Injustice with best intentions

The Criminal Cases Review Commission was established in 2020 because people who have been wrongfully imprisoned should have another chance to have their cases reviewed, even after all legal appeals have been exhausted.

In the words of the then Justice Minister Andrew Little, who introduced the legislation, no justice system is perfect and sometimes things go “spectacularly wrong”.

An oft-cited case is that of Teina Pora, who was wrongfully convicted and imprisoned for murder at the age of 17 but released 21 years later, with a pardon and $2.5 million in compensation.

A case like Pora’s supports the argument that a commission to investigate and correct miscarriages of justice is a good thing — a chance to put matters right.

But the commission, and the wider criminal justice system, should also be aware that reopening old cases can have extremely negative effects on others, particularly victims. This is particularly true in the case of sex offenders, who provide the main categories of demand for the commission’s attention.

When the commission started work in July 2020, even it was surprised by the number of cases that came in. It had predicted 125 in the first year but received that many in the first six months. After 12 months, the commission had received 221 applications. By the end of February, the latest figure available, there were 282.

Forty-seven were from people convicted of murder or manslaughter, the sort of crime which might come to mind if one imagines a person languishing in jail for a crime they did not commit.

But there were two other categories that eclipsed homicide — sexual offending against adults (with 70 cases) and sexual offending against children (55).

That means 125 cases — 45 per cent of the total applications received — came from people convicted of sex crimes. Convicted sex offenders make up fewer than a quarter of the prison population, so the number seems disproportionately high.

Commission chairman Colin Carruthers, while warning there is no scientific basis for his view, believes a “denial mentality” among sex offenders may be the reason.

He is probably right. Studies have demonstrated offenders’ denial of sex crimes is common at every stage of the criminal justice system.

This matters because, in the words of one abuse victim recently, sexual abuse creates its own life sentence. The lifelong trauma is well documented and understood.

This means that even reopening an old case, let alone deciding on it, has the potential to revictimise people.

Any miscarriage of justice is deplorable and an avenue for exposing such cases is commendable but the commission will need to tread cautiously to avoid creating a different sort of injustice.