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NZ
Listener
September 27-October 3 2003
Vol 190 No 3307
(Published September 20, 2003)
Something to Prove
by Bruce Ansley
The latest David
Bain appeal highlights the question: can we trust our justice system?
Rex Haig, convicted in 1995 of killing a crewman on his fishing boat, is
trying to get the Privy Council to reconsider his case.
Scott Watson, sentenced to life for murdering Olivia Hope and Ben Smart, is
asking the Privy Council for leave to become one of the rare criminal cases
that court agrees to review.
A host of other alleged innocents are clamouring for another day in court.
An industry has grown up around the lack of a convincing mechanism to allay
public doubts over miscarriages of justice in this country.
The innocence industry provides employment for many – lawyers, functionaries,
journalists, writers – glory for successful campaigners and salvation for a
very few.
It flourishes in the absence of review procedures such as Britain set
up six years ago following the release of the Birmingham Six, wrongly jailed
after the UK's
bloodiest IRA attack.
Each of New Zealand's
outstanding cases has become a cause célèbre, the vehemence of the outcry in
direct proportion to the state's failure to address it.
All of them are eroding public confidence in the justice system.
When the police investigation into the Crewe
murders proved fatally flawed and Arthur Allan Thomas was pardoned, public
faith took a body blow. Until then, courts and prosecutors were above
reproach. Thomas, New Zealand's Birmingham Six and
Guildford Four wrapped up in one, proved them wrong. Then David Dougherty was
proved to have been wrongly jailed for rape on the basis of new DNA evidence
(DNA is a major factor in establishing wrongful convictions internationally).
Peter Ellis, having served his jail term for sexually abusing children at the
Christchurch Civic Creche, simply refuses to go away. Doubts over the justice
of his conviction are so widespread and so well documented, particularly by
Lynley Hood's A City Possessed, that they have become a permanent fixture in
public mistrust.
The public believes in the criminal justice system because it is effective
and fair: effective because it puts the right people away for the right
offences; fair because it gives accuser and accused the proper breaks. A
wrongful conviction challenges both. It refutes the presumption of innocence
until proven guilty, conflicts with the public expectation that most people
charged are guilty, leaves the real offender free to commit other crimes,
creates the perception that future convictions could as well be dud.
Statistically, that is likely.
Ronald Huff, a University
of California
criminologist, asked American prosecutors, judges, law-enforcement officials
and attorneys-general their estimate of the proportion of wrongful felony
convictions.
Most estimated the figure to be less than one percent. Huff settled on a
conservative one half of one percent, then calculated that in the year 2000,
7500 people had been wrongfully convicted of serious crimes. The Criminal
Justice Research Centre's estimate is 6000 people wrongly convicted in the US each year.
The chance of being convicted wrongly became greater the more serious the
crime: a year 2000 study noted that in the previous 25 years of US experience
with the death penalty, 553 people were executed while 80 were released and
their sentences overturned, suggesting a one in seven error rate.
A British study estimates that the wrongful conviction rate there may be 0.1
percent, or one in a thousand.
No similar work has been done in New Zealand, but the Ministry of
Justice has received 55 mercy pleas in the last eight years.
Many of the reasons Huff found behind wrongful convictions in the US are cited
in Bain's defence: eyewitness error, overzealous detectives and prosecution,
misconduct, ineffective lawyers, forensic science errors.
One major difference that accounts for at least a measure of public disbelief
in this country is the previous good character of our most celebrated
convicts.
Thomas, Dougherty, Haig, Bain are all men who could go to a Rotary club
meeting and put their hands over their hearts without a qualm.
Compare them with similar international causes: Peter Limone was released
from a US
jail two years ago after being wrongly convicted on the testimony of mob
hitman Joseph "the Animal" Barboza for an underworld murder. Rubin
Carter, wrongly convicted of murder and played by Denzel Washington in the
film The Hurricane, was a thug who had done time for muggings and boasted of
savagery. Carter met Bain in jail, as chalk meets cheese.
Bain was a clean-living young man whose spare time ran to nothing more
villainous than drama and singing.
Why he should suddenly turn on his family with a silenced .22 rifle and kill
them all mystified everyone at his trial. That, of course, does not make him
innocent. But at least Bain is getting yet another crack at proving that it
might.
Even Justice Minister Phil Goff seems to be finding his intransigence over
Peter Ellis wearing.
Until now Goff has taken the lofty view of the justice system's
infallibility. His stance has essentially been a defensive crouch. He has
refused to accept any need for extra scrutiny, but the rising number of cases
demanding re-examination, especially the high-profile ones, is forcing a
change of heart.
When court appeals have been exhausted, the remaining avenue currently open to
the aggrieved is to the Governor-General. The petition is assessed by Justice
Ministry officials and an ad hoc system of referring it to an outside
authority, usually a QC, has developed. The system is unwieldy and, according
to Nigel Hampton, QC, unfair.
Hampton acts
for Rex Haig and lodged a second mercy plea with the Governor-General in
2001.
Act MP Stephen Franks told Parliament that the central allegation in the
petition was that Haig had been convicted of killing his crewman Mark
Roderique on the testimony of his (Haig's) nephew, David Hogan. But, said
Franks, Hogan had portrayed himself to friends and former associates as the
real killer, had arranged a second murder to silence a man to whom he
confessed, and was stated in the petition to have told others that he had
framed his uncle for the murder. Police were aware of two of the alleged
admissions before Haig was charged.
Grounds for doubt? This crucial body of evidence was scrutinised by two
officials and later by John Billingham, QC, and given the thumbs-down in what
Hampton
claims was a cursory way. He has now lodged a second petition, with more
analysis and argument. It is going through the same process, but is being
scrutinised, more fully, by Colin Carruthers, QC.
Hampton,
understandably, is a staunch advocate of a more formal and thorough review
system, similar to the exemplary British Criminal Cases Review Commission set
up in 1997 to re-examine suspected miscarriages of criminal justice.
"It's necessary," he says. "Reviews shouldn't be done in-house
the way they are here. Better to have something outside the justice system.
If there are problems resulting in wrongful convictions, let's get them
out."
Goff's office confirms that the Minister is considering a review committee,
perhaps consisting of a retired judge and two prominent members of society.
But that would fall far short of the British commission, which now has 50
case review managers. By the end of July, the commission had dealt with 6105
applications in its six years. Of the 152 cases referred back to the Court of
Appeal, 102 convictions had been quashed.
Will we all lose faith in New
Zealand justice if Bain, or Ellis, or Haig
is proved to have been unfairly convicted? Hampton is among those who think it will
have the opposite effect. "It's a sign of strength rather than
weakness," he says. "I don't think it undermines the system, as is
claimed by the present Minister [Goff]."
I covered the Bain and Ellis trials, and wrote about the Haig trial. The
Listener's Pamela Stirling covered the Watson trial.
For what they're worth, here are our assessments.
Stirling believes the Watson verdict was the
correct one. I think both the Haig and the Ellis convictions were wrong.
As for Bain – well, his defence called into question several aspects of the
so-called mountain of evidence against him. For me, two elements of the case
stand out.
First, a wrong conviction implies so much incompetence and corruption among
the large team of investigators that if the evidence was incorrect, we are in
serious trouble.
Second, Robin Bain's full bladder says he would have had to kill his entire
family without so much as stopping to urinate. Difficult to believe in a
58-year-old. But I'd hope that a re-examination would turn on more than a
man's need for a pee.
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