Sir Thomas Murray Thorp KNZM (1925 – 17 October 2018) – Obituary
Former High Court Judge, Sir Thomas Thorp died in Auckland on 17 October 2018 at the age of 92.
After graduating from the University of Auckland, Sir Thomas spent much of his early career in Gisborne having joined local firm Nolan and Skeet in 1949. He was appointed Crown Solicitor in 1963 and continued to serve in that capacity for the next sixteen years. In 1977 and 1978, Sir Thomas was the President of the Gisborne District Law Society.
In 1979 Sir Thomas was appointed to the High Court bench. Stuart Grieve QC, who appeared before him several times, describes Sir Thomas as a very fair and courteous judge. Sir Ted Thomas KNZM QC described him as a first-rate judge and of great value to younger judges, as he was himself at that time. “He was supportive and always courteous, come what may in court. He never let it rattle him.”
Sir Thomas remained on the bench until 1996. The following year he was appointed a Knight Companion of the New Zealand Order of Merit in recognition of his service as a judge. He also served as chairman of the National Parole Board.
After his retirement the judge conducted several inquiries. He was best known for his inquiries into firearms control in New Zealand and, perhaps more controversially, into the convictions of Peter Ellis and David Bain. While Sir Thomas was satisfied with the safety of the verdict in the Bain case, he had misgivings about aspects of the Ellis case. He found that the children’s claims of sexual abuse could not be corroborated and recommended the repeal of section 23G of the Evidence Act.
His work on the Ellis case led Sir Thomas to conduct a two-year study of the nature and incidences of miscarriages of justice in comparable jurisdictions, particularly the UK and Scotland. The research considered 53 applications to the Ministry of Justice alleging miscarriages of justice from 1995 to 2002. He classified 26% of these as requiring careful investigation.
In 2006, following this research (which was published by the Legal Research Foundation), the former judge made headlines when he said that as many as 20 people could wrongly be incarcerated in New Zealand. Sir Thomas called for the establishment of an independent authority to identify miscarriages of justice.(1)
A briefing paper to the Minister of Justice in 2006 stated that “Sir Thomas’ paper is a valuable study that raises a number of operational and policy issues for further investigation.” Notwithstanding this, the brief concluded that “… there is not in our view a satisfactory factual basis for the conclusion that an independent body is needed to generate and investigate a much greater volume of claims.”(2) Sir Thomas was later to describe the Ministry of Justice as "regrettably turf-conscious". (3)
The Thorp Paper, as it came to be known, formed the basis of many calls for the establishment of a criminal cases review body. Some 11 years later, after much campaigning by the defence bar, the government announced the proposed establishment of the Criminal Cases Review Commission. In 2017, Sir Thomas said that he was pleased when the government indicated support for the body, but also anxious, commenting that “I think I have probably had about three ideas in my life and none of them has come off! It would be nice to get one.” He expressed the hope that top-level criminal barristers would become involved to lend leadership and credibility to the commission.(4)
The NZBA offers its condolences to the family of Sir Thomas.
(1) “Up to 20 wrongly in jail says judge” https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10364743 (accessed 13/11/18)
(2) Ministry of Justice “Thorpe paper: miscarriages of justice" https://fyi.org.nz/request/1203/response/4989/attach/4/3.Thorp%20Paper%20Miscarriages%20of%20Justice.pdf (accessed 13/11/18)
(3) Call for inquiry into justice system ignored: ex-judge https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10486458 (accessed 13/11/18)
(4) “Top lawyers needed to help with criminal cases review”, says judge https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11937159 (accessed 13/11/18). The legislation to establish this body was introduced in September 2018.