truth” that an “irresponsible cause of abortion” had taken place. But those who specialize in illegal convictions say there is a need for broader investigations into the criminal justice system.
Hall, who is autistic and is pākehā – or of European descent – was convicted in 1986 at the age of 23 of the murder of Arthur Easton in his home in Papakura, Auckland, in 1985. But a description of a man who left the crime scene as “definitely dark in the skin” was removed from later versions of a witness statement without the witness being made aware of it.The Crown also acknowledged that the police interrogations with Hall were “unfair and oppressive”.
In June, the Supreme Court overturned Hall’s murder. The chief judge, Helen Winkelman, told the court that the deviation from the accepted standards must “either be the result of extreme incompetence or of a deliberate and wrong strategy to secure conviction”.
The query will examine how the non-publication occurred; at what points abortion could have been identified by the Crown’s lawyers; and identify actions or omissions by the attorneys who, between 1985 and 2022, were involved in obtaining and upholding Hall’s judgment.
“It is extremely important that public confidence in the integrity and impartiality of the prosecution process is maintained,” Advocate General Una Jagose QC said.
Hall’s attorney, Nick Chisnall, said the terms had been “generously drafted” and would provide a good platform to conduct the investigation. “They focus not only on the trial, but what has happened since, which is really positive and shows a genuine desire to get to the bottom of things.”
But Chisnall, like other defense attorneys and investigators who specialize in illegal convictions, does not believe it will result in a fundamental change in what they say is a deeply flawed criminal justice system. “It’s not a system-wide review … we need to be careful about trying to put too much emphasis on what this can accomplish.”
Calls are growing for a Royal Commission of Inquiry, which will also investigate the role of the police and the Ministry of Justice in why the same themes keep popping up in cases of wrongful conviction: misidentification, lack of disclosure of evidence and wrongfully obtained statements.
“We see the same series of problems recur over and over again,” said Tim McKinnel, an investigator who has worked on some of New Zealand’s most high-profile cases of wrongful conviction, including Hall and Teina Pora, who were jailed for 21 years after to have been wrongfully convicted of murder before his sentence was overturned by the Private Council in 2015. “There is a real lack of interest in learning what errors have contributed to a wrongful conviction.”
New Zealand was naive about the risk of justice difficulties and driven by a culture of exceptionalism when it comes to trusting its institutions, he said.
Police persistently pursued confessions, which could lead to false confessions if the suspect had a vulnerability, such as a learning disability, McKinnel added. He said that to make matters worse, criminal defense attorneys were underfunded and under-resources.
“There is every reason to believe that we have the same problems as other ordinary jurisdictions, and we have a native population that is heavily imprisoned – there is reason to believe that we may be worse off than some other similar jurisdictions. . “
One of New Zealand’s leading criminal defense attorneys, Christopher Stevenson, said the known cases only represented the tip of the iceberg. “Possibly 90% of the actual abortions and the actually innocent people who have been convicted wrongly become unknown.”
But recent cases of wrongful convictions, including those Stevenson has represented, show that the same systemic problems are emerging, he said.
“In Canada, when they have had significant abortions … they have had a commission of inquiry. They are really powerful processes, and incredible lessons were learned from them, and the Canadian criminal justice system was dramatically improved as a result,” Stevenson said.
“There should be a commission of inquiry looking at how the criminal system works [in New Zealand] and why we have so many cases going wrong. “