Friday, March 6, 2015

Pora Privy Council ruling, a close run decision?

https://www.jcpc.uk/decided-cases/index.html

The decision favoring Pora's conviction being quashed may not be as fragile as it seems. On the face of it what was expected by me at least to be a resounding favorable decision for Pora. However, the reality is that the appeal got home on the basis that the point which the Privy Council gave credence, and importantly so, to a question any Juror would have, why did he confess.  The PC accepted that he may have confessed due the effects of his mother drinking heavily during the pregnancy leaving him with identifiable problems, some of which, a Jury might consider as an explanation for his confession to a crime a large portion of NZ believe he did not commit.

Underlying that single point, which I don't know how was dealt with on earlier appeals, is the fact that while Pora had an apparently strong case for appeal, much of it based on common sense, the doubts that he undertook the crime with an older, more worldy gang member and convicted lone wolf serial rapist, and as fragile as that made this conviction look - it remains that Pora would still stand convicted today if not for potential answer being given to the basic question - why did he confess?

Of the few PC decisions I have read this one had no summary of facts and circumstances that took a reader through a lengthy tour of the case toward a decision. To my mind it simply established that there was an answer to a question that a jury were likely to have in their minds. That is what I mean by the appearance of a close run decision, no doubt because the PC considered, obviously rightly, that any Jury would make up its mind as to the credibility of paid witnesses, the likelihood or otherwise of Pora 'teaming up' as a teenager with a man, from a different gang over 20 older than he and so on.

Again I am struck by what NZ loses with the right to the Privy Council gone. In a few short years, three lots of murder convictions have been set aside in cases our own Courts were not able to remedy. While we now have a new superior Court, the fact is that it still sources Judges from the same pool which has resulted in a number of serious Miscarriages of Justice not being put right. The argument traditionally was that NZ needed to chart its own legal waters, while time has shown we can and do chart our own legal waters we can and still would benefit by an association with the Privy Council. We can have our own Supreme Court and still allow petitions to the Privy Council for leave to appeal, and continue with our Judges sitting on the PC from time to time which has happened for many years. It seems the Pora case and others show that our relatively young legal system too soon wanted to 'grow up' and be independent, when the argument should never have been about legal independence at all, rather about drawing from the deep and living history of the Law many centuries older than ours.

But as to the re-trial or potential re-trial of Pora. I believe there has never been such a dilemma facing The Crown with what appears on the face of it, trying Pora again and still being left with the natural conclusion that highly probably the gang member twice tried for the same murder, Malcom Rewa, will never be convicted. Alternatively to that, not trying Pora and leaving the country with the dissatisfaction that Rewa escaped conviction. Or thirdly possibly trying Pora again, having first sought evidence confirming the diagnosis accepted by the PC of Pora having perhaps suffered from Fetal Alcohol Spectrum Disorder and calling such evidence at the outset of the trial, then after cross examination and assuming that the opinion is consistent with that which the PC based its decision on -  seeking leave of the Court to withdraw the charge. In this manner, or in some way to the same affect, Pora would be entitled to claim for compensation and an possibly an apology but probably more importantly in terms of the public interest Rewa could be retried in such a manner that there were no distractions for the Jury that someone else, according to the Crown, was also involved. Rewa would present as having admitted having 'sex' with the deceased and need to prove a defence that someone else was responsible for her death. 99% of the public it could be safely said wouldn't  believe that defence for a second.

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