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Q+A: Judith Collins interview

Published: 7:46PM Sunday October 13, 2013 Source: Q+A

CORIN DANN

Justice Minister Judith Collins, thank you very much for joining us this morning. You heard the introduction there [about Mark Lundy]. Another high-profile case where police and others look like they've been found to be wanting again. Are you concerned now that the public will be losing confidence in our system?

JUDITH COLLINS - Minister of Justice

The public shouldn't have any loss of confidence. This matter relates to about 2002. That's when Mr Lundy's first case was heard and he was convicted of murder of both his wife and daughter. The Privy Council, in this case, he's appealed to them because he's chosen to go the Privy Council rather than to our Supreme Court, and it's ordered a retrial, and that's where it stands at the moment. So the system is working. He's been granted a retrial, and that will no doubt go ahead.

CORIN

Are you concerned, though, by some of the comments made by the law lords about evidence that was withheld?

JUDITH

I can't really comment on individual cases, particularly a matter which is now before the courts again, so it's difficult to do that. But that's a matter which will no doubt be canvassed during the retrial.

CORIN

What about, though, the time that it has taken? I mean, that seems to be a big issue here, and the barriers that the lawyers say they faced in trying to bring this case to the Privy Council in the first place.

JUDITH

Well, it's Mr Lundy's application itself. So, he was convicted, he appealed to the Court of Appeal, and the Court of Appeal did not uphold his appeal. So he has then gone on some years later - actually, many years later - to then seek to have the matter heard in the Privy Council. And, as I said, he could have gone to the Supreme Court. And the time it takes is really a matter for him and his lawyers, and it may be that they wanted more information, and it may well be that there's new evidence. And, of course, science, and in particular DNA science, has improved hugely in the last 10 years and particularly so in the last 20 years.

CORIN

So you're confident the police aren't dragging their heels here, aren't making life too difficult for these types of appeals? Because there's plenty of commentary around at

the moment that seems to suggest or argue that there's some sort of a stubbornness or unwillingness on behalf of police to accept that they ever get anything wrong.

JUDITH

Well, I don't think that that should be true, because we have now the Independent Police Conduct Authority which was set up in about 2007. And that is a far more robust process and body than its predecessor, the Police Complaints Authority. So the fact is that sometimes police will get things wrong. The vast majority of the time, they don't. We have 85,000 criminal convictions a year in this country. Of those, only 1 per cent are appealed, and of that 1 per cent that are appealed, only 10 per cent are successfully appealed. So that's about 99.9 per cent of all criminal convictions every year are upheld.

CORIN

So you're arguing that the system's robust, that it's pretty robust, but isn't the issue here not that it's not robust? I think a lot of people would agree that it is. That it's how it deals with its mistakes, and we've got a system in place to do that, but at the moment, it seems to be failing on some of those high-profile cases to deal with its errors.

JUDITH

Well, no, because, in fact, the Privy Council is no longer part of our system, except for cases which were first heard before 2004. So, in Mr Lundy's case, he chose to go there, but that is therefore as part of our legal system. Any other cases, more recent cases, would go to our Supreme Court. So this is the appeal process working, but we also have the Royal prerogative of mercy, which is another avenue, but that doesn't kick in, really, until after the appeal processes have gone through. So if Mr Lundy had been unsuccessful in getting leave to appeal to the Privy Council, he could then have applied for the Royal prerogative of mercy, which is the executive, essentially, looking at the issue and then referring it to the Governor General.

CORIN

Sure. Well, let's take the Lundy case and the Bain case and others where it's clear that in these cases, they've taken a very long time, they've been very costly, and they've had someone championing their cause. Not everyone who's innocent in prison and who shouldn't be there is going to get that champion, and that seems to be a failing in the system, isn't it?

JUDITH

Well, I will say this to you, Corin, is that half of all people convicted of murder in this country will appeal. And I don't believe for a moment that half of all the people convicted of murder are not guilty, but half of them will appeal. And when you have, in fact, a mandatory sentence of life imprisonment, there is a tremendous advantage in appealing. And of those, only a tiny minority - about one a year - are ever overturned on appeal, and mostly they then end up being charged with manslaughter. So the fact is that these cases take a long time primarily because no one's actually taken it further to the appeal process.

CORIN

But isn't the argument that they don't need to take a long time? If we set up an independent commission, some sort of separate body similar to what is used in the likes of the UK, they would deal with these types of appeals quite quickly. Eight months rather than a decade for some of them here.

