The Privy Council says that Teina Pora should not face another trial. Now we can get on with trying to make some reparation for the wrong we did to him.

According to Radio NZ, the Privy Council has recommended that Teina Pora should not face a retrial for the rape and murder of Susan Burdett. This is great news.

First of all, it means that he won't have to go through the whole stress and uncertainty of yet another set of court proceedings before he finally is a completely free man able to get on with his life. 

Second, it makes the path to his receiving compensation from the Crown for the awful wrong he has suffered a whole lot easier. Here's the process that Cabinet has laid out for giving ex gratia payments to those who have been wrongfully convicted (there's also a handy flowchart here):

Eligible claimants must be imprisoned, and subsequently pardoned or convictions quashed

The Cabinet guidelines require claimants to:

  • be alive at the time of application
  • have served all or part of a sentence of imprisonment
  • have received a free pardon or have had their convictions quashed on appeal without order of retrial.

Investigation and determination of claims

The Ministry of Justice initially assesses each claim.  Claims meriting further assessment are referred by the Minister of Justice to a Queen’s Counsel for advice. The Queen’s Counsel then reports to the Minister on the merits of the claim. If the Queen’s Counsel is satisfied that the applicant is innocent on the balance of probabilities, the Queen’s Counsel will recommend an appropriate amount of compensation in line with the guidelines. Cabinet makes the final decision on the recommendation of the Minister.

Types of compensation

The Cabinet guidelines contemplate three kinds of compensation for successful claimants:

  • payments for non-pecuniary losses following conviction (for example, loss of liberty or emotional harm) – based on a starting figure of $100,000 for each year in custody
  • payments for pecuniary losses following conviction (for example, loss of livelihood and future earnings)
  • a public apology or statement of innocence.

Now that Pora has had his conviction quashed with no retrial ordered, he falls within the Cabinet's guidelines. And I'm pretty confident that any QC tasked with looking at this issue is going to say (on the balance of probabilities) that Pora was innocent of any involvement in Ms Burdett's murder. Meaning that Pora will now almost certainly be in line for a minimum $2.1 million payment for the 21 years he wrongly spent behind bars - with perhaps more added to this to reflect the fact he's lost over two decades of working income. (Albeit that Mr Pora's lack of educational qualifications and the effect of his fetal alcohol syndrome may mean this was fairly minimal). He also, if there's any justice in the world, get a formal statement from the Crown that he was innocent of the accusations against him.

But had the Privy Council recommended another trial for Mr Pora, then that would have put him outside of the Cabinet's Guidelines. In that case, Mr Pora would have had to show, at a minimum, that he was innocent on the balance of probabilities and also show that there are extraordinary circumstances that justify compensation. He may have been able to do so - 21 years in jail for something he didn't do!!!! - but it still would have been an extra step to get over.

So now Mr Pora can get on with living the life he has spent 21 years waiting to start again. I sincerely hope it goes well for him. And I devoutly hope that the money he gets for his ordeal doesn't attract more of the sort of "reprehensible" and "reptilian" attention of people like Duco Events who see his misfortune as an opportunity to profit.

Comments (2)

by Rich on March 30, 2015
Rich

Does the fact that a retrial wasn't ordered necessarily mean that there is a reduced likelihood of guilt? 

And really, should there be a "degree of proof" standard at all - one is after all innocent until proven guilty. I'd suggest the test should be whether the justice authorities (police and courts, etc) were negligent in prosecuting and deciding the case, thus denying someone a fair trial on all the evidence.

(There are miscarriages of justice where the state isn't responsible - for instance, a witness may have lied convincingly and only recanted or been refuted after some time - could they be forced to make reparations in those circumstances? In any case, the state should do so when at fault).

 

by Andrew Geddis on March 31, 2015
Andrew Geddis

@Rich,

Not necessarily - the Crown argued to the Privy Council that there was enough evidence to justify a retrial, but it was not in the public interest to have one (because Mr Pora already had spent so long in jail and was out on parole). I'm guessing that's why compensation doesn't automatically follow an order that there be no retrial. So it is possible that a QC might look at Mr Pora's case and say (on the balance of probabilities) that he was actually guilty. From what I've read of the case, however, I don't think that this is very likely at all.

So let's accept that Mr Pora is innocent (at least on the balance of probabilities, anyway). And let's also accept that no-one in the Police or prosecution did anything "wrong", in terms of they did their investigative job properly and just presented the evidence as they had it. Both of these points may be contested, but we'll accept them for now. Should compensation be available anyway, even if "the state isn't responsible" in the sense of anyone failed to perform their role as required of them?

I'd say yes. The very fact that an innocent person has spent 21 years confined by the state, subject to incredible limits on his liberties and labeled a criminal of the worst sort ought to give rise to a right to compensation irrespective of whether the system "worked" like it should. Because the very outcome - an innocent person imprisoned - is a wrong in and of itself to the person involved. In this sense, compensation for imprisoning innocent people should be like ACC - the existence of injury should give rise to a right to compensation irrespective of "fault".

Of course, if there is some sort of additional fault (police negligence or prosecutorial misconduct or the like), then that should lead to additional compensation. But I don't think we can ever just say to an innocent person who has been imprisoned "oops - sorry - turns out that you shouldn't have been there, but you can understand we didn't really do anything wrong so let's just get on with things."

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