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The Christchurch Civic
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http://poneke.wordpress.com/2007/12/16/innocence-project-seeks-justice-for-victims-of-nzs-flawed-legal-system/ Poneke’s Weblog Most people convicted in New
Zealand courts are plainly guilty, including most of those who plead “not
guilty.” And some of those who are acquitted of the crimes they are charged
with are doubtless in fact guilty. This is how it should be. As the old legal
saying goes, better 10 guilty men go free than a single innocent one be
convicted. The Crown is required to prove guilt beyond reasonable doubt. An
accused should not have to prove their innocence. Unfortunately, some palpably
innocent people are convicted of crimes they did not commit. Arthur Allan Thomas, framed by the
police and wrongly convicted of a double murder in 1971, is one of the
most awful examples. David Dougherty, jailed for a 1992 rape actually committed
by the monstrous serial rapist Nicholas Reekie, is another. I have
already written about Peter Ellis this past week. But these are just the
notorious, high-profile cases that come to public attention because some
campaigning journalist, “celebrity” or lawyer champions their cause.
Still other innocents go to jail barely noticed because they are convicted of
crimes much less publicised than a particularly newsworthy murder or the rape
of a child, including Tania Vini, Lucy Akatere and Krishla Fuataha, wrongly
imprisoned in 1999 after being convicted of an aggravated robbery in the
Auckland suburb of Three Kings. One of our most distinguished High
Court judges, Sir Thomas Thorp, published a report last year in which he said
as many as 20 innocent people could be locked away in this country’s prisons.
Sir Thomas spent two years studying the nature and incidence of miscarriages
of justice. He analysed 53 applications to the Justice Ministry claiming
miscarriages of justice from 1995 to 2002. Of those, 16 per cent were
“plainly without merit,” 26 per cent raised issues that “clearly
required careful investigation” and the other 58 per cent had
“sufficient potential to require some further investigation.” Sir Thomas compared the way New
Zealand authorities handle such claims with the practice overseas,
particularly in England, which has an independent Criminal Cases Review
Commission to investigate them. Since its creation in 1997, the commission
has been sufficiently concerned about 356 cases to refer them to the Court of
Appeal, which to date has heard 310 of them, quashing 218. Sir Thomas
recommended New Zealand establish a similar body. His belief that 20 wrongly
convicted people are rotting in jail is not based on the individual cases he
studied, which include the Peter Ellis one, but on his belief that nothing he
found indicated the rate in New Zealand would be significantly different than
in England. Yesterday, Thursday and Friday, a
conference was held at Victoria University in Wellington to carry the torch
lit by Sir Thomas. Known as the Innocence Project, it is the baby of
passionate Vic reader in psychology Maryanne Garry, an expert in memory whose
years of careful research convinced her that people were going to jail on the
basis of wrong or even imagined witness recollections of crimes. The Innocence Project is a joint
venture between Victoria University and the University of Otago and is a
group of scientists, writers and lawyers who seek to investigate possible
cases of wrongful conviction. It falls under the international organisation
known as the Innocence Network, which comprises groups from the USA, Britain
and Australia dedicated to providing pro bono legal and investigative
services to individuals seeking to prove innocence of crimes for which they
were convicted and working to redress the causes of wrongful convictions. Speakers at the conference, which
I managed to attend for yesterday’s sessions, highlighted how the same flawed
investigative and trial methods are responsible for wrongful convictions in
numerous countries, including New Zealand. University of Washington Associate
Professor Jacqueline McMurtrie posited that eyewitness misidentification,
false confessions, government misconduct, ineffective defence lawyers and the
use of prison cell “confessions” to “jailhouse informants” were the leading
cause of wrongful convictions in many countries. She outlined reforms that
have worked in various jurisdictions, including to guidelines for eyewitness
identification procedures, the recording of interrogations, improving legal
representation for impoverished accuseds and limiting the use of jailhouse
informants. The latter issue has long rung
alarm bells for me. In almost every prominent case I have followed where a
fellow inmate gives evidence in court of the accused “confessing” to the
crime while they shared a cell, it emerges that the witness was paid
handsomely in cash or kind by the police to give this evidence. I simply will
not believe a criminal who is being paid to give evidence like this. It
has happened in too many cases where public disquiet has arisen about a
conviction, such as that of David Wayne Tamihere, jailed in 1990 for the
murders of Swedish tourists Urban Hoglin and Heidi Paakkonen; and Scott
Watson’s conviction for the murders of Ben Smart and Olivia Hope, who
vanished in the Marlborough Sounds on New Year’s Day, 1998. I am not prepared
to say that either Tamihere or Watson are innocent. In both cases,
circumstantial and other evidence points to their guilt, but the use of prison
cell informants to help convict them worries me greatly. Nobody charged with
murder these days and intending to plead not guilty confesses to a stranger
in their cell. And in Tamihere’s case, the police also demonstrably
fabricated the evidence of Urban Hoglin’s watch being given to Tamihere’s son
because, when the young Swede’s body was found in 1991 far from where the
cell informant claimed Tamihere had said it was, the watch was still on the
dead tourist’s wrist. A conviction achieved with any falsified evidence
should not be allowed to stand, even if the rest of the evidence is genuine.
The Court of Appeal should have declared a miscarriage of justice and ordered
a retrial on that basis alone, but of course it did not. New Zealand operates
a legal system, not a justice system. During the conference, local
barrister Christopher Stevenson addressed this latter issue pointedly: “It
seems not many people in the justice system truly care about innocence. They
don’t believe in it. Presumption
and protection of innocence remains a vacuous promise. We suffer the great
legal fiction that a conviction is presumptively correct. Unless there is
reform, true perpetrators of crimes will go on to commit more crimes whilst
the innocent serve their jail terms, the public will be less safe, and the
criminal justice system will fail in its primary moral objective, protection
of the innocent.” As lucid and ringing a denunciation of the failings of our
legal system as I have heard. A highlight for me of the
conference was some explosive new evidence going to the very heart of the
miscarriage of justice in the Peter Ellis case. It was presented by
Professor Harlene Hayne, head of Otago’s psychology department. She has
subjected the interviews of the children in this case to scientific scrutiny
and made an extraordinary discovery. I will write about it presently. |
