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Law Reform |
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In the years since Judge Learned Hand's reassurance
as to the robustness of the institutions of justice, [01] we have come to
acknowledge that our criminal justice system is fallible. Despite highly
developed rules and procedures to protect the innocent, miscarriages of
justice do occur. When considering how and why they occur, the
investigation phase provides an obvious starting point. It is the
evidence-gathering stage when relevant and irrelevant material is gathered
and assembled; where the relevant material is sifted and organised; and where
it is then collated and presented in the form of a prosecution case. The
processes followed largely determine what material is gathered and how it is
collected. During the course of the investigation, decisions and judgments
are made and action taken that may have significant implications later on. Inquiries into individual cases of wrongful
conviction have identified investigative processes which have led to a
miscarriage of justice in the particular case. And studies over many years
have pointed to common features that consistently arise in wrongful
conviction cases. Most of this knowledge is derived from overseas. Though
there is very limited empirical information to draw on from experience in New
Zealand, there is no reason to think that the same issues are not relevant
here. Indeed, individual cases of wrongful conviction here reflect a similar
pattern of shortcomings. While in some cases it may be right to assert that
responsibility for a miscarriage of justice fell on the investigating
officers [02] generally, the reasons lie far deeper. The frequent use of
expressions in the research and inquiries such as "systemic problems',
or "systemic failure" point to a link between investigative
processes and miscarriages of justice.
And often, individual failings are a reflection of weaknesses in the
process. This paper will discuss those investigative
processes which have been identified as contributing to miscarriages of
justice; it will also note a number of environmental factors that
consistently feature in reviews of wrongful convictions; and it will suggest
that whilst there is merit in looking at options for remedying miscarriages
of justice in New Zealand, there is much to be gained by developing
investigative processes in a number of identifiable risk areas with a view to
reducing the potential for miscarriages to occur. Miscarriages
of Justice and Investigative Processes It is first necessary to briefly describe what is
meant by the expressions "miscarriage of justice" and
"investigative processes" for the purposes of this paper. In the course of his examination of the significance
of miscarriages of justice, both generally and in the New Zealand context,
Sir Thomas Thorp adopted the primary meaning of the term as "an
unjustified conviction." [03] That approach is also taken in this paper;
but whilst we are principally concerned with the wrongful conviction of an
innocent accused, it will be suggested that it is equally as important to
keep in mind that the acquittal of a factually guilty accused due to the
fallibility of investigative processes, also results in a miscarriage of
justice. [04] The potential for
justice to be compromised also arises when a guilty accused escapes
conviction: "the criminal is to go free because the constable has
blundered." [05] The term "investigative processes"
includes all the various components of a police inquiry into serious crime
from the time it is reported until the time an arrest is made. It is not
confined to strictly investigative functions and also extends to those
processes that occur between arrest and trial, including the prosecution
disclosure process. Whilst it encompasses the role of external experts, only
passing reference will be made to the contribution made by forensic science
which is a topic dealt with elsewhere. Criminal
investigation processes Serious crime investigations can be particularly
complex. High levels of skill are required to manage the investigation, when
information that is rapidly accumulating from a number of sources may be
conflicting, ambiguous, or reveal only half the story. Effective interaction
with the victim, witnesses and suspects is vital to produce a complete,
accurate and concise record. Rigorous procedures for crime scene examinations,
securing of exhibits and documenting the investigative effort are essential. And
both the processes and the investigators who implement them must be able to
adapt as the investigation unfolds. Investigative processes are not confined to
activities performed solely by police officers. External expertise is
invariably involved in any significant investigation. The interface between
the internal investigative effort and that provided by external experts or
advisers is critical in two respects. First, the preliminary work done by
investigators may impact on the quality of the input provided by the expert;
for example the preservation and searching of a crime scene may directly
affect the result of the forensic scientist's analysis. Secondly, the
provision of objective opinions and free and frank advice by experts to the
investigators is vital. The skills and expertise of an external expert also provides
the opportunity for a different perspective to be brought to bear and for
views to be expressed that may differ from those held by the investigator.
