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The Christchurch Civic
Creche Case |
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The debate now occurring over the
need for an independent body to review possible miscarriages of justice is
necessary and overdue. New Zealand, frequently to the
international forefront of changes to enhance fairness and transparency in
the judicial system, has been notably sluggish in dealing with the system's
failures. In Britain, it took a string of wrongful convictions of IRA terror
suspects to prompt action. New Zealand has had no such cluster, and the
number of cases where compensation has been paid to the wrongfully convicted
is in single figures. But the report of retired judge
Sir Thomas Thorp suggests we are no less at risk of wrongful convictions than
the overseas jurisdictions he studied and there is no room for complacency.
He believes that on the basis of overseas figures, New Zealand may have up to
20 inmates wrongly jailed. Thorp stops short of suggesting
that all will be factually innocent - a figure that is perhaps unknowable -
saying only that there will be serious doubt surrounding the convictions. The number of factually innocent
has long been argued. In Britain, only 4% of applications to the Criminal
Cases Review Commission are referred back to the appeal court, and of those,
about 70% have had convictions quashed. But the commission accepts that cases
of actual innocence are much rarer. Critics of the present system for
dealing with post-appeal reviews of wrongful convictions cite an obscure
process, criteria which are too restrictive and a Ministry of Justice and
appeal court culture with a vested interest in protecting, rather than
overturning, verdicts. Predictably, the ministry rejects
the criticisms of Thorp and others, and believes a little tweaking to the
present system can overcome any shortcomings. It can not. Nothing short of full
independence from the ministry and a sweeping investigative charter is
required. Thorp has even called for such a body to have access to currently
privileged information such as that between doctors and patients and lawyers
and clients. This implies that he envisages a
body that does not simply mull over existing paperwork, but has power that an
accused does not to unearth new evidence. But in any consideration of
wrongful convictions, it is simplistic to assume that establishing yet
another avenue of appeal will solve the systemic problems which lead to
miscarriages of justice. In the United States, the
Innocence Project found a commonality of factors leading to wrongful
conviction - mistaken identification, police and prosecutorial misconduct and
defective or fraudulent science topping the list. Others include wrongful
confessions by accused and perjured evidence by inmate informers. In New Zealand, pressure on police
- in numbers, experience, time and resources - leads to investigative short
cuts which can result in narrow or superficial inquiries. Courts still allow
questionable evidence by inmate "secret witnesses", and there is
unease with police procedures for conducting line-ups and photo spreads for
witness identification. There is also no legal requirement for all
confessions obtained during questioning of suspects in custody to be
videotaped - a move identified overseas as the simplest way to prevent
coercive interrogations and false confessions. In 1923, famed American judge
Learned Hand wrote that court procedures had for too long been "haunted
by the ghost of the innocent man convicted. It is an unreal dream. What we
need to fear is the archaic formalism and the watery sentiment that
obstructs, delays, and defeats the prosecution of crime". Cases such as Arthur Allan Thomas,
David Dougherty and Peter Ellis tell us the ghost of the innocent man
convicted is far from an unreal dream. And that what we need to fear is not
the sentiment that obstructs, delays and defeats the prosecution of crime,
but the one that defeats the provision of justice. |
