OPINION: Some may say you can't put a value on Teina Pora's loss of liberty after he was wrongly imprisoned for two decades, but Dr Chris Gallavin writes that we can try to do better than the $2.5m offered this week.
Teina Pora. Photo: TVNZ / One News
Justice is, at times, fickle.
Over the past days I have been vocal in expressing my disappointment at the level of compensation offered toTeina Pora by Cabinet for the 21 years he spent in prison for a crime he did not commit.
In response, many have said words to the effect that 'but you cannot put a value on his loss of liberty'. My retort to such a statement - a statement that rings in my head as saying 'so let's not try' - is 'well, we can give it a better shot than currently reflected in an offer of $2.5 million'.
This is a man whose life was destroyed at the age of 16, all because of inadequacies in the investigation and subsequent prosecution of his case.
In short, it might be tough to quantify a life lived unjustifiably behind bars, but we owe it to Mr Pora to give it a try.
Under New Zealand law there is no right to be compensated for a miscarriage of justice. But the need to compensate is not without strong foundation - the International Covenant on Civil and Political Rights establishes such a right under Article 14(6). New Zealand ratified this convention in 1978, although entering a reservation to Article 14(6). New Zealand advanced its commitment to the ICCPR in 1990 with the enactment of the New Zealand Bill of Rights Act, yet no mention of Article 14(6) was made.
While there is no obligation to pay, guidelines exist that set out the applicable criteria and processes for exercising a discretion to compensate. Given the basis upon which Pora's name was cleared by the Privy Council, it was always clear he would be successful in an application for compensation - the only question was the quantum of that compensation.
Over the past 15 years or so, the discretion to compensate has been exercised eight times. With a starting point of $100,000 for every year of imprisonment for both pecuniary and non-pecuniary losses, the guidelines could be said to be out of date.
However, their beauty is that they are discretionary. They are empowering and not delineating. Encouraging and not controlling. In Canada, the Attorney General noted of their guidelines that, "In certain cases, the interests of justice may require that the Crown exercise its discretion in accordance with the Guidelines, but equally, in other cases, they may require a result that departs from the Guidelines."
The same is applicable here. For me, discussion of inflation and its application to Pora's compensation figure is not the issue. The substantive figure is wrong and discussion of the application of inflation wrongly affirms the conclusion of the Crown that they are bound by the guidelines themselves.
Although police misconduct was not held to exist here, the fact remains that the investigative procedures were woeful. The prosecution of the case perpetuated these deficiencies and their approach post-conviction has significantly contributed to Pora being unfairly imprisoned for so long.
Let us stop with the talk of 'inflation'. Let us recognise the failings of the Crown, as innocent as they may be, and give this man the compensation he deserves.
By all means, let us update the guidelines, but do so affirming their empowering and not delineating authority.
* Dr Chris Gallavin is a professor and deputy pro-vice chancellor of the College of Humanities and Social Sciences at Massey University.