This can be an antidote to tunnel vision, an issue to be discussed later. Every investigation into a serious crime is
different. There are, however, a number of relatively common elements that
collectively provide a framework for significant investigations. These
elements can be identified as: ·
The victim ·
Witnesses ·
The scene ·
Suspects ·
Intelligence
and analysis Not all these elements will be necessarily present
in every case, but they are likely to be found in most serious crime
investigations. Within each of these elements are processes that have the
potential to contribute to a miscarriage of justice. The victim is invariably a critical source of
information and usually the starting point for an investigation. Yet there
are instances where the victim has been honestly mistaken with identification
evidence and false or fictitious complaints are not unknown. Eyewitnesses may
also be mistaken in recounting their recollection of events and a witness
with a motive for doing so may deliberately provide false information. The
scene and more particularly, scene examinations have become increasingly
important feature of major investigations, yet inadvertent contamination of
the scene or exhibits, or even the deliberate "planting" of
evidence may lead to a wrongful conviction. And finally there is the
potential for intelligence sources, particularly criminal witnesses, or the
faulty analysis of available evidence, to contribute directly or indirectly
to a wrongful conviction. Investigative
processes as causes of error It is uncommon for a wrongful conviction to arise
from single error. Studies and inquiries have generally identified a
combination of factors as causing of a miscarriage of justice. And those
causes may be often be attributable in part to
investigative processes and in part to the trial process. So far as the former
is concerned, six specific areas have consistently been identified as
significant contributors to wrongful convictions. Each of these will be
briefly discussed. [06] Eyewitness Identification The notorious uncertainty of identification and the
fact that wrongful convictions have resulted following incorrect eyewitness
identifications has been acknowledged by the highest courts.[07]
Witness misidentification is said to be the single most important factor leading
to wrongful convictions. [08] In individual cases, the judicial scrutiny of
identifications arising from circumstances that tend
to increase the risk of misidentification often result in the evidence being
ruled inadmissible. [09] And over many years identification procedures have
been reviewed and legislative and operational changes made to address the
risks inherent in this evidence. [10] The various ways in which an
eyewitness's identification may become tainted were most recently highlighted
by the Sophonow Inquiry in Canada revealing in
particular the potential for investigative procedures to contribute to
misidentification and leading the Inquiry Commissioner to advance a number of
recommendations in line-up and photographic display procedures. [11] The potential for eyewitnesses
misidentification is ever present. It is an area where the protection offered
by the law and by judicial oversight of the fairness of police identification
procedures [12] can never guarantee freedom from error. [13] The refining of identification
processes is an ongoing responsibility. Disclosure Incomplete disclosure by the prosecution has been
identified as a significant factor contributing to a miscarriage of justice
in several inquiries. [14] Whilst on its face, the prosecution's duty to
disclose relevant material to the defence should be a straight forward matter
the difficulty often lies in determining what is "relevant." The
various guidelines developed to assist in that regard have had to achieve a
balance on the one hand between full and proper disclosure of the prosecution
case including material that detracts from it or that may assist the defence,
and on the other excluding material that is of no relevance at all in the
case and would be unduly burdensome to require the prosecution to provide. [15] In New Zealand the burden of prosecution disclosure
is often discharged at least initially by the investigator. There can be obvious difficulty in an
investigator who is charged with piecing together a prosecution case, making
a judgment as to material that may detract from that case and from
identifying material of relevance to the defence when the investigator may,
at that stage, have little idea of what is relevant. The ongoing nature of the
disclosure duty can also produce a further difficulty, for unless the
investigator is fully imbued with the philosophy of prosecution disclosure, a
notion that is not usually instinctive, the identification of material on the
investigation file that later becomes relevant for disclosure purposes may
not be pointed out to the prosecutor. The disclosure of an important job
sheet or statement may fall through the cracks; the prosecutor is quite unaware
of its existence and the investigator overlooks or fails to mention it. The existence of a parallel disclosure process
through the Official Information Act 1982 has occasionally served to bring to
light cases of incomplete prosecution disclosure. [16] Recommendations to
better prescribe and codify the prosecution's duty seem shortly to bear
fruit. [17] False complaints False allegations to the Police that a crime has
