Report No. 277

F. New Zealand

3.39 In New Zealand, wrongful conviction and imprisonment is addressed via compensation granted ex-gratia by the State. These ex gratia payments are in accordance with the Ministry of Justice's 'Compensation for Wrongful Conviction and Imprisonment (May 2015)' ("Guidelines"). These Guidelines are based on the 'Cabinet Criteria for Compensation and Ex Gratia Payments for Persons Wrongly Convicted and Imprisoned in Criminal Cases' (Ministry of Justice, 1998). The said Guidelines cover both the issue of whether or not someone receives the compensation, and how much compensation they receive.

3.40 Under the Guidelines, a person is eligible for compensation if he is imprisoned following a wrongful conviction that is subsequently set aside; and is, at a minimum, innocent on the balance of probabilities. In addition to the foregoing, claimant must

(i) be alive at the time of application;

(ii) have served all or part of a sentence of imprisonment;

(iii) have received a free pardon or have had their convictions quashed on appeal without order of retrial.

3.41 The Guidelines provide for three categories of compensation for successful claimants:

(i) payments for non-pecuniary losses following conviction - based on a starting figure of $100,000 for each year in custody.

(ii) payments for pecuniary losses following conviction.

(iii) a public apology or statement of innocence.

3.42 Where factors taken into consideration with respect to nonpecuniary losses include: loss of liberty, loss of reputation (taking into account the effect of any apology to the person by the Crown), loss or interruption of family or other personal relationships, and mental or emotional harm. And, for pecuniary losses include: loss of livelihood, including loss of earnings, with adjustments for income tax and for benefits received while incarcerated; loss of future earning abilities; loss of property or other consequential financial losses resulting from detention or imprisonment; and costs incurred by or on behalf of the person in obtaining a pardon or acquittal. The Guidelines also lay down the procedure for making a claim thereunder.

3.43 Compensation for wrongful conviction though not germinating from a statutory right in New Zealand, and only given by the Government ex-gratia, is frequently invoked and resorted to. In this respect, the 2016 case of Teina Anthony Pora is worth a mention, where the claimant was wrongfully convicted of rape and murder, and spent 21 years in prison. Pursuant to the Guidelines, the claimant was paid a compensation of about $2.52m (towards non-pecuniary and pecuniary losses) by the Government of New Zealand for wrongful conviction and incarceration.36