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What is the royal prerogative of mercy and why is it so rare?

by Donna Chisholm / 12 October, 2018

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Arthur Allan Thomas. Photo/NZ Herald/Greg Bowker

Few cases are sent back to court under the royal prerogative of mercy, and the granting of pardons is even rarer.

The royal prerogative of mercy is designed as a safety net in potential miscarriages of justice for people who’ve been convicted of an offence but have exhausted the appeal process. It’s exercised by the Governor-General on the advice of the Government. It can result in a pardon – although this is very rare – or referral of the case back to a court for further consideration. About 10 applications are lodged each year and only about 9% succeed in a referral back to court. Of about 160 applications lodged between 1995 and 2017, the prerogative of mercy was exercised 15 times.

Notable cases include:

1979: Prime Minister Robert Muldoon pardons Arthur Allan Thomas and awards him $950,000 compensation for the nine years he spent in jail after the 1970 murders of Jeannette and Harvey Crewe in Pukekawa, south of Auckland. The pardon follows an application for the prerogative of mercy, and a report by Robert Adams-Smith QC, which finds “an injustice may have been done”.

1996: David Dougherty’s conviction for raping his 11-year-old neighbour in West Auckland in 1992 is referred back to the Court of Appeal, which orders a retrial at which Dougherty is acquitted of rape. Another man, Nicholas Reekie, is later identified by DNA as the attacker, and Dougherty receives an apology from the Government and $868,000 compensation.

1998: The 1993 Christchurch Civic Creche sex-abuse convictions against Peter Ellis are referred back to the Court of Appeal, but the following year, the court dismisses the appeal. Two further applications are unsuccessful.

2000: The Governor-General refers some questions in the David Bain case to the Court of Appeal after supporter Joe Karam’s prerogative of mercy application in 1998. The court ultimately dismisses the appeal in 2003. The Privy Council later orders a retrial, and in 2009, Bain is acquitted on all five counts of murdering his family in Dunedin in 1994.

2002: Justice Minister Phil Goff recommends that the expenses-related fraud convictions of former Whanganui police superintendent Alec Waugh be referred to the High Court, where the convictions are quashed. Waugh later wins a $1 million payout from the Employment Court.

2004: Rex Haig’s conviction for the murder of Mark Roderique, in 1995, is referred back to the Court of Appeal on his second prerogative of mercy application. The court quashes the conviction in 2006, but a QC’s report recommends against compensation. Haig dies in 2017 before a second bid for compensation is resolved.

2009: The Ministry of Justice recommends the Court of Appeal reconsider the case of Tyson Redman, who, in 2007 aged 17, was convicted of wounding and injuring during a group assault at a birthday party in Auckland. The court overturns Redman’s convictions. In 2018, Justice Minister Andrew Little apologises to Redman and pays $550,000 compensation for his 30 months in prison.

David Dougherty. Photo/NZ Herald/Glenn Jeffrey

2011: Lawyers for Teina Pora, jailed for the murder of Susan Burdett in South Auckland in 1992, file a prerogative of mercy application, but before it’s decided, the Privy Council grants an appeal. In 2015, the council recommends against a retrial. Pora later receives $3.5 million in compensation.

2017: Brian McDonald, a convicted murderer and supporter of convicted Sounds killer Scott Watson, files a new application for the prerogative of mercy after an earlier application is declined in 2013 on the advice of Justice Minister Judith Collins. The Privy Council rejected Watson’s application for appeal in 2003, as did the Court of Appeal in 2000.

2018: Lawyer Murray Gibson applies for the prerogative of mercy or a pardon for the murder convictions of David Tamihere, after a jailhouse snitch, who testified against him in his 1990 trial for killing Swedish tourists Urban Höglin and Heidi Paakkonen, is convicted of perjury in 2017.

This article was first published in the October 13, 2018 issue of the New Zealand Listener.