been committed are not uncommon. They range from insurance fraud to
complaints of sexual offending. A significant number of false complaints are
investigated each year and prosecutions result. [18] Wrongful convictions
arising from a victim's false complaint are relatively rare, but not unknown
in New Zealand. [19] Dealing with a possible false complaint is no easy
matter. Victims are often frightened, embarrassed and distressed when they
complain and this may affect their immediate recollection of events. Relevant
details can be missed; there may be inconsistencies in their account of what
happened. And even later, there is a very delicate balance between the appropriate
exploration of inconsistencies and doubting the genuineness of the victim's
complaint. This is ultimately an area where time and the checks and balances
in both investigative and trial processes generally work effectively to
reduce the risks of wrongful conviction arising from a false complaint. False confessions False confessions comprise a significant number of
cases of wrongful convictions, at least in the United Kingdom. [20] Whereas years ago, confessions that were
the product of violence or coercion would not have been regarded as
remarkable, improvements in interviewing processes have contributed to
significantly reduce their occurrence. Nevertheless, a body of literature has
documented hundreds of examples where confessions have subsequently proved to
be false. [21] Many were voluntarily,
but most were the result of the suspect's response to various interview
techniques adopted by the police. [22] Though the common law rules relating to confessions
are directed principally towards ensuring their voluntariness,
the rules are also concerned with reliability. Thus, there have been some
cases instances in New Zealand where convictions based on voluntary confessions
were subsequently set aside. [23] The introduction of video recording of suspect
interviews has significantly reduced the occasions when the resulting
statement has been successfully challenged. But the electronic recording of by
itself cannot provide absolute protection against false confessions.
Ultimately this is an area where the in vestment in police training and
professional development is likely to be amply repaid. Inmate witnesses Witnesses with criminal backgrounds frequently give
evidence in criminal trials. "Jailhouse informants",
or inmate witnesses form a particular group of witnesses with a criminal
background who have featured in cases where wrongful convictions have
occurred. The dangers in the evidence of inmate witnesses are obvious. Their criminal record often qualifies them
as a potentially unreliable witness; where they are facing serious charges,
or long terms of imprisonment, they may be motivated by the prospect of personal
benefit or favourable treatment in return for their
evidence; the testimony they typically give relating to unwitnessed
conversations they had with the accused (which usually includes a confession)
is easy to concoct and hard to refute. Whilst there is no rule excluding the testimony of
inmate witnesses, their evidence is invariably the subject of a strong
warning to the jury as to its inherent unreliability. [24] Inquiries into
miscarriages of justice have also highlighted the dangers of such evidence
and the Morin Inquiry in Canada in particular, devoted a substantial part of
its report to recommendations that such evidence be subjected to a higher
level of scrutiny and process. [25] The use of inmate witnesses (sometimes labeled in
the media as "secret witnesses") is relatively infrequent in New Zealand
and they are generally only called after their evidence has been carefully
evaluated in the light of the experience with such testimony. [26] Nevertheless this
evaluation takes place on a case-by-case basis and no formal policy with
respect to the evidence of inmate witnesses has been developed to date. Police mishandling of case This generic heading encompasses a range of
situations of which only a brief account is possible here. The mishandling
may be a simple error arising from the inadvertent failure to observe
standard investigative processes discussed above, or it may arise through
deliberate misconduct, or criminal offending. [27] In some instances of
miscarriages of justice, illegality or breaches of standard procedures
reflect not just a lack of individual competence, but also a wider cultural
malaise within the investigation team. [28] The "bending" of rules,
corner cutting and other unprofessional conduct by investigators on the
pretext that such actions are necessary to achieve the expected result is an
issue that every police organisation has to grapple with. Investigating crime
has aptly been described as a competitive business. Whilst it may seem an
ideal, developing and maintaining a culture where deliberate breaches of
process are simply not tolerated and adherence to high ethical standards of
professionalism is encouraged, is critical. The slippery slope to "noble
cause" corruption is never far away. Another issue under this heading which has emerged
as a factor in miscarriage of justice cases is tunnel vision on the part of
the investigators. "Tunnel vision" results in the investigator
focusing on a particular suspect or line of inquiry, to the exclusion of
others that should be investigated. It was identified in each of the Canadian
inquiries as directly contributing to the wrongful conviction of the accused.
