Otago Daily Times
December 28, 2001

Guilty until proven innocent
by Dave Witherow
Dave Witherow is a Dunedin armchair philosopher and environmentalist


I have just finished reading a new book by Mike Kalaugher on the disappearance - and presumed murder - of Ben Smart and Olivia Hope. Kalaugher makes a powerful argument that the man convicted of the "murders", Scott Watson, is not in fact a killer, but just another innocent citizen stitched up by the New Zealand system of "justice".

This has become a worry. Coming hard on the heels of Lynley Hood's monumental work on the Peter Ellis fiasco, it further erodes what minimal credibility still adheres to the police, the courts and the judiciary.

It is something that should concern us all, according to Colonel Elmo Guttshott, the distinguished criminologist, with whom I discussed the matter.

"Yes, indeed," commented Elmo, "New Zealand has rapidly moved into a commanding lead in the ancient art of fitting up defendants. No-one can hold a candle to us at the present time. We're streets ahead of everyone - even the Americans."

I thought America was the home of the brave and the land of the free.

"Don't make me laugh. America. That's a good one. America has more people in prison than anybody else, and it's not exactly a secret that a high proportion of them are innocent. There's a big industry in the States, in fact, devoted to getting these stitched-up characters out of the pokey. It goes back to the Nixon era, if you have time for a spot of history?"

Fire away. I actually remember a bit about Nixon.

"Well, Nixon promised to be tough on crime. He said he'd `get crime off the streets', if he was re-elected."

"Yes. Well, old tricky Dicky was as good as his word. He got crime off the streets all right and brought it into the White House where, as he said himself, he `was able to keep an eye on it'. Half of his staff were criminals, including his attorney-general."

But they did get caught.

"They did indeed. But not before the rot had infected the police, the courts, the whole judicial apparatus. That's the trouble with corruption, it's very highly contagious. And ever since then the Yanks have been busy locking up innocent people."

So now we're doing the same?

"Yes. It's very interesting and I have been studying it intensely. There is still considerable work to be done, but I think that my report, when it appears, will be a shocker."

Tell me some more.

"I'd rather not. There is the danger of misinterpretation in so comprehensive an investigation. It would, for example, be so easy just to blame the police, which already seems to be happening. But stitching people up, you must understand, is merely a symptom of much deeper dysfunction."

Which is?

"Oh, lots of inter-related things: materialism, Rogernomics, avarice, the erosion of social capital."

Sounds a bit too comprehensive for me, Elmo. Can't you be more specific?

There was a lengthy pause before Elmo replied.

"Crime has greatly expanded, at every level of our society. Our business leaders, to begin with, I'm sure you recall the Winebox? Then there is the Civil Service. Auditors-general committing fraud; looting at the highest levels. Politicians dodging the rules, judges struck off, police commissioners forced to resign, bent lawyers a dime a dozen."

Elmo paused again, gazing past me, dismayed by his own dissertation.

"The constabulary is under pressure, surrounded by amorality. Its members have lost sight of their traditional role. They are confused. They no longer investigate a crime as they used to do, searching for clues that might lead them to a suspect. Too time-consuming and difficult. So now they look for a suspect right from the start and assemble the evidence later. This method seems to work very well, but it encourages the habit of `fitting-up', and it can lead to the planting of evidence. You will remember Mr A.A. Thomas."

Elmo searched in a pocket and withdrew some scraps of paper, which he examined with furrowed brow.

"I can't be quite sure of the figures yet, but it does look bad. There was Arthur Allan Thomas, of course. That's where it began. Then David Dougherty, David Bain, Wayne Montaperto, Peter Ellis, Scott Watson . . . and these are just the more prominent."

You think all of them are innocent?

"Too soon to say. Thomas and Dougherty have already been pardoned, and Mr Ellis will be next in line, political cowardice is the only obstacle there. After that. . . .".

Elmo stroked his beard, assuming a solemn expression.

"My data, as I say, are incomplete, so what I am about to confide in you must be treated with due caution."

I nodded conspiratorially.

"My data," repeated Elmo, as though reluctant to continue. "My data would seem to indicate a phenomenon quite unique in the history of penology. If I am right, and I think I am. If my conclusions stand, then we, ah, we face the alarming probability that there are actually no guilty people in New Zealand jails at all."

For once I was at a loss for words.

"There may be one or two," said Elmo quickly. "No system is entirely foolproof, of course, and one or two crims may have slipped past the normal processes of fitting up. But they would seem to be the exception. Otherwise my advice would be - if you're looking for somebody honest, check out your local slammer."