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The
Christchurch Civic Creche Case |
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Sir Thomas Thorp Sir Thomas Thorp has
forbidden himself from discussing the merits of this case or that. So we
can't expect him to tell us that the Peter Ellis case piqued his interest in
the issue of miscarriages of justice, but it's a fair bet. The former High Court
judge and Parole Board chairman has spent much of the past two years
researching and writing a report about how we and comparable justice systems
deal with claims of wrongful conviction. His verdict is that the
occurrences of miscarriages of justice in New Zealand are under-estimated. By
his estimate, up to 20 victims of unjustifiable convictions could be in jail
now. And he recommends we
set up a special authority, independent of the Justice Ministry, with
adequate funding and resourcing, including its own investigative capacity. Sir Thomas funded the
project himself. His work during two years involved travelling to England and
Scotland and numerous journeys to Wellington. His findings will carry
additional weight because of who he is, one of the country's most-respected
High Court judges. He had 31 years of involvement in Crown prosecution work,
having prosecuted his first case at the tender age of 23. Labour and National
governments have called on him to conduct ministerial inquiries. Seated in the sunny
study of his Parnell home, he's unsurprisingly judicious as he discusses his
paper, called simply "Miscarriages of Justice". About how his interest
in the topic arose sufficiently for him to put in the time, effort and money,
he says this much: It came from being asked by the Justice Ministry to give
an opinion on a number of claims of miscarriage. "Ellis in 1999 was the
first of them." He follows with a
pre-emptive apology. For the purposes of his research the ministry gave him
access to its files so long as he respect confidence and privacy. He can't,
therefore, kiss and tell. "So, I'm afraid I'm not being very
helpful." We know, however, from
media reports that at least some of the inquiries the ministry requested he
do were into the convictions of Ellis, David Bain and Alec Waugh (see
accompanying story). In only one of those three cases was he confident the
conviction was safe. That work led him to
make his study. "I became concerned about limitations which procedures
which were then current seemed to me to impose. I persuaded the ministry to
let me look broadly at the procedures and that's how the thing
developed." He doesn't go out of
his way to be critical or to be an advocate for a particular petitioner but
it's clear he found numbers of weaknesses in our system. He got to examine 53
claims of miscarriage of justice filed with the ministry from 1995 to 2002,
all of which had been determined. A retired judge or senior counsel was asked
to look at only five of them. Sir Thomas does not
comment on the outcome of the 53 claims but the Weekend Herald understands
there have been half a dozen cases in which some relief was given or the
convictions were quashed completely. "One thing that
staggered me," says Sir Thomas, "was there seemed such unanimity in
the overseas literature that there had been conservatism in the estimates of
the frequency of miscarriages." From the early 1900s
those who had claimed that injustices were more frequent than was recognised
were discounted, only to be proved right with the passage of time. The pattern is similar
in New Zealand. In 1992 the Court of Appeal said there was no need for a
separate authority because one or two claims a year of a miscarriage would be
a "generous estimate". By the turn of the century claims averaged
10 a year, by 2003 the estimate was 10 to 15. "I think law of
necessity has to be conservative," says Sir Thomas. "You don't want
people who are supposed to be administering the law to become active
reformers. "Most of these
people try their damnedest to achieve justice and there's a reluctance to
accept that because the work involves human judgment it is going to be faulty
at times." Healthy systems, though, continually work to minimise such
errors. In his research, Sir
Thomas found that Maori and Pacific Islanders were far less likely to make
claims of miscarriage of justice than Pakehas, when there was nothing to
suggest it would affect that group any less. "I don't know the
reason. I hypothesise that it may be that they are outside, that they are not
understood by the justice system. "I think that
there is in our racial difficulty a sense that people are not understood,
which is complex and not open to simple resolution. But, surely, changing
from the present self-generating system, which requires complainants to hold
their hand up and come up with a written petition or claim, to a system which
actually goes out to make sure that all convicted people are aware there is
this authority and it will help them formulate a claim if need be, that
should make some difference." Concern that this may
open the floodgates to fictitious claims, be merely a new level of appeal and
