Wrongful conviction compensation: What David Tamihere could get from the Crown
David Tamihere is mulling whether to pursue compensation from the Crown after prosecutors today said they wouldn’t seek a retrial on murder charges that he spent 20 years in prison for. In this story, first published in March this year, Audrey Young explores the hurdles he’d need to clear to get a payout.
The prospect of David Tamihere getting compensation from the Government after his murder convictions were quashed by the Supreme Court is by no means a certainty.
He would have many hurdles to clear under the guidelines governing such payments.
But if he cleared them, then under the established formula, he could be given at least $3 million and as much as $5m – and receive a statement of innocence and apology from the Government.
After Crown Law decided not to pursue a retrial, following the Supreme Court judgment in March, Tamihere will be eligible to apply for compensation for wrongful imprisonment. He could also be eligible if there was a retrial and he was acquitted. He served about 20 years until his release in 2010.
The Supreme Court judgment relates to a Court of Appeal decision in 2024.
The Court of Appeal found the admission of perjured evidence by a former prisoner may have affected the jury’s original verdict and was a miscarriage of justice.
But the judges exercised a proviso under the Crimes Act that allows such appeals to be dismissed if the court is satisfied beyond a reasonable doubt of the defendant’s guilt.
The Supreme Court found the proviso could not be used when a trial had been unfair, and that following the discovery after the trial of Sven Urban Höglin’s body well away from where the prosecution had originally claimed it would be, there were too many untested questions about the Crown’s new theory of what had happened for the Court of Appeal to reach a conclusion about guilt under the proviso.
If David Tamihere applied for compensation, Justice Minister Paul Goldsmith would then decide whether the application merited further assessment.
If he decided it did, he would appoint a top lawyer or a former judge to assess the case in detail.
That person would have to find that, on the balance of probabilities, Tamihere was innocent of the murders of Swedish backpackers Heidi Paakkonen and Höglin in 1989.
And under the guidelines, a Cabinet receiving the advice would have to be persuaded that any compensation was in the interests of justice.
It does not necessarily follow that the quashing of convictions leads to a finding of innocence.
David Bain, who was acquitted for the 1995 murder of five family members after a retrial in 2009, is a case in point.
Ian Callinan, a former judge of the High Court of Australia (equivalent to New Zealand’s Supreme Court), found that Bain had not established his innocence on the balance of probabilities.
Callinan had been commissioned after two previous reports, one by a former Canadian Supreme Court judge, Ian Binnie, who found Bain was innocent on the balance of probability, and another by a retired New Zealand judge, Dr Robert Fisher, who found the Binnie report should not be relied upon.
Bain, who had been in prison for 13 years, and his supporters planned to challenge the Callinan findings legally, so the Government decided to settle the dispute with a $925,000 ex gratia payment in recognition of the time and expense involved in the compensation process.
Some of the more recent high-profile compensation payments have included one of $3.5m to Teina Pora in 2017, and one of $4.9m to Alan Hall in 2023.
Teina Pora originally received $2.5m for the wrongful conviction of the 1992 rape and murder of Susan Burdett, for which he served 20 years in prison.
The Cabinet in 2016 declined a request from former Judge Rodney Hansen to adjust the amount for inflation. But one of the first actions of Andrew Little as Justice Minister in 2017 was to bump up the payment to $3.5m for an inflation adjustment.
Hall spent nearly 18 years in prison after being convicted of murdering Arthur Easton in 1986. The Supreme Court quashed his conviction in 2022 and directed that a verdict of acquittal be entered.
The most recent payout was one that was made quietly last year by Goldsmith with no press statement or public apology.
It was for $533,800, and a statement of innocence and apology was made privately by Goldsmith on behalf of the Government to a man known as Mr Z, who had served 2.4 years in prison.
He had been convicted in 2014 of rape, assault, aggravated burglary and breaching a protection order and sentenced to 11 years, three months. In 2016, the Court of Appeal allowed his appeal against all convictions after evidence from a telecommunications expert raised doubt that the complainant had been at home at the time of the alleged rape.
The guidelines under which payments are calculated are titled “Compensation Guidelines for Wrongful Conviction and Detention”.
When the Government adopted them in 2020, it agreed to review the monetary amounts every five years. The guidelines were last updated in February 2023.
The Government is clear that compensation payments are not a legal entitlement, that any acceptance of compensation means the applicant will forgo any other claims against the Crown related to the conviction and that there is no right of appeal against any assessment.
The guidelines set out what can be compensated, as follows:
Annualised compensation in respect of wrongful imprisonment covers:
- Non-pecuniary losses (particularly for loss of liberty) and minor pecuniary losses while imprisoned for a wrongful conviction at an annual rate of $150,000;
- Loss of livelihood while in prison following conviction, up to $100,000 a year;
- Where applicable, non-pecuniary losses while on restrictive bail or parole following conviction at an annual rate of $75,000 a year.
Additional payments, where relevant, include:
- A transition allowance of up to $50,000 to aid reintegration into society and return to work;
- Recovery of legal and other professional fees incurred in challenging the wrongful conviction and pursuing a compensation application;
- An amount to compensate for significant pecuniary losses between $50,000 and $250,000.
The total amount of the annualised compensation and any additional payments can then be adjusted upwards or downwards by up to $150,000 to reflect any aggravating or mitigating features relating to the person’s prosecution or conviction.