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The quashing of David Bain's
murder convictions can only bolster the hopes of those fighting to prove the
innocence of other high-profile cases. Adam Dudding surveys the `innocence
industry'. JUST IMAGINE the jury selection process if the Crown decides to
put David Bain back on trial for the murder of his family, says veteran
journalist Pat Booth. "Where do you find 12 people who haven't got a
view on the Bain case?" Where indeed? For more than a
decade the Bain case has been one of a handful of alleged miscarriages of
justice that have become part of the country's everyday vocabulary. Guilt and
innocence are argued in interviews, books and in TV re- enactments. The wronged parties have anointed
cheerleaders and critics: the journey of Bain's case to the Privy Council in Tactics can be unusual - moves to
free fisherman Rex Haig, whose murder conviction was overturned last year,
began in earnest only after a fellow inmate staged a hostage drama at
Christchurch Prison to get the public's attention. More conventional are websites
protesting innocence: one in defence of Ellis links to a Watson site, which
links to sites backing Bain and Haig. Another presents a portmanteau of
justice miscarried, outlining the cases in defence of Ellis, Bain and Watson,
as well as David Tamihere (jailed for killing two Swedish tourists) and Mark
Lundy (jailed for killing his wife and child). Sometimes there are links to similar
cases abroad. And sometimes there are victories.
Haig is out. On Thursday Bain had his 12-year-old convictions quashed. There
is a clear message here for campaigners: don't give up; you too may get there
one day. According to a 2005 report by retired
judge Sir Thomas Thorp, there could be as many as 20 victims of unjustifiable
convictions in jail now (a figured extrapolated from British research). Each
year 10 to 15 inmates seek post-appeal conviction reviews, which are referred
back to the courts on the recommendation of the justice minister. So why do
just half a dozen cases grip the public imagination? The answer lies partly
in the sensational nature of the alleged crimes - mysterious death at sea in
Haig's case, mass murder in Bain's, child abuse in Ellis's, the killing of
photogenic tourists (Tamihere) - but something else links these cases,
believes Thorp: the sheer, baffling complexity of the facts. It is for this reason that Thorp
calls for an independent investigative body to be established in Pat Booth believes the notoriety
of certain cases here isn't simply about complexity. Ever since the Arthur
Allan Thomas case in the 1970s, in which police planted evidence to secure a
murder conviction, the public is far less ready to accept a cop's word as
gospel, he says. Booth's investigative work was
central to proving that Thomas was innocent, and for a couple of years
afterwards he had "endless letters" from people in prison saying
they had been denied justice. "And I've got to say some of them clearly
had." The common factor with Bain and
Ellis and Watson et al, says Booth, is public misgivings about the quality of
police evidence and the selective use of it. "The Tamihere case would be a
classic, with the discovery of a body 70km or so across the other side of the
Coromandel, wearing a watch the police said Tamihere had given to his child.
At that stage I can't understand why they didn't get a retrial." And look at the Ellis trial:
"The selection of evidence there; any evidence from the kids that
sounded way out, they just dropped it, although in effect it discredited the
whole of their evidence. There are some serious flaws. "There has been a climate in
the police force, which dates back to the Thomas case and before, that `this
guy is crooked; he's guilty; we lack a piece of evidence: let's find it. Or,
there is evidence that doesn't necessarily point to his guilt and in fact may
point away from it - so let's not use it'." Neither Booth nor Thorp see much
unique about the ways in which If there's anything notable about
New Zealand's innocence industry, says Thorp, it is that so very few post-
appeal conviction reviews are sought by Maori and Pacific Islanders: they
make up over 50% of the prison population, yet make around 11% of the
miscarriage claims. "I can't believe Maori folk
are less subject to error than others, and are probably more," says
Thorp. He believes many Maori and Pacific Islanders are likely to feel it's
"a waste of time; going back to the same folk who hadn't understood them
in the first place". (Thorp doesn't make the point himself, but look:
Bain, Ellis, Watson and Haig are white. In the top flight of allegedly
innocent convicts, only Tamihere is Maori.) The justice system will always
make mistakes, says Thorp. "The whole system depends on human judgment,
which is not impeccable." But the important thing is to have a mechanism
that can put things right. "This last Bain thing is
another of those cases where the facts were as complex as could be and people
have reached different conclusions. I think it would have been helpful to the
court if there had been an adequately resourced independent tribunal making a
report to it on the merits of the claim." |
