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The Christchurch Civic
Creche Case |
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Top criminal lawyer Robert Lithgow
tells David McLoughlin of the frustration that led to him attacking the Court
of Appeal as a waste of time for victims of miscarriages of justice and
refusing to take a case to it ever again. -------------------- Just before Christmas, Wellington
lawyer Robert Lithgow sent the justice system an unwelcome present. It was an
article in the scholarly New Zealand Law Journal entitled The Last Hurrah and
it argued that convicted criminals who believed they were victims of
miscarriages of justice were wasting their time seeking redress in the Court
of Appeal. The court, he wrote, did not
perform the function the public thought it performed and which Parliament and
the courts themselves pretended it performed -- reviewing trials held in the
lower courts to ensure they were fair. Instead, he argued, it looked
narrowly at cases, refused to consider that juries might sometimes judge the
evidence wrongly, issued illogical judgments that at times deliberately missed
the point and in effect operated for the convenience of the judges rather
than as the upholder of the Bill of Rights Act's guarantee of the right to a
fair trial. "If the decisions of the
Court of Appeal were the decisions of, say, the Health and Disability
Commissioner or the Ombudsman, they would be ridiculed on radio and
television," he wrote. "That is because the people on the receiving
end are real people who can react on their own behalf when issues are avoided
and facts distorted. "With the courts, the clients
are in jail and the lawyers are not permitted to comment in that direct way
and must go back and face the courts the following day. And so we lawyers are
cowards by our own vain ambitions. We kid ourselves if we think the robust
criticism and self-examination that is exhorted from other professions is
part of the legal world." Not avoiding robust criticism for
a paragraph, the article continued for 212 pages citing cases and naming
names before reaching a ringing crescendo in which Mr Lithgow announced he
would never again take a case to the Court of Appeal. "I have given away my appeal
practice," wrote this lawyer whose first appeal to that court was in
1987 and who is regarded as one of the most experienced criminal appeal
lawyers in New Zealand. "I don't reckon it is worth the grief
anymore." Not only was it Mr Lithgow's last
hurrah in the Court of Appeal, it was his last hurrah as the contributor of
the Law Journal's quarterly column Criminal Practice, a platform he has used
since 1998 to discuss problematic court cases -- some of them ones in which
he acted for the convicted criminal concerned -- often flaying the justice
system unflinchingly. But as a climax, The Last Hurrah
was arresting and the subject of much chat over golf clubs, wine glasses and
coffee cups by lawyers and judges during their long summer holidays. Some
were astonished to see such brazen criticism. Some were annoyed. Some nodded
warmly in support. But it was not something they discussed in public.
Criticism of the kind lawyers would hesitate to level at the judiciary
privately among themselves, let alone in the Law Journal, is regarded a bit
nervously. Back from his own holidays last
week, Mr Lithgow says "a few" lawyers have told him they agree with
what he wrote and nobody so far has criticised him to his face. He proudly shows a letter from a
High Court judge imploring him to reconsider his decision to stop acting in
appeals. "Your passion for criminal
law and your incisive submissions will be missed," the letter says. Mr Lithgow says he was moved to
make his stand by the frustration of close to 20 years fighting cases in the
Court of Appeal on behalf of people society might despise but who have rights
to a fair trial whatever they might have done. Some criminals, he says, get
anything but a fair trial, but, despite glaring inadequacies, the Court of
Appeal refuses to do anything about it. Take the case of Bruce Howse, the
vicious killer of Masterton girls Saliel Aplin, 12, and Olympia Jetson, 11, stabbed
in the sleepout of the home he shared with their mother, Charlene Aplin, in
2001. It was a crime that sickened the
nation. After a High Court trial in 2002, a jury found Howse guilty of their
murders and he was sentenced to life with a minimum term of 28 years. Howse appealed (Mr Lithgow was not
involved in the case). The Court of Appeal agreed the trial was flawed, that
the jury heard evidence it should not have and that the judge's summing up
left much to be desired. But, despite agreeing Howse had
suffered a miscarriage of justice deserving of a new trial, the Court of
