Legal Beagle by Graeme Edgeler

But the distinction is nonetheless there, and any claim that may be made by Teina Pora falls outside the guidelines, and thus may require proof of exceptional circumstances.

Might a possible "exceptional circumstance" be the fact that the law is so badly written as to not include the current situation, which shouldn't really be exceptional? (assuming that the absence of mention of Privy Council or Supreme Court is an oversight and not intentional?)

Also, do you have an opinion on whether the fact he "confessed" (falsely) diminishes his claim?

I'm not trying to suggest he doesn't deserve (lots of) compensation... but maybe not as much compensation as someone who'd been wrongly convicted, served 20+ years, but hadn't gotten themselves into the mess in the first place by their own actions?

Was Teina Pora one of many victims of a dogma that dictates the need to be 'seen to be doing something'?

Also, do you have an opinion on whether the fact he "confessed" (falsely) diminishes his claim?

I imagine it will be used that way, however, it's possible any reduction for that might be offset by an increase because of his additional vulnerability and disability.

Might a possible “exceptional circumstance” be the fact that the law is so badly written as to not include the current situation, which shouldn’t really be exceptional? (assuming that the absence of mention of Privy Council or Supreme Court is an oversight and not intentional?)

I note that Minister of Justice Amy Adams has reiterated her view that the requirement for exceptional circumstances doesn't apply to Pora.

Should we not in this case expect our elected representatives to correct the law so that those other courts are not excluded? I mean (forgive me if I’ve got this wrong) but I was under the impression that they jumped lickity-split to get the GCSB laws changed.

The guidelines do not mention the Privy Council. I think the distinction that the guidelines make is a stupid one, especially in light of the creation of the Supreme Court, which is also not mentioned.

I'd go further. If Cabinet tried to argue that Pora's case is "outside its guidelines" because the guidelines in question somehow neglected to include the highest courts in NZ's curial hierarchy it would be so completely fucking outrageous that every lawyer in NZ ought to march on the Beehive and burn the place to the ground.

Metaphorically speaking, of course.

For what it is worth, I also missed what the guidelines actually say in full, instead relying on the MoJ's summary of the matter: http://pundit.co.nz/content/why-having-no-retrial-for-teina-pora-matters

Court napping...

...if the conviction is quashed in the High Court, Court of Appeal, or Courts Martial Appeal Court.

if the Supreme Court and the Privy Council can overturn any ruling from the above three august bodies, then they must be tacitly included in the ambit of the guidelines.
Surely, or am I missing something?

I mean (forgive me if I’ve got this wrong) but I was under the impression that they jumped lickity-split to get the GCSB laws changed.

Yes, and this could easily be a bi-partisan thing, since it just looks like an out of date law that just got tested.

FWIW, I think he should get compensation and the only question is about how much.

It's not a law. The Cabinet Office manual can simply be changed by Cabinet at any time. Doesn't have to go through Parliament.

Yes, and this could easily be a bi-partisan thing, since it just looks like an out of date law that just got tested.

The Cabinet Guidelines are not law. There is no law governing the giving of compensation - the Government has set these Guidelines (note that - Guidelines) up as a way of deciding whether or not to give "ex gratia" payments (i.e. payments it makes out of the goodness of its heart, rather than because the law makes it do so).

This means it can ignore the fact that the Privy Council/Supreme Court got left out of the written version of its Guidelines and apply them anyway (in a way it couldn't if these were "law"). Which is what it appears Amy Adams is going to do. Which is a good thing and to her credit.

But more generally, compensation in these situations should be a legal right, not something that the Government gives or doesn't give according to its own "rules" (which it can change and/or ignore whenever it wants). That would require an Act of Parliament, of course ... hopefully as a part of wider move towards setting up some sort of wrongful conviction review body.

OK, an out of date guideline for which bi-partisan support might be found, then. It does, after all, have to be upheld by the next bunch, or changed, and it's best not to change this kind of thing all the time. Sheesh, lawyers....talk about the spirit of the comment vs the letter :-)

So what you're saying is that all is well with this case but the next one that comes along that the Government has a bee in its bonnet about could be denied compensation. Yuck.

@Andrew and @Graeme – could a decision on compensation be subject to judicial review? Or is it absolutely discretionary?

could a decision on compensation be subject to judicial review?

I believe so, although the result would be a direction to take the decision again, at best. David Bain judicially reviewed an aspect of the process that the Government used in its earlier consideration of his claim.

"But more generally, compensation in these situations should be a legal right, "

I am not saying you are wrong but can you point another country or countries that have such a law.

I am not saying you are wrong but can you point another country or countries that have such a law.

Afraid I just don't know, I suspect there are probably some, and certainly many that don't make it quite as hard that we do.