lower the public estimation of the courts was not been borne out by the
experience of the United Kingdom Criminal Cases Review Commission
(established 1997) or its Scottish counterpart, set up two years later. The
proportion didn't much change; there was an increased number of claims and
also of cases held to be meritorious. A 2003 Justice Ministry
discussion paper on the topic identified two serious options: strengthen the
ministry's unit (2.25 staff members as at 2002) which deals with claims or establishing
a three-person independent review body supported by the ministry. Sir Thomas says the
latter is preferable but does not go nearly far enough. To be credible as an
independent body it had to be self-sufficient and funded to do the job
properly. The experience of the
United Kingdom was that unless the examining body was seen to be totally
independent of the establishment a lot of people did not apply. "Looking at it
from the situation of the prisoner who has been convicted, wrongly in his view,
and has then appealed and been told his case is of no merit, the idea of
going back to an office within the same establishment is unattractive. "I think in New
Zealand this may be particularly so because of this strange business of Maori
and Pacific Islanders not claiming." Such an independent
body may have appealed to someone like David Dougherty, whose conviction for
the rape of an 11-year-old girl was quashed in 1997 after his defence team
presented DNA evidence which established that semen in the victim's underwear
was not his. Dougherty had spent four years in prison. The development of DNA
technology has proven wrongful convictions in many cases, particularly in the
US and Canada. Sir Thomas regards his
work as a start rather than a definitive study but his past two years of
inquiry has convinced him we should follow Scotland and the United Kingdom
commissions. A commission similar to Scotland's, a country with a similar
population and prison population, would cost $2-$3 million a year. Sir Thomas chose to end
his report by quoting the chairman of Scotland's commission, the Very
Reverend Graham Forbes. He'd asked Forbes whether the Scottish Government
felt it was getting value. Forbes thought so, his government had never
quibbled about the cost. Forbes then added: "Of course it all depends
how robust you want your justice system to be." And that, says, Sir
Thomas "is exactly what it's all about". * A seminar on Sir Thomas' paper, organised by the Legal
Research Foundation, is to be held at Auckland University on February 24.
Thorp
reports cast doubt on high profile convictions Two of three cases
which Sir Thomas Thorp assessed at the request of the Government gave him
cause for concern. A miscarriage of justice had occurred in one and the other
led him to express doubts about the safety of the conviction. Thorp reports
for Government:
Report expressed
concerns about the safety of Ellis' conviction. It said Ellis' two petitions
for a pardon raised "a considerable number of issues sufficiently to
point to a need for further investigation". His report identified
the techniques used to interview the children, potential contamination of
their evidence and assessment of the children's reliability as central. He said
if the concerns expressed by several experts proved to have general support,
"it would in my view be difficult to argue against the existence of a
serious doubt about the safety of [Ellis'] convictions". Ellis was convicted in
1993 of 16 charges of sexual abuse against children at the Christchurch Civic
Creche. He was sentenced to 10 years' imprisonment and after serving
two-thirds of the sentence was released in February 2000. His bid to prove he is
innocent has involved two petitions for pardons and two Court of Appeal
hearings. In his report, Sir
Thomas Thorp recommended the Government get a formal opinion from Professor
Stephen Ceci, of Cornell University, whose work on the subject of accuracy of
children's courtroom testimony has won acclaim. That appears not to have been
acted on. A report by former
Chief Justice Sir Thomas Eichelbaum, released in 2001 said Ellis had failed
by a "distinct margin" to prove the convictions were unsafe.
However, Phil Goff, who was Justice Minister at the time, said the Thorp and
Eichelbaum inquiries were based on different material. In August, Parliament's
Justice and Electoral Committee declined a request for a Royal Commission
into the Ellis case but recommended New Zealand establish a body to look into
possible miscarriages of justice similar to Britain's Criminal Cases Review
Commission. 2002, Alec Waugh Found that improper
pressures were placed on Waugh, a former police superintendent, to change his
plea in a 1998 court case. Waugh had, midway through evidence, pleaded guilty
to 10 charges of making fraudulent expense claims. Following Sir Thomas'
report, his convictions were quashed, he received compensation and was
reappointed to the police as a deputy commissioner. 2003, David Bain Was satisfied on
information available that there had been no miscarriage of justice. |