[29] In one report it was described as "insidious" and a virus that
could affect anyone associated with the case. [30] There is often a fine line
between a determination to keep an investigation on track and tunnel
vision. A judgment call as to
whether a particular line of inquiry should be pursued as relevant to the
investigation when a suspect has been identified is often called for. But a
mindset that is focused on only one possibility and refuses to consider
others is to be avoided. Environmental
influences Serious crime investigations, like their resulting
trials, attract public interest. They also take place in an environment that
reflects the social and political times and the community in which they
occur. A number of influences shape this environment. First, there are a
number that are internal to the police investigation team. These include the
availability of resources (they are rarely sufficient), the expectations of
senior staff as to the progress of inquiries and the police culture in which
the investigators operate (is it a professional culture that encourages
thoroughness, adherence to investigation patterns a commitment to due
process; or is it one that accepts corner-cutting and expediency based on an
"end justifies the means" approach.) External influences can be even more powerful.
Where there is a victim, his or her expectations of the investigators and
those of the victim's family can be a source of energy and commitment, or
they can be a distraction. Public
reaction to the offence, particularly where the circumstances raise fears for
community safety, creates pressure for an early arrest. Media interest is
invariably intense. This can be a positive factor in terms of generating
public awareness, prompting witnesses to come forward, or it can be disruptive
and potentially compromising of fair trial values if journalists in a
competitive news environment push the boundaries of fair reporting, or become
"armchair detectives" seeking out their own witnesses and suspects.
If a suspected offender has been identified, the public's attitude to the
suspect can also generate pressure on the investigators to make a speedy
arrest and lead to possible future implications for a fair trial. Finally,
time is invariably a critical factor. Delay can result in lines of inquiry
drying up and evidence deteriorating as well as sapping the energy of the
investigators and public confidence in the investigation process. The impact of environmental influences on a serious
crime investigation cannot be underestimated. They are often critical to understanding why
wrongful convictions occur.
Individually they can be managed. In combination they can operate to
place intense pressure on investigators and create risks for the integrity of
investigative processes. Many of the most notorious cases which resulted in
the conviction of an innocent person occurred when the pressures of the
environmental factors led to due process standards being compromised. It is
no coincidence that in each of these cases it was some years later, when the environmental
influences ceased to be a factor, that the miscarriage of justice was exposed
and the innocence of the convicted person was accepted. [31] Developing
investigative processes There can be no doubt that mistakes made in the
course of serious crime inquires have been the cause of, or at least
contributed to miscarriages of justice in the past. Those mistakes can be
attributed to both weaknesses in the processes themselves, and to the human
failings in their execution. While we can learn from these mistakes and
enhance the processes and the skills of the investigator and others, the
"ghost of the innocent man convicted" is likely to remain with us.
Realistically, we can reduce the odds of wrongful convictions occurring, but
we are unlikely to achieve the virtual infallibility of the criminal justice
system that pervaded perceptions of Learned Hand's time. [32] While there is undoubtedly a need to consider
remedial mechanisms as part of the strategy to respond to potential
miscarriages of justice when they arise, there is arguably even greater
benefit to be gained by focusing on investigative processes. In doing that we should not confine ourselves to
the lessons learnt from cases where a wrongful conviction has resulted. There
is as much to be learned from the mistakes made which result in the acquittal of guilty accused. The
errors generally arise from the same processes and, of course, there are more
of them. Furthermore, considering the mistakes made in the broader sense of
the term "miscarriages of justice" provides the opportunity to do
so in the context of generally improving the quality of investigative process
and skills; improving them should also reduce the incidence wrongful
convictions. There are undoubtedly a number of ways in which
that might be achieved. Potential lies in at least the following areas: ·
The legal
framework and rules relating to those investigative processes from which
miscarriages of justice most commonly occur need to
kept under review. For example, identification procedures have, to some extent,
been enhanced by both legislative changes and judicial rulings. Disclosure
processes are shortly to become standardised
through the proposals contained in the Criminal Procedure Bill 2004. And
codification of the rules of evidence seems closer. It is vital that the
legal framework within which investigative processes operate is not just kept
up to date, but that it also reflects the delicate balance between the rights
of the individual and the operational needs of law enforcement. ·
The continuous
development of police investigative processes is critical. We have seen this
in areas such as the video interviewing of suspects and crime scene searching
and other developments are in contemplation.
