Compensation and apology for wrongful conviction

  • Nathan Guy
Justice

The Government has agreed to pay $351,575 compensation to Aaron Farmer for wrongful conviction and imprisonment, the Associate Justice Minister Nathan Guy has announced today.

Mr Farmer was convicted of rape in 2005 and spent two years and three months in prison. His conviction was quashed by the Court of Appeal and a retrial ordered after the court found his trial lawyer had not followed up on a potential alibi witness. He was discharged before the second trial began when a new method of DNA testing, not available at the time of his trial, confirmed he was not the offender.

“Hon Robert Fisher QC was asked to examine Mr Farmer’s case and he reached the view that Mr Farmer is innocent of the offence beyond reasonable doubt. The Crown accepts Mr Farmer’s innocence and unreservedly apologises to Mr Farmer for the devastating wrong he has suffered,” says Mr Guy.

“The payment compensates Mr Farmer for the non-pecuniary losses he suffered as a result of the wrongful conviction and imprisonment. These losses include his loss of liberty, loss of reputation, loss or interruption with family or personal relationships, and mental and emotional harm. The payment also acknowledges that some of the questions or suggestions put to Mr Farmer during his police interview were criticised by the courts.

“While the Crown’s apology and offer of compensation can never completely make up for the trauma and loss Mr Farmer has suffered, I hope it can go some way in helping him and his family put this very difficult experience behind them.

“I believe that New Zealanders on the whole enjoy a fair and effective criminal justice system. However, the system is not infallible. When mistakes like this happen, the Government must do its best to put things right. This compensation payment to Mr Farmer shows the Government’s commitment to acknowledging and addressing mistakes when they do occur.”

Cabinet papers and Hon Robert Fisher QC’s report available here: http://www.justice.govt.nz/publications/global-publications/c/compensation-for-aaron-farmer

Further Q&A

What is the background to Mr Farmer’s claim for compensation?

Mr Farmer was found guilty of the September 2003 rape of a woman in Christchurch. He was convicted on 1 April 2005.

On 8 June 2007, the Court of Appeal quashed Mr Farmer’s conviction and ordered a retrial, finding that Mr Farmer’s trial counsel had failed to contact a potential witness whose evidence provided a partial alibi for Mr Farmer.

Before the retrial went ahead, further testing by the Crown of DNA samples using a new method of DNA profiling not available at the first trial, proved Mr Farmer was not the offender. In addition, the complainant was unwilling to give evidence at a retrial. For these reasons, the Crown Solicitor decided not to proceed with the retrial and Mr Farmer was discharged in April 2008, having served two years and three months in prison.

Is Mr Farmer eligible under the Cabinet guidelines governing compensation for wrongful conviction and imprisonment?

Under Cabinet Guidelines introduced in 1998, eligibility is limited to those who-

  • (a)     have served all or part of a sentence of imprisonment; and either
    (i)      have had their convictions quashed on appeal, without order of retrial, in the High Court (summary convictions); Court of Appeal (including references under section 406 of the Crimes Act 1961); or Courts Martial Appeal Court; or
    (ii)     have received a free pardon under section 407 of the Crimes Act 1961; and
  • (b) are alive at the time of the application.

In addition to the eligibility requirements, compensation payments are only made to applicants who can prove on the balance of probabilities they were innocent of the crime for which they were convicted.

Mr Farmer is not eligible under the Cabinet guidelines because, when quashing his conviction, the Court of Appeal ordered a retrial.

How can the Crown compensate Mr Farmer if he is not eligible under the Cabinet guidelines?

The Crown has discretion to consider “extraordinary circumstances” claims that fall outside the Cabinet guidelines where it is in the interests of justice to do so. The discretion is exercised very rarely. Mr Farmer’s case is the first in which compensation has been paid under “extraordinary circumstances”.

Being able to establish innocence on the balance of probabilities is a minimum requirement, consistent with the Cabinet guidelines. There are stricter criteria for claims that fall outside the Cabinet guidelines, which include an applicant being able to establish their unequivocal innocence (i.e. innocence proved to the higher standard of beyond reasonable doubt).

The same test applies to David Bain’s application for compensation. Mr Bain’s application is being considered under Cabinet’s residual discretion as, like Mr Farmer, his case falls outside the Cabinet guidelines.

Has Mr Farmer been able to prove his innocence?

Yes. In Mr Farmer’s case, he has been able to prove his innocence to the higher standard of beyond reasonable doubt.

The Ministry of Justice referred the claim to Hon Robert Fisher QC for assessment. Mr Fisher concluded that the evidence available, including the new DNA evidence, established Mr Farmer’s innocence beyond reasonable doubt. On the basis of Mr Fisher’s assessment, Cabinet agreed to compensate Mr Farmer via the “extraordinary circumstances discretion available.

How was the compensation payment of $351,575 calculated?

The payment compensates Mr Farmer for non-pecuniary losses he suffered as a result of the wrongful conviction and imprisonment. These losses include his loss of liberty during the two years and three months he spent in prison, loss of reputation, loss or interruption with family or personal relationships, and mental and emotional harm. These losses are the same as under the Cabinet guidelines.

The payment reflects an amount of $150,000 per annum pro-rated to the two years and three months Mr Farmer spent in prison. The starting point for the annual rate is $100,000 – this was adjusted upwards in Mr Farmer’s case because of the serious impact of the conviction and imprisonment on him. The payment includes an additional $15,000 in recognition that some of the questions put to Mr Farmer during his Police interview were criticised by the courts for being unfair or misleading.

Successful applicants can also claim specified types of pecuniary losses arising from their wrongful conviction and imprisonment. In Mr Farmer’s case, he was unable to provide evidence of such losses.

Does the payment mean that the Government accepts some legal liability in relation to Mr Farmer’s conviction and imprisonment?

No. A compensation payment is made in the absence of any legal obligation. There is no legal right to compensation for wrongful conviction and imprisonment. Cabinet’s decision to make a payment in this case recognises that, while Mr Farmer has no legal remedies, it is still appropriate in the circumstances to compensate him for the wrong he has suffered.

How was the Police questioning “unfair”?

When interviewing Mr Farmer, the Detective’s questioning clearly suggested that Mr Farmer’s DNA had been found on samples from the victim and that his clothing matched the offender’s. Both suggestions were incorrect. The Detective’s questioning was criticised by the Courts. The Government accepts that the Detective’s questioning would have added to the non-pecuniary losses Mr Farmer suffered and therefore agreed that the compensation payment should expressly acknowledge this.

Since 2005, New Zealand Police has overhauled its interview policy and training, which is now regarded as up with the world’s best.

Does the Detective still work for New Zealand Police?

The individual remains with the New Zealand Police but no longer works as a detective. Any further inquiries should be made directly to the New Zealand Police.

How many claims for compensation are received and how many are successful?

About three or four claims are received each year. Most are declined as they do not meet the criteria for payment; usually the requirement to prove innocence to the necessary standard.

Since 1998 when the Cabinet guidelines were established, there have been four successful applications for compensation for wrongful conviction and imprisonment.

The most recent claim resulting in payment of compensation concerned three young women who were wrongfully convicted in 1999 of aggravated robbery in Auckland - Lucy Akatere, McCushla Fuataha and Tania Vini. They served about seven months in jail and in September 2006 received between $162,000 and $176,000 each, including about $135,000 for non-pecuniary losses.

Three other payments have been made under the Cabinet guidelines: David Dougherty ($868,729), M ($570,697) and F ($144,221).