The Royal Prerogative of Mercy

What is the Royal prerogative of mercy?

The Royal prerogative of mercy is an important constitutional safeguard in New Zealand's criminal justice system. It provides a special avenue for convicted persons to seek a review of their case where an injustice may have occurred. In New Zealand, the Governor-General, acting as the representative of the Queen of New Zealand, exercises the Royal prerogative of mercy. The prerogative of mercy can be exercised where a person claims to have been wrongly convicted or wrongly sentenced.

The Governor-General acts on the advice of the Minister of Justice. The Governor-General has power to grant a pardon, to refer a person's case back to the court under section 406 of the Crimes Act 1961, and to reduce a person's sentence. If a person's case is referred back to the court, the court will consider the case in a similar way to hearing an appeal.

When will a case be re-opened?

The Royal prerogative of mercy may be exercised to re-open a person's case when it is considered that a miscarriage of justice is likely to have occurred. The central question is whether there is a serious doubt about proof of the convicted person's guilt. While there are no rigid rules about this, in practice the following general guidelines are followed.

The Royal prerogative does not operate as another right of appeal. If a matter has been properly determined by the court system, with the opportunity for the parties to produce and test all relevant evidence, and to exercise appeal rights, final decisions by judge and jury will almost certainly not be interfered with.

A case will normally be re-opened only when new information comes to light that for some reason was not able to be properly examined by the court process, and it is convincing enough to raise a real doubt about the reliability of the person's conviction or whether the correct sentence was imposed. The categories of matters that could point to a likely injustice are not fixed. However, there should be a good reason why the new evidence or information was not produced at trial or on appeal. It may be because a vital witness has just been discovered. Or an important witness changes his or her story. A further example is where new scientific tests produce relevant results that raise a question about the accuracy of evidence given at trial.

Where it appears that a miscarriage of justice may have occurred, it is more likely for a case to be referred back to the courts than for a pardon to be granted. The grant of a pardon is extremely rare and is usually considered only where there is compelling evidence that a person could not properly have been convicted.

Who can apply?

Any person who considers that an injustice has occurred in his or her case can apply to the Governor-General to have the case reviewed.

However, a person should usually have appealed to the appropriate court or tried to appeal first. Even if a person is outside the normal time for appealing, an application can be made to the appropriate court to hear an appeal out of time. A convicted person should seek legal advice about this. There would usually need to be special circumstances for a case to be reviewed that has not first gone through the appeal process.

An application can be made by a convicted person or by someone on the convicted person's behalf, for example a lawyer. A lawyer can advise on the merits of making an application and help collect relevant information and make the arguments that the application will be based on.

How to apply?

Applications for the exercise of the Royal prerogative of mercy should be sent to:

Official Secretary to the Governor-General Government House
Private Bag 39995
Wellington Mail Centre
Lower Hutt 5045

An application does not need to take any particular form. However, it will help the review of a person's case if an applicant can supply the following information:

• Full details of the conviction or sentence and the circumstances surrounding it;
• Full details of any further court proceedings, including any appeals;
• The grounds on which the petitioner applies for the exercise of the prerogative;
• Any documents or papers supporting the application, including sworn affidavits;
• Any other information relevant to the case, including a record of the proceedings.

What will happen to the application?

Once the Governor-General receives an application, it is referred to the Minister of Justice with a request for the Minister's formal advice. The Minister's office will forward the application to officials at the Ministry of Justice for their consideration. The Ministry will contact applicants at an early stage to tell them about the next steps and let them know what to expect.

The Ministry of Justice will review all the information and submissions supplied in support of an application. Sometimes additional information will be gathered or further inquiries will be made. On occasions, a senior lawyer may be appointed to help with the consideration of the application. At the end of this process, the Ministry will provide a report to the Minister of Justice. The Minister of Justice will then decide what advice to give the Governor-General.

When the Governor-General has considered the Minister's advice, the Official Secretary will write to the applicant with the decision.