On Newshub Nation: Emma Jolliff interviews private investigator Tim McKinnel and criminal barrister Nick Chisnall

Emma Jolliff: Welcome back. Teina Pora, David Bain, Arthur Allan Thomas — they all spent years in prison fighting convictions that were eventually quashed. Now a bill has been introduced to set up an independent commission to review possible miscarriages of justice. It’s hoped the Criminal Cases Review Commission will make the process faster and more effective, but will it work? I’m joined now by private investigator Tim McKinnel and criminal barrister Nick Chisnall. Good morning to you both, thanks for joining me. Nick, you’ve said that the case for an independent commission is irresistible. Why do you say that, and what’s wrong with what we have now?

Nick Chisnall: It’s not a criticism of people involved, but the fact that the system’s very much reactive rather than proactive. It relies upon, really often, happen chance about who is approached to undertake a potential appeal. It requires what I’d describe as ‘white knights’ — people like Tim — who are able to see the issues and to proactively investigate them and get to the bottom of it. For that reason, I expect there are a number of people out there who don’t have access to those kinds of people who can help them. That’s what the light needs to be shined on.

So, Tim, cases you were involved in like Teina Pora and Terri Friesen took years, didn’t they? What were the main blockages in trying to re investigate those cases?

Tim McKinnel: It was really difficult to obtain information and collect evidence. That was the primary frustration. You enter into an adversarial process where you’re saying one thing, the police, for example, are saying another thing, and then you have a battle over getting access to information and files. Trying to use the Privacy Act and the Official Information Act as tools to obtain information — they’re incredibly blunt tools. Those sorts of things are very difficult and mean that these types of cases stretch out over years.

But, Nick, would an independent commission necessarily speed up the process, do you think?

Chisnall: I don’t think speed’s necessarily the main issue. It may well do, particularly we see cases which have taken years and years to get to court.

But speed is an issue, surely, if you’re languishing in prison for a wrongful conviction.

Chisnall: Very much so, and that must be one of the drivers. But it’s more about being able to access information, being able to collate it, being able to ask the right questions.

That compulsion to give the evidence?

Chisnall: Yes.

Tim, what difference would the review commission have made in a case like Teina Pora’s, for example?

McKinnel: Well, it would have provided access to information that, to be honest, we probably still haven’t seen. There were a number of frustrations we had in terms of obtaining that information. We had to issue proceedings in the High Court on a number of occasions. It will eliminate those. It would have made difference to Teina’s case of, I suspect, two or three years. When you’re sitting in prison, innocent of what you’re convicted of, that means quite a lot.

That’s a long time, isn’t it? Why is it so important to have cases reviewed by people not connected to the original investigations and trials? I mean, it’s quite a challenge in a country the size of New Zealand, isn’t it?

Chisnall: Again, I think it often comes back to the lens through which you look at it. If you’ve invested in the case yourself, you obviously have a strong view about what’s happened and who’s responsible. It’s a form of myopia. I’m not suggesting that it’s necessarily an intent to deceive but having people, and a number of people, who are independent — who can bring a fresh set of eyes is a very important consideration.

What about separate to any political interference? Do you see that as an issue?

Chisnall: Less so in New Zealand. Like I said at the beginning, I don’t think this is about the individuals involved. The current people at the ministry who look at these things I think do the job well and with the resources and limited scope that they have available. But it is very important that there be that degree of independence. Reasonable apprehension of bias is often what these things are about. It’s not that people are actually pushing in a particular direction. It’s just simply that there’s that impression.

So it’s a perception thing?

Chisnall: Yeah, absolutely. Yeah.

So the UK already has a commission. It’s found the single biggest cause of miscarriages of justice there is failure to disclose vital pieces of evidence. In your experience, is that likely to be the same here?

McKinnel: Yeah, I think that will be one of the issues. And the disclosure regime has changed over a period of years, so there are those types of issues, but also I think there are— there have been some changes in the way we conduct interviews — you know, police interviewing people. Forensic science and the way technology is used has changed the way criminal investigations are done. And so all of those things have brought to light some of the flaws in the system and the techniques that we’ve used up till this point.

So, Tim, you’re involved in what’s alleged in Alan Hall’s case — you know, perhaps, some of the withholding of that vital evidence. And he was convicted of the 1985 murder. Would that be a good case for the commission?

McKinnel: Yeah, potentially, it would be. There are all sorts of issues that date back, like you say, to 1985 — the disclosure regime then is very different to what it is now. There have been a number of appeals and applications and petitions made on Alan’s behalf, but I am far from convinced, from what I’ve seen, that Alan and his lawyers have seen all of the material that’s available that might help him. So a criminal case review commission eliminates those problems. They’re independent, and they’re able to obtain and compel, where they need to, ways of getting that information and evidence in.

And not just from public bodies either, is that right? Also from private individuals.

McKinnel: That’s right. That’s right. And so they’re going to be able to order documents or evidence, as well as have people give evidence under oath.

These cases have been quite all-consuming for you, haven’t they?

McKinnel: Yeah, they have a tendency to be like that. And it’s difficult. You try and be objective, but once you’ve invested a certain point— a certain amount of energy in a case, it does become personal. And so you have to find ways to manage that, because the last thing you want is your subjectivity and personal feelings creeping in and complicating what you’re doing.

Nick, you’ve got a lot of experience in appeals. Will there have to be something new and different to the original case in order to apply under an independent commission?