Appeal refused him one on the grounds he was guilty anyway. It knocked three
years off his sentence as a consolation. In a split decision, the Privy
Council in London upheld the Court of Appeal. Mr Lithgow can barely contain his
derision for those decisions. "Nobody believes Howse got a
fair trial. In the eyes of the Court of Appeal, he got a good enough trial
and, because they said he was guilty, he didn't deserve another one. Well,
that is not good enough." Section 25 of the Bill of Rights
Act says that everyone accused of a crime has the right to a "fair and
public hearing by an independent and impartial court". But the Court of
Appeal has been reluctant to fully uphold that right, Mr Lithgow argues,
seeing it as something of a "rogue's charter" working to the
benefit of some unsavoury characters. But that overlooks what is at
stake, he says. People charged with serious crimes face being deprived of
liberty for decades thanks to Parliament listening to public and media
concern about violent crime and massively increasing penalties in the past 20
years. Despite the increasingly high
stakes, the decision whether an accused person is guilty as charged rests not
with highly trained and experienced judges but with the ordinary lay people
who make up juries. "The jury system is a pretty
rough and ready one," Mr Lithgow says. "You are amateurs, you are
told quite complex rules about how to decide your verdict at the end of the
drama being played out in court, then you have to fit it all together. The
system assumes the jury always gets it right. But that's absurd. Nobody is
infallible. The Court of Appeal should be operating a quality control,
fail-safe system to ensure the trial was fair and the jury got it right, but
it won't." The court looks at whether there
were technical or legal flaws in a trial, such as whether evidence was
improperly allowed or whether the judge gave the jury the right directions on
how to consider the verdict. But it rarely inquires into
whether a jury was right to find someone guilty based on the evidence it
heard. It has traditionally ruled that the facts of the case are for juries
to decide and courts should not interfere with a jury's decision. Mr Lithgow says that opens the
door to miscarriages of justice, such as the Court of Appeal twice refusing
to look at the "absurd" evidence that led to Christchurch childcare
worker Peter Ellis being found guilty in 1993 of abusing children, or the case
of David Tamihere, convicted in 1990 of killing Swedish tourists Heidi
Paakkonen and Urban Hoglin. The prosecution compellingly
alleged Tamihere gave his son Mr Hoglin's watch, but when the young Swede's
body was found after the trial, the watch was still on the wrist. Despite the
watch evidence being crucial for the jury finding guilt, the Court of Appeal
refused to quash the conviction or allow Tamihere a new trial, and he remains
in jail. The Court of Appeal does sometimes
examine the evidence, as when it reviewed the David Bain murder case a second
time in 2004, but Mr Lithgow says that followed the case being referred to
the court by the governor-general with a direction to look at the evidence,
which rarely happens. Bain's conviction for murdering his entire family in
Dunedin in 1995 was upheld. But nothing in the Crimes Act or
elsewhere in the law says the Court of Appeal cannot look at the evidence a
jury heard and quash a conviction if the verdict was questionable. Mr Lithgow says he's not attacking
the current Court of Appeal, but a system that has become entrenched since
the court was created in its present shape in the 1950s. "The one critical difference
between the New Zealand Court of Appeal and some others, like Australia's, is
that the High Court of Australia has said if it senses something has gone
wrong with a trial that's sufficient for quashing. Our court won't accept
that development and substitute itself for the jury." Fittingly for a rebel with a
cause, Mr Lithgow is the proud rider around town of a distinctive designer
motorcycle, a rare Philippe Starck-designed Aprilia Moto 6.5, one of only a
few in New Zealand. He's had it for six months and his face lights up and he
smiles at the very mention of it. "It is a beautiful machine. It makes
me smile to look at it. It's my town bike. I like bikes because they force
courts and law out of your head. You concentrate on riding or you get
killed." Mr Lithgow began studying law at
Victoria University in 1973 but left for his OE, which saw him do such things
as work as a stage hand for a ballet company in London and travel around
Europe by bike. When he returned to New Zealand, he went into organic market
gardening for a while before picking up law again. His first law job was with the