Opportunities to incorporate or adapt overseas best practice have
never been greater with a growing international willingness to share
information. Areas such as victim, witness
and suspect interviewing and the creation of a bank of quality operational plans
that can be made electronically available when required are potential possibilities. Another area where processes have been
recently reviewed in overseas jurisdictions concerns the use of evidence of
inmates as witnesses. ·
The
effectiveness of improved investigative processes can be diluted without a corresponding
development in the skill levels of police officers and others responsible for
implementing them. In the past, improved crime scene management was reflected
in the deployment of specialist scene of crime officers. The relentless
progress of technology in the forensic sciences will increase the demands for
even higher levels of knowledge and skill in this and in other areas.. ·
Associated
with both these is the ongoing necessity to foster a healthy and professional
police culture towards the processes associated with serious crime investigations.
In one sense this poses a challenge. The time and training commitments
required of a police officer to become a detective, for example, can be an
obstacle to increasing the pool of qualified staff. Other possible strategies
such as developing investigators in discrete areas of the investigative
function such as the interviewing of suspects and informant handling may
complement the skills of the generalist. Even more importantly, ongoing
attention to ethics and integrity issues is central to maintaining the type
of culture that reduces the risks of miscarriages of justice occurring. ·
The handling
of environmental factors will continue to be a challenge. The impact of the
influences discussed above on investigative processes and their potential for
contributing to wrongful convictions will not diminish. The community's
reaction to serious crime and its perception of law and order issues is
unlikely to change. Nor is the media's response to serious crime
investigations. An awareness of these influences and the continuous
professional development of police leaders to recognise and manage them may
be all that can be expected. ·
Refinement of
processes associated with the investigation function offers perhaps the
greatest potential to reduce the risks of miscarriages of justice occurring.
The objectivity and independence of the prosecutor is one of the
institutional safeguards in our system. Yet in overseas inquiries and studies
that safeguard has occasionally been shown not to have operated to prevent a
wrongful conviction, when in hindsight it should have. [33] Strengthening processes to facilitate the prosecutor's
role has benefits for both investigative processes and the trial process. Two
current developments provide an opportunity to improve that interface. First,
the enactment of a disclosure regime will provide a foundation for the more
consistent discharge of the prosecution's obligation. [34] Secondly, improvements
hi pre-trial processes recently proposed by the Law Commission [35] offer a
framework for better decision making at a critical stage of a criminal investigation. Maintaining the efficacy and integrity of
investigative processes is no easy task. Inquiries into miscarriages of
justice have consistently identified weaknesses that have contributed to or
caused the wrongful conviction of an innocent accused. There is much to be gained, it is suggested, by strengthening those processes
where we can. The context for doing so, however, should not be confined by
reference only to those cases; it should incorporate the lessons to be
learned from those instances that result in the acquittal of the factually
guilty as well. References [01] United States v Garsson,
291 F. 646, 649 (SDNY, 1923): "Our procedure has been always haunted by
the ghost of the innocent man convicted. It is an unreal dream." [02] See,
for example The Inquiry Regarding
Thomas Sophonow; The Investigation, Prosecution and
Consideration of Entitlement to Compensation (the "Sophonow Inquiry")(Winnipeg
2001): http://www.gov.mb.ca/iustice/sophonow/toc.html (last accessed 7/2/06) 91. [03] Sir
