'Our justice system is a wrecking ball': Convictions cleared, but has there been justice?

Two men who successfully fought to clear their names of convictions - one imprisoned for years where he was scalded with hot water, beaten and operated on for cancer - share their experience of the justice system and how they continue to fight for compensation. Hazel Osborne reports.

Daniel Spence spent four years, six months and 17 days in prison.

During that time he was beaten, scalded with boiling water and operated on for prostate cancer - but he should never have been there in the first place.

The man's rape convictions were officially quashed in 2017, but his fight for justice continues five years after his release from the country's only maximum-security prison - a place he describes as "hell".

Spence, not his real name, says the justice system destroyed his life, and chronic illness from the stress of his case has meant in the years leading up to his retirement he's spent nearly $200,000 from what was meant to be his nest egg.

"They've absolutely destroyed my life," he told NZME. "I'm trying to get justice and I'm still at it."

His case has been looked into by some of the country's top lawyers, and his application for compensation has taken five years and counting.

A compensation application was made to then Justice Minister Amy Adams in 2017, but no progress was made until Andrew Little appointed Julie-Anne Kincaide, KC, in September 2020 to assess his claim.

The comprehensive assessment process, which was described by one lawyer as a full trial but "on the books", was completed by Kincaide in March 2022 and was submitted to the Ministry of Justice.

The ministry made recommendations on her findings to the Minister of Justice Kris Faafoi, but Spence is still waiting for an in-chambers discussion determining the fate of his compensation claim by the current Justice Minister, Kiri Allan.

Spence was found guilty of rape by a jury in 2014, and sentenced to just over 11 years' imprisonment.

He had already spent two years on remand, a limbo land for people awaiting a resolution in their case.

"It is absolute torture [on remand]... it absolutely drives you insane."

Every day in prison was like a scene from a horror film, one where violence behind bars was commonplace, according to Spence.

He says he spent 14 days on a hunger strike in the hopes someone would listen.

At trial, his alibi - that he was at university studying with fellow students - wasn't believed, despite evidence given by six witnesses.

Cellphone polling data was a vital piece of evidence to support his claim he was at the university campus at the time of the alleged rape.

The information was inconclusive at the time, and the jury was told the evidence was "basically neutral".

When Spence came to appeal, new evidence was admitted to the court from two telecommunication experts that found his accuser, a woman known to him, was not home at the time when she alleged he had attacked her.

The Court of Appeal said in their view there was a "real risk of a miscarriage of justice" because neither party during Spence's trial acknowledged the significance of the polling data.

A retrial was ordered by the court, but the Crown declined to pursue a second trial by 2017.

Spence is one of close to 900 people who have had a conviction quashed, or quashed and remitted, in the past decade.

Quashed means to have the charges fully dismissed. Quashed and remitted means further engagement with the courts after a successful appeal - so, for example, a retrial could be ordered.

While a handful of high-profile cases like Alan Hall, Teina Pora, and Peter Ellis are well-known pillars in the bastion of miscarriages of justice, most go unnoticed.

The fight for justice, and often compensation, is a quiet battle.

Elizabeth Hall, lawyer and co-founder of Te Matakahi Defence Lawyers Association, said the justice system leaves life-long impacts for those who go through it, and it needs to change.

"I think this concept that someone could then just have their convictions quashed and life goes back to normal is just so grossly inadequate," Hall said.

"Our justice system is a wrecking ball in people's lives, everybody's lives."

Ministry of Justice statistics released to NZME show 893 people have had a total of 2303 convictions quashed, or quashed and remitted, since 2012.

Of those "sexual assault and related offences" was by far the highest number, with 182 people cleared of 661 convictions.

The Criminal Cases Review Commission (CCRC), set up in 2020 for people who had exhausted all appeal options through the courts, has had 340 applications in the 2 1/2 years since it was established.

Then Justice Minister Andrew Little gave the commission the green light, but with the threshold for cases so high, the wheels of justice turn slowly.

