Johnston and Knight receive compensation for wrongful imprisonment

  • Simon Power
Justice

Cabinet has agreed to pay compensation to Phillip Johnston and Jaden Knight for their wrongful conviction and imprisonment in 2004, Justice Minister Simon Power announced today.

The men were jointly tried and convicted in 2004 for the arson of the Manawatu Hotel in Foxton. In 2005 their convictions were quashed by the Court of Appeal, and retrials ordered after the court found the trial judge’s summing up lacked adequate direction to the jury.

Mr Johnston was re-tried in August 2006 and found not guilty. Evidence which came to light after that retrial showed neither man was responsible. Mr Knight was discharged in February 2007 before his retrial began. Both spent 9½ months in prison.

Based on the new evidence, Police formally acknowledged the men's innocence and apologised to them and their families in March 2007, saying neither had committed the arson.

“The Crown, having considered the compensation criteria, accepts that both men are innocent of the arson and unreservedly apologises,” Mr Power said.

As the Minister of Justice, Mr Power apologised in writing on behalf of the Crown to Mr Johnston and Mr Knight, and then personally to Mr Knight and his family and to the family of Mr Johnston at a meeting in his office today. Mr Johnston declined an invitation to attend.

"I'm disturbed at the way the system treated Mr Johnston and Mr Knight," Mr Power said.

"The standards that New Zealanders expect of their justice system fell well short in this case."

The payments compensate them for financial and other losses resulting from their convictions and imprisonment.

Mr Johnston will receive compensation of $146,011 and Mr Knight $221,936. Their financial losses were assessed at close to $36,000 and $116,000 respectively. Mr Knight’s larger payment reflects his lost income and earning capacity.

The remaining portions of the payments recognise the men’s other losses, including loss of liberty, loss of reputation, loss or interruption with family or personal relationships, and mental and emotional harm.

“The compensation offered is an expression of the Government’s acknowledgment of what Mr Johnston and Mr Knight have lost and suffered," Mr Power said.

“I hope it goes some way to helping them and their families put this very difficult experience behind them.

“New Zealanders need to be confident that their criminal justice system is sound and effective, and an essential part of that is acknowledging when there is a breakdown in the system,” Mr Power said.

The Cabinet papers can be found here.

QUESTIONS & ANSWERS

What is the background to this claim for compensation?

Mr Johnston and Mr Knight were found guilty of the November 2003 arson of the Manawatu Hotel in Foxton. They were convicted in September 2004 and sentenced to six years’ imprisonment.

On 28 June 2005, the Court of Appeal quashed their convictions and ordered new trials, finding that the trial judge’s summing up lacked adequate direction to the jury.
Mr Johnston was re-tried and found not guilty in August 2006. Mr Knight’s retrial did not go ahead – he was discharged in February 2007 when new evidence came to light. The evidence showed that neither was responsible for the arson.

Based on the new evidence, the Police formally apologised to both men in March 2007, saying it was clear neither had committed the arson. The men each served 9½ months in prison.

Are the men eligible under Cabinet guidelines governing compensation for wrongful conviction and imprisonment?

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

  • Have served all or part of a sentence of imprisonment; and either:
    - 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
    - Have received a free pardon under section 407 of the Crimes Act 1961; and
  • Are alive at the time of the application.

In addition to the eligibility requirements, compensation payments are made only to applicants who can prove on the balance of probabilities they were innocent of the crime for which they were convicted. Mr Johnston and Mr Knight are not eligible under the Cabinet guidelines because, when quashing their convictions, the Court of Appeal ordered retrials.

How can the Crown compensate them if they are not eligible under the 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.

Being able to establish innocence on the balance of probabilities is a minimum requirement, consistent with the Cabinet guidelines. The criteria for claims that fall outside the Cabinet guidelines are stricter. To qualify as extraordinary, the circumstances must include a feature which takes the case outside the normal run of cases in which appeals have been allowed.

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

Have Mr Johnston and Mr Knight been able to prove their innocence?

The evidence that came to light after trial establishes that Mr Johnston and Mr Knight are innocent on the balance of probabilities. Their case also involves several additional unusual features, which make compensation appropriate in the circumstances. One of these features is that the Police have formally acknowledged the men’s innocence and continue to stand by that acknowledgment.

What is the evidence that came to light after trial?

The evidence relates to a Police investigation in respect of which offenders are still outstanding. I am not able to discuss the nature of the evidence. To do so would prejudice the maintenance of the law.

Can the Police be criticised for not discovering the new evidence earlier?

The Police could not reasonably have been expected to secure the new evidence any earlier than they did.

How were the compensation payments calculated?

The payments compensate the men for financial and non-financial losses suffered as a result of their wrongful convictions and imprisonment. Mr Johnston’s payment comprises $35,929 for his financial losses and $110,082 for his non-financial losses. His financial losses included legal, travel, and expert witness costs.

Mr Knight’s payment comprises $115,785 for his financial losses and $106,151 for his non-financial losses. His financial losses include losses similar to those incurred by Mr Johnston, but also include amounts for loss of income and earning capacity.

The payments for non-financial losses include an assessment of the loss of liberty, 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 payments reflect amounts of $140,000 (Johnston) and $135,000 (Knight) per annum pro-rated to the time they spent in prison. The starting point for the annual rate is $100,000 – this was adjusted upwards because of the significant impact on the men of their convictions and imprisonment.

Does the payment mean that the Government accepts some legal liability in relation to the men’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, though Mr Johnston and Mr Knight have no legal remedies, it is still appropriate in the circumstances to compensate them for the wrong they suffered.

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

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

Since 1998, there have been five successful applications for compensation for wrongful conviction and imprisonment. This includes the recent payment to Aaron Farmer, whose case also fell outside the Cabinet guidelines. Mr Farmer received $351,575. The remaining four applications were under the Cabinet guidelines: David Dougherty (who received $868,729), M ($570,697), F ($144,221), and the application by Lucy Akatere, McCushla Fuataha, and Tania Vini, who received between $162,000 and $176,000 each.