firm Buddle Findlay from 1984 to 1987, after which he embarked on a career as
a criminal defence lawyer. It was punctuated with three years working for
Crown Law as Crown solicitor for Blenheim in the mid-1990s, but for the most
part he's been a familiar figure fighting for the accused in the High Court
and for appellants in the Court of Appeal. He's also active in legal training
programmes for new lawyers and lawyers from the Pacific Islands. Ask why he got into criminal work
and he looks puzzled for a moment, as if he's not been asked the question
before. "Natural inclination, I
suppose. I've never thought about it . . . but I was just always interested
in criminal law." The Dominion Post asked to discuss
The Last Hurrah with Chief Justice Dame Sian Elias, or Court of Appeal
president Noel Anderson, but judges' spokesman Neil Billington says judges do
not normally respond to comments made by lawyers outside a courtroom. Victoria University Dean of Law
Matthew Palmer says Mr Lithgow's article was intemperately expressed and
unusual in the extent to which it criticised the judiciary. "It is
unwise. It is not the sort of attitude you would expect a senior practitioner
to express in public about a court." Mr Lithgow is bemused by Professor
Palmer's comments, saying the academic has not worked in the courts and does
not know what he is talking about. Some of the capital's prominent
defence and civil liberties lawyers have strong praise for the article. Tony Ellis, who has taken and won
some celebrated civil liberties cases in the High Court and Court of Appeal,
says Mr Lithgow is too valuable to be lost from the Court of Appeal, but he
understands and respects his reasons. "His article is hard-hitting
to the extreme, but nevertheless the inability of the court to present
rational and reasoned legal decisions has become more serious over the years
and is caused by the Government's failure to appoint an adequate number of
judges," says Mr Ellis. There are seven permanent Court of
Appeal judges, a number that has been fixed since 1987 despite a huge
increase in the court's workload. They are helped in routine criminal appeals
by High Court judges. A bill before Parliament would increase the ranks by
two to nine, but Mr Ellis says there are fears only one extra judge will be
appointed. "The court has judges of
shining intellectual ability who are reduced to a production line churning
out decisions of superficial reasoning. If I was a judge of the Court of
Appeal, faced with their workload, I might be loath to embark on a more
liberal rights-based approach, too, as it would mean even more work." Greg King, who took the Howse
appeal all the way to the Privy Council, says when someone of Mr Lithgow's
huge skill and experience speaks out the way he has, his concerns have to be
taken seriously. "The analogy is with a senior surgeon who quits the
hospital system saying he can't work with it any more. It would make huge
news. So should this." Mr Lithgow doesn't see the jury
system being reformed -- "it's too popular" -- but, in the absence
of any change in the way the Court of Appeal views jury decisions, he's keen
on retired High Court judge Sir Thomas Thorp's call for an independent
authority to be established to identify miscarriages of justice. Sir Thomas reviewed many disputed
cases for the Justice Ministry from 1995 to 2002, including the Peter Ellis
one, which caused him serious misgivings, and David Bain's, whose conviction
he did not doubt. But based on the cases he studied
and British research, he suspected as many as 20 people could be wrongly in
New Zealand jails. Parliament's justice select
committee has also called for a body to be created to look at miscarriages of
justice. "The verdict is only as good
as the case," says Mr Lithgow. "The fairest trial is where the
prosecutor and defence are evenly matched. There are trials run so fairly
that even the accused can see he had a fair trial, but there are plenty that
aren't, where it's heavily weighted in favour of the prosecution. It's what
Justice Thorp is talking about. "The modern criminal lawyer
takes the Bill of Rights literally. The right to a fair trial is a minimum
standard, not a luxury. It's a right everyone has, but with the Court of
Appeal, if they think you're guilty, like Bruce Howse, then it's become
optional." -------------------- CAPTION: A light on justice: Robert Lithgow
and his prize possession, a rare Philippe Starck-designed Aprilia Moto 6.5. Picture: KENT BLECHYNDEN Cases in point: Mr Lithgow
highlights the Court of Appeal twice refusing to look at the `absurd'
evidence against Peter Ellis, left, and agreeing that Bruce Howse suffered a
miscarriage of justice . . . but was guilty anyway. |