The very first case has been referred back to the courts for further consideration, but hundreds of others still await an outcome.

Around 107 of the total number have been "completed and closed", meaning they didn't meet the requirements in the interest of justice to refer the cases back to the appellate courts.

Like Spence, this process is in the hands of others as the remaining people await an outcome.

Spence said it took private investigators and expert witnesses hired out of his own pocket to finally have his name cleared, but compensation is yet to be granted.

Steven's story

Spence is not alone in facing extreme financial, emotional, and physical hardship from his struggle with the justice system.

A man and his wife, who both have permanent name suppression, spent their life's savings - including their Kiwisaver - fighting his convictions, that were eventually quashed in 2019.

Steven (not his real name) was shellshocked and speechless when a jury delivered a guilty plea at his 2017 rape trial, the second in his case after police failed to disclose documents at the first, causing a mistrial.

Evidence presented at trial, including the physical description the complainant gave of her alleged rapist, didn't match the accused.

Between then and the 2017 retrial, "substantial changes made by the complainant to her expected evidence then resulted in the amendment of some charges at trial," Justice Kos of the Court of Appeal said in the decision quashing Steven's convictions.

The court later described this deviation as "substantial and troubling" and said the trial judge had misdirected the jury on the inconsistency in the statements.

Given the circumstances, Justice Kos said a retrial would have been ordered by the courts, however, the Crown "expressly advised" that a retrial was not sought.

Steven spent six weeks in prison, where he says his life was threatened by gang members before he was released on bail awaiting his appeal, which would take another two years to be completed.

The courts admitted Steven's prosecution should have never progressed, despite his lawyers attempting to stop it three times. But despite that, a 2020 decision application for costs was declined.

"The Crown concedes this appeal must be allowed and that no retrial should be ordered," Justice Kos said in the court minutes.

"In short, the charges ought to have been withdrawn from the jury at trial and the prosecution stayed."

Sitting in the dock was never a place Steven thought he would be in his life. His only other court experience was from when he was a teen, facing a charge for driving through a red light on his motorbike.

It was not just Steven and his legal team who believed there may have been a miscarriage of justice - a juror contacted the courts, concerned they had made a mistake.

The juror emailed the District Court the month after the verdict, having engaged in counselling sessions.

They said they were making contact "in an attempt to resolve these issues for [themselves] as well as possibly preventing a miscourse [sic] of justice".

But contact between the juror and the courts fizzled out and the matter went no further.

Slow progress

Spence and Steven are just two out of hundreds in the past 10 years who have fought and succeeded in quashing their convictions.

But what happens when all options are exhausted for those still fighting to clear their name?

Despite being established in 2020, the Criminal Cases Review Commission has only just recently made its first referral back to the courts.

Progress has been slow and the percentage of resolutions sits in the far-stretching shadow of outstanding cases.

When asked why the delays have been so significant, CCRC chief executive Parekawhia McLean said the threshold for referring cases is high, and most that come before the commission were complex.

"Cases often create large files across multiple agencies and individuals, which takes time to source and collate," she said.

"Those investigating cases must manage a variety of issues related to privacy, legal privilege, and access to sensitive material. Resourcing of this work is often an issue."

The current Justice Minister Kiri Allan said the CCRC faces unprecedented demand for its services, but she is satisfied with how it has adapted in the face of the fast-growing number of cases.

In its first year alone it received 221 applications. To date there have been 340 applications to the commission - 232 are active, 18 are in full investigation, 107 have been completed and 214 require further assessment.

According to McLean, each application is reviewed by a specialist investigator and legal staff. Following that, it is reviewed again by commissioners before a decision is made.

"If someone thinks they have been wrongly convicted or unfairly sentenced, they can apply to the CCRC to have their case reviewed," Allan said.

However, the CCRC must be satisfied a referral is in the interests of justice, considering whether the applicant has exhausted appeal rights, fresh evidence and the likelihood of success.