Chisnall: In most cases, there will need to be. I imagine the standard will stay the same as what we’ve currently got, which is deference to the appellate court that’s already heard the case. And so with that decision in place, it’s usually necessary to show something new and fresh.

And that could be a point of law or a piece of evidence or what sort of things are they likely to be?

Chisnall: Most likely going to be fresh evidence. Sometimes, in limited cases, it can be because there’s been a change in law. But, again, courts tend to be fairly deferential where the law’s changed. And so that in most cases, I expect it will be very much — like in Teina’s case — issues of fresh evidence and things which need to be looked at afresh where the court didn’t originally consider them.

In re investigating cases, how do you avoid adding to the stress and trauma of the victims throughout this process going through that again?

McKinnel: Well, it’s one of the more challenging parts of this type of work. And I think it needs to be at the forefront of the commission or anybody who does this sort of work is the people that are impacted the most by this type of work. You’re dredging it up again, sometimes from a case that was dealt with decades ago. And I know in the Teina Pora case, for example, Susan Burdett’s family was severely impacted by what we were doing. We were aware of that. There’s only so much you can do to mitigate it, but you need to be aware of it, and you need to do what you can to help families.

How much weight should be given to the victim’s rights to move on and heal? It’s a balance, isn’t it?

McKinnel: It is a balance. And one of the issues I think we’ve had in criminal justice is that desire for finality, for the end of it so that the victims can move on with their lives. And I think that’s really important. But the other side of that coin, of course, is if the wrong person’s been convicted, it’s not right that that stays in place. And so there needs to be, I think, some good processes put in place that families feel like they’re being consulted with and understand what’s happening and why it’s happening.

Nick, are you confident that the bill in its current form, it’s gone before parliament late last month, will set up a commission that’s significantly better than what we have now?

Chisnall: Yes, I think so. I think it’s certainly, overall, looking very positive.

So, some of the language in that is quite passive at the beginning of the bill, you know? It talks about receiving applications. But it does, further down, talk about initiating investigations as well. How do you get that balance right? And will the commission have the resources to do that?

Chisnall: Well, that’ll be where it’s probably going to be most important to see what its funding is, to see who the commissioners are, to see what kind of investigative responsibilities it has and, most importantly, to see what kinds of powers it has to compel evidence. That’s my primary concern at the moment is whether, in fact, it’s gone far enough to ensure that the issues that Tim mentioned about being able to actually obtain the information to ensure that there isn’t anything being withheld are there.

And compared to the UK, for example, that’s had a commission since 1997, it’s had more than 20,000 applications, it’s overturned more than 370 convictions, you know? That’s quite significant. Do you think our bill is going to be strong enough?

Chisnall: As worded, it should be. Like I say, I would hope that perhaps the powers to get information are strengthened. That’s maybe a difference at the moment between what appears to be in our bill and what UK and Scotland have, that power of compulsion. But, ultimately, it’ll be a matter of time and seeing what cases come through to see how it’s working.

Any idea of the, kind of, appetite for this? It’s a very difficult thing to measure, the number of likely miscarriages of justice, isn’t it?

Chisnall: I suspect there’ll be a flurry of cases. One of the concerns that always exist in these types of situations is whether those who most need it are too disenfranchised to actually approach the right people and ask. But I think with a body like this in place, the chances of those people having their cases ventilated are much better.

Tim, on that compulsion issue, how do you think this bill, or the commission, will be received by prosecutors and police?

McKinnel: I think, hopefully, that they will be accepting of it. Certainly, the discussions I’ve had have indicated that they will be. I think it helps that there’s a real sense of independence about what’s being set up. It’s a little bit different than having a lawyer or someone like myself chipping away at the background, sometimes necessarily working with media to try and gather the information. To have an independent body that is bound by rules around privacy and a certain degree of secrecy whilst maintaining a degree of transparency I think is going to be a really positive step. And I think prosecutors and police, when they see it up and operating, will be relatively happy with it.

What are some of the other cases that you’ve worked on, Tim, that a commission would help with?

McKinnel: Well, there are a number of cases. The Alan Hall case that you mentioned is one that I’m working on. There was also recently a podcast that focused on a woman called Gail Maney and her conviction for murder. I think that that’s a really troubling case. Those cases are being looked at now. Whether they transfer over and across to something like the Criminal Case Review Commission is something that we’ll need to look at. Both Nick and I are working on Gail’s case, and so how we progress that over the next few months in the lead up to the commission will be something we discuss.

Justice Minister Andrew Little has indicated he’d like this enforced by August next year. Is that going to be in time for you?

McKinnel: I think so. I think so. There’s nothing to prevent work continuing in the meantime, and then an informed decision can be made when the commission is introduced.

Should the commission also be able to look at systemic problems, such as the use of prison informants, Nick, like the witnesses in the David Tamahiri trial?

Chisnall: Well, I imagine those kinds of issues will ultimately be heard as a part of a case, anyway. It’s certainly a major issue, and one that needs to be looked at. So for me, it’s a very positive thing to see that it will potentially have the powers to do that.

Between three and seven commissioners are likely; is that enough?

Chisnall: Yes, I think that’s probably— Seven, I’d prefer to see it towards the seven end of the scale, rather than three. I think it’s important that there be a variety of experiences on the panel.

Ok, we’ll leave it there, gentlemen. Thank you very much for coming in.

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