Thomas Thorp Miscarriages of Justice (Auckland
2004), 4 [04] See
Glanville Williams, The Proof of Guilt (London
1963), 328 [05] People v Defore
242 NY 31, 21 per Cardozo J [06] These
six factors have, in various combinations, consistently emerged as the
principal causes of wrongful convictions. Five of them are referred to in a
recent study which identified the eight principal causes of wrongful
convictions in terms of both prevalence and potential for impact on a case:
see Bruce A MacFarlane, QC Convicting
the Innocent - A triple failure of the justice system (Manitoba 2004),
see www.canadiancriminallaw.com (last accessed 5/2/06) 51 [07] See,
for example, Alexander v R (1981)
145 CLR 395, 426 (HCA). [08] Bruce
A MacFarlane, QC, above n6, p51 [09] In
"fleeting glimpse" cases: R v
Turnbull [1977] QB 224; R v Hoto (1999) 8 CRNZ 17; dock identifications: R v Mclntosh 22/8/90,
Tipping J, HC Invercargill T8/90; and police identification procedures that
may suggest a particular suspect, see R
v Ormsby [1985] 1 NZLR 311 (CA); R v Tamihere
[1991] 1 NZLR 195, 198 (CA). [10] Nearly
30 years ago, the Criminal Law Reform Committee was asked to consider
identification procedures in New Zealand to enhance their fairness and
reliability: Criminal Law Reform Committee Report on Identification (Wellington 1978). See also Summary
Proceedings Act 1957, s 67A (identification evidence) s 67A; Crimes Act 1961,
ss 344B-344D. [11] Sophonow Inquiry, above n2. [12] R v Ormsby [ 1985] 1 NZLR 311,313 (CA) Somers J. [13] For
a recent example, see R v Dougherty
[1996] 3 NZLR 257 (CA). [14] See,
for example Royal Commission on the Donald Marshall Jr. Prosecution, Report (the "Marshall
Inquiry") (Nova Scotia 1989) 4, 25; Royal Commission on Criminal Justice
Report (the "Runciman Commission") (Cm 2263 London 1993) 91-97; R v Maguire [1992] 2 All ER 433 (CA); R v Ward [1993] 2 All ER 577 (CA). [15] Runciman Commission, above n14, p91. [16] See,
for example, R v Wickliffe [1987] 1
NZLR 55; (1986) 2 CRNZ 310 (CA); R v Appelgren [17] New
Zealand Law Commission Criminal
Procedure: Part One: Disclosure and Committal (NZLC R14 Wellington 1990);
Ministry of Justice Consultation Paper
Regarding Preliminary Hearings and Criminal Disclosure (Wellington 1997);
New Zealand Law Commission Criminal Prosecution
(NZLC R66 Wellington 2000) 70-78. [18] See,
for example R v Whaanga
9 October 2003, CA 248/02 (allegation of sexual offences by [19] See,
for example, R v Momo
(1983) 1 CRNZ 67, where the accused was found guilty by a jury, but [20] See
Bruce A MacFarlane, above n6, p78, fn 367. [21] See
R v Oickle (2000)
190 DLR (4th) 257 paras 34-35 (SCC). [22] See
R v Oickle
above n 21, paras 37-46. [23] R v A 17/12/03, CA299/03; R v Lloyd 25/8/04, CA72/02 and later R v Lloyd 17/6/05, High Court Auckland , CRI-1995-088-808007, Yenning J. [24] R v Chignell
[1991] 2 NZLR 257; (1996) 6 CRNZ 103 (CA); Pollitt v The Queen (1992) 174 CLR 558 (HCA); R v Joyce [2000] NSWCCA 259. [25] The
Commission on Proceedings involving Guy Paul Morin Report (the "Morin Inquiry")(Toronto
1998): http://www.attornevgeneral.ius.gov.on.ca/english/about/pubs/morin
(last accessed 9 February 2006) recs 36-69. [26] The
difficulties are illustrated in R v Chignell [1991]
2 NZLR 257; (1996) 6 CRNZ 103 (CA). [27] Report of the Royal Commission to Inquire
into the Circumstances of the Convictions of Arthur Allen Thomas for the
Murders of David Harvey Crewe and Jeanette Lenore Crewe (Wellington 1980)
96-98. [28] See
the Sophonow Inquiry, above n2, p91. [29] Marshall
Inquiry, above n14, p8; Morin Inquiry, above n 25, p 1136. [30] Sophonow Inquiry, above n2, p37 [31] See,
for example, the Runciman Inquiry, above n 14;
Royal Commission of Inquiry into the Chamberlain Convictions, Report (1987); the Morin Inquiry,
above n 25; the Sophonow Inquiry, above n 2; also R v McIlkenny [1992]
2 All ER 417 (CA); R v Maguire [1992]
2 All ER 433 (CA); R v Ward [1993]
2 All ER 577 (CA); R v Bentley [1998]
Crim LR 330 (CA). [32] See
also Edwin Borchard, Convicting the Innocent (New York 1932) v. [33] See,
for example the Sophonow Inquiry, above n 2, p 83. [34] Criminal
Procedure Bill 2004. [35] New
Zealand Law Commission Criminal
Pre-Trial Processes: Justice Through Efficiency (NZLC R89, Wellington,
2005) |