Allan said in 2022 the commission adjusted its process to a triage system so the interest of justice is considered at an early stage of assessment.

In response to the unprecedented number of cases, around six fulltime staff members have been employed in recent months to work through applications.

When the courts get it wrong

Elizabeth Hall, who has represented people in cases where there has been a miscarriage of justice, believes the criminal justice system in New Zealand needs a complete overhaul.

Hall says public perception of the roles police, the courts, lawyers and defendants play in the criminal justice system creates inaccuracies and cloaks the process in bias.

The public sees the justice system as the "admin and paperwork" that follows an arrest, something Hall said should not be the case.

She discussed the landmark decision this year of Alan Hall, who isn't related. After 37 years of fighting to clear his name of a murder conviction and spending nearly two decades behind bars, had his conviction quashed when the Supreme Court ruled he had suffered a severe miscarriage of justice.

"It's good these conversations have started but it would be totally wrong for the Crown to hold up Alan Hall as the pinnacle of what went wrong when things are going wrong every single day up and down the country," Hall said.

"Anyone who has spent time in the criminal justice system is deeply affected by it."

The experienced defence lawyer has called for an inquiry, or "culture shift", into overhauling the system as it stands, to create something that is fair, humane, and accurate.

"I think there needs to be a widespread inquiry into the criminal justice system, the problem pressure points can be identified, and procedures and protocols can be set up to remedy that.

"We do need to take a good hard look at every stage of the criminal justice process," she said.

Why have the courts denied compensation?

In Steven's case, the Court of Appeal said in 2020 that the legal costs for the trial incurred were out of their jurisdiction and could not make a judgment.

Steven and his wife estimate the legal costs for the trials sit at $107,000, not including any loss of income while awaiting and undergoing trial, as well as time in prison and the subsequent years appealing.

The remaining costs of his appeal, after his legal aid debt was waived, are estimated by the couple to be around $36,000 and although the appeal costs were in the Court of Appeal's jurisdiction, this claim was also declined.

"In our view, there must be something significantly out of the ordinary to justify an award of costs on a criminal appeal," the 2020 decision said.

"Success does not of itself justify such an award."

The Justice Minister said there is no legal right for individuals to receive compensation from the government for wrongful conviction and imprisonment.

"Not every person who has their conviction quashed is entitled to receive compensation," Allan said.

However, compensation can be paid at the Government's discretion, she said, under the "Compensation Guidelines for Wrongful Conviction and Imprisonment".

Spence is still fighting for compensation in the hundreds of thousands. He estimates it has cost him upwards of $180,000 fighting to clear his name, and now to seek compensation.

"Until I get some sort of satisfaction from a Government that pays me compensation it's going to absolutely ruin me," he said. "It's been absolutely atrocious."

The financial toll of the justice system is clear in both men's cases, but Spence said if he didn't have access to funds through a family inheritance the reality of his case would be different.

"If you have to rely on legal aid, and you don't have the money, you're over," he said.

The waiting game

Spence said the justice system has left him a wreck. He has finished his degree but can't work because of health issues.

"They've absolutely destroyed my life and I'm now quite ill from the stress of it, and suffering, and can't work."

He believes he has suffered a severe miscarriage of justice.

"It's like in this country you're guilty until they've proved you guiltier," he said.

His journey to clear his name and be awarded compensation includes a paper trail of evidence and court documents "miles and miles long".

Steven said the gauntlet of the criminal justice system pushed he and his wife to their breaking point.

"I struggle to see how a system that is meant to be full of these smart legally trained people, could allow something that doesn't make sense."

Both have attended counselling, and Steven's wife said she's had insomnia and nightmares for five years. They have moved on from sadness, but said they are now "angry at the universe".

"They say you need to move on and forgive and forget - it sounds great but we can't," she said.

* This story originally appeared in the New Zealand Herald.