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The
Christchurch Civic Creche Case |
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Innocent until proven
guilty, beyond reasonable doubt and "it is better that 10 guilty persons
escape than one innocent suffer" are all well-known legal aphorisms that
make the same fundamental point. The system should do everything in its power
to get it right and, if anything, the benefit of the doubt should go to the
accused. Despite a handful of
public controversies over miscarriages of justice, the general verdict on the
legal system in New Zealand has always been that it works pretty well.
However, a detailed investigation by retired High Court judge Sir Thomas
Thorp, which was reported in the Weekend Herald, gives reason to question
whether this attitude might be a little too complacent for comfort. Sir
Thomas points out that the number of people complaining about miscarriages in
the past decade has increased from two or three a year to 10 or more, and he
estimates that as many as 20 people could be wrongly held behind bars. When this estimate is
measured against the prison muster - which at times reaches 7000 - it may
seem insignificant. And yet there is real cause for disquiet. Sir Thomas
compared the New Zealand experience with systems overseas and studied 53
claims of miscarriage in this country between 1995 and 2000. Of these, 16 per
cent had no merit but he considered the rest had potential to investigate or
clearly required investigation. Adding to the sense of
disquiet is that few of those who lodged complaints were Maori or Pacific
Islanders, even though these people comprised 60 per cent of the prison
population at the time of the study. It would seem that for every prisoner
protesting innocence who captures the headlines, there are many who go
quietly for a number of reasons, including, in the case of Polynesians, a
lack of confidence in the system. The solution, according
to Sir Thomas, is to follow the English and Scottish examples and set up an
independent authority to identify miscarriages of justice and to actively
notify prisoners of their rights. Critics will question whether such a body
would be taking over some of the functions of the Court of Appeal but its
role would be different. Sir Thomas argues that in New Zealand, as in
Britain, the Court of Appeal is unsuited and reluctant to engage in the
investigation and resolution of factual controversy. He points out that
during the Ellis appeals the court, on more than one occasion, said the
issues that Peter Ellis wanted to address were more suitable to be heard by a
commission of inquiry. If it is impossible for
the appeal courts to deal with such issues, then having a separate authority
to investigate may be the best solution. At least it would have the virtue of
addressing claims of miscarriage systematically and everyone would get a fair
hearing. A second criticism is
likely to be that the process will just encourage more unsustainable claims
of innocence, as it did when introduced in Britain. No doubt this is right,
but Sir Thomas has anticipated the argument by pointing out that the British
experience also exposed a rising number of unsafe convictions. Sir Thomas' report
gives good grounds to believe that miscarriages in New Zealand are much more
common that most people supposed, even though they are still a minute
proportion of convictions. His solution is worthy of serious consideration if
the system is to achieve its goal of getting it right beyond reasonable
doubt. |