JUDITH

Well, actually, the reason it's taken a decade is because that's the time it's taken for the applications to come in. But, having said that, we already have that. It's called the Royal prerogative of mercy. I've looked at what they have in the UK and Scotland, and, in fact, only 4 per cent of the cases that are referred to that will ever get sent back to the Court of Appeal. And in NZ, with the Royal prerogative of mercy, about 10 per cent will be, so it's a much higher success rate in NZ than it is in the UK.

CORIN

Yes, but there's far fewer people who apply here. There seems to be a lack of people even aware of what they can do in NZ. Whereas in Scotland, for example - similar system - they're getting 1600 people applying, and 67 cases have been quashed there. That's miles more than we're getting.

JUDITH

Yes, but look at the numbers who are applying, and we have around- You could say that maybe our court system is so robust that very few people apply. But they do apply, and about 10 per cent get approved, and it's only 4 per cent on average in Scotland and the UK.

CORIN

Yes, but let's look at the-

JUDITH

And even then, Corin, the commission itself in the UK and Scotland, they can't actually quash a conviction. They have to send it back to the Court of Appeal, just as the Royal prerogative of mercy does here.

CORIN

Sure, but that system in the UK, they're going out to prisons, they're making themselves aware, making themselves extremely accessible, and they can deal with a large number of applications, strike off the ones that are frivolous and aren't valid, and they seem to be getting a far greater number of cases that are being quashed than we are with similar populations.

JUDITH

But they can't quash a conviction. They have to send it back to the court.

CORIN

Sure, but referrals to the court.

JUDITH

Yes, but they've only got 4 per cent of them that are applied for, and we've got 10 per cent. So there might be fewer cases being applied for. Maybe it's because we only have a very tiny minority of people convicted then who even appeal.

CORIN

But Sir Thomas Thorp in his report said that we're likely to have 20 people in prison that are there wrongly. I mean, if we're only getting 150 or so referrals over the course of that 10 years, doesn't that suggest there's just not enough people aware or going through that process?

JUDITH

I can't imagine, with all the publicity that's been in the media about these matters over the years, that people aren't aware of them. I mean, surely. How many people in NZ aren't aware of these cases?

CORIN

Well, let's take it a little further-

JUDITH

Particularly in prisons, frankly, Corin.

CORIN

60 per cent of our prison population is Maori and Pacific, right? Something like that, yet there's only 10 per cent of applications for the Royal prerogative from those groups. Now, that suggests something's wrong there.

JUDITH

Well, it may be that people have been accepting of their convictions. And the fact is that when you have such a tiny minority of people appealing under the current system, that tells me that a lot of people accept their convictions.

CORIN

Or it may be that they're unaware of the processes or they're not getting the help or the champion - the likes of a Joe Karam - coming to rescue their cause.

JUDITH

Well, the thing is that just because someone decides to be the champion of someone doesn't mean to say that the person that they're championing has been wrongly convicted. So I think, you know, we need to be aware that all of these matters have to go through the process. Now, I just don't understand where the commission would be any different other than what you're saying, which is that they could go round prisons, basically, asking people to apply to them. But, actually, we already have a system where people can apply, and they can apply through the Ministry of Justice website, they can get assistance for that, and I don't see that that's necessarily the issues that you're raising about time-

CORIN

Why then are so many preeminent lawyers and judges saying that it is? I mean, Dame Sian Elias, I've got briefing papers showing that she supports the idea as well, our top legal mind. Sir Geoffrey Palmer. Numerous reports and studies that have been done all arguing for it. You seem to be out on your own on this.

JUDITH

Well, no, not really at all. In fact, the previous Labour Government looked at this in 2006. My former colleague Richard Worth raised the issue with them in 2007, and both times they turned it down, and they turned it down having looked at the same issues that I've raised, which is this commission was set up in the late 1990s in the UK and in Scotland, as the Royal prerogative of mercy was more formalised in NZ about the same time. Canada looked at it, and they came up with a system very similar to our system.

CORIN

Why do politicians-? Why do you want to be involved in this? Wouldn't you prefer it if this was just dealt with in the courts and you take the politics out of it? I mean, you've had to deal with the Bain case. That can't be something you've enjoyed, surely.

JUDITH

(CHUCKLES) Well, it goes with the job, and the fact is that it's a responsibility, and we do generally leave matters to the courts. It's only after the courts have finished and it's gone through all of the processes that we would become involved, just as the commission that you're talking about has to do in the UK. I see very little difference between the commission and the way it works and what is already done with the Ministry of Justice, and the fact is that politicians keep out of these matters until well after the court process.

CORIN

Justice Minister Judith Collins, thank you very much for your time.

JUDITH

Thank you, Corin.

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