Neil Sands
A proposal to stop convicted murderers being released on parole if they refuse to disclose the location of their victim’s remains risks “manifest injustice” and should be scrapped, The Law Association’s (TLANZ’s) specialist committees on parole and criminal law have warned.
The Concealment of Location of Victims Remains Bill – a private member’s bill from National MP for Bay of Plenty Tom Rutherford – passed its first reading last month and is being examined by Parliament’s Justice Select Committee.
Modelled on “no body, no parole” legislation passed in Australia and the United Kingdom, the bill amends the Parole Act so an offender is automatically denied parole if authorities do not believe he or she has cooperated satisfactorily with an investigation to locate their victim’s remains.
The bill would also amend the Sentencing Act 2002 to make lack of cooperation on the whereabouts of remains an aggravating factor at sentencing.
“We will no longer allow offenders to use silence as a final weapon against the people they have devastated,” Rutherford said when introducing the bill to Parliament. “For too long, murderers have been able to withhold the one piece of information that could bring grieving families some measure of peace.”
‘Arbitrary detention’ concern
TLANZ’s Parole & Prisoners’ Rights Law Committee acknowledged the bill’s intent in a submission to Parliament but said legitimate attempts to assist victims’ families did not justify a departure from fundamental principles governing sentencing, imprisonment and parole.
The committee said the bill “establishes an additional statutory barrier to release which would result in continued imprisonment in circumstances where the prisoner has otherwise satisfied the statutory requirements for release and is not an undue risk to the safety of the community”.
The committee said this was inconsistent with the guiding principles of the Parole Act, also citing a section 7 report from Attorney-General Chris Bishop which found the proposal breaches the Bill of Rights’ protection against arbitrary detention.
The submission said it would result in manifest injustice in cases where there was a wrongful conviction and the offender continued to insist upon their innocence.
“Miscarriages of justice have occurred throughout history,” it said. “The names Alan Hall, Peter Ellis, Teina Pora, Gail Maney, and David Dougherty remind us that every justice system has flaws and that the risk of miscarriages of justice is always present.
The committee said someone who was wrongly convicted of homicide would be unable to provide the location of remains because they never committed the crime.
“Under the proposed regime, that person could nevertheless face continued imprisonment because they cannot satisfy the [Parole] Board that they have cooperated satisfactorily. In this situation, a further injustice would compound the original miscarriage of justice.”
Fundamental protections
TLANZ’s Criminal Law Committee said the proposal would undermine the right to silence and the privilege against self-incrimination.
“Those protections are fundamental to the accusatorial character of the criminal justice system in New Zealand,” it said.
The committee said the bill would treat someone who was unable to provide information about the location of remains in the same way as someone who deliberately refused to supply the information.
It said the Parole Board would face a difficult task establishing the threshold of “satisfactory cooperation”, saying the prisoner may genuinely not have the required information, may have faulty recollection, or have unwittingly provided inaccurate information, or have cooperated fully but no remains were found.
“The fact that the information does not lead to the recovery of remains does not necessarily mean that the defendant failed to cooperate … These difficulties are not merely matters of drafting or procedure,” the committee said.
“They arise from the fundamental nature of the proposed regime, which seeks to attach a significant punitive consequence to a person’s inability or unwillingness to provide information which may, in some cases, be unknowable or unavailable to them.”
The Criminal Law Committee was also concerned that a person deemed to be uncooperative could face adverse consequences twice for the same conduct, once at sentencing and once when they came up for parole.
The New Zealand Law Society said in its submission that a study of similar legislation in Queensland concluded that no bodies had been found in 10 cases dating from 2017-2022, even though the offender was determined to have cooperated in six of the cases.
It said “no body, no parole” regimes had been ineffective in other regimes, including the United States and Britain.
“The Law Society has significant concerns about these proposals. In the society’s view, the bill is fundamentally flawed and should not proceed,” it said.
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