|
|
Law Reform |
|
One of the nightmarish crises that can face an
ordinary citizen is imprisonment for a crime that he/she had nothing to do
with, or which never took place at all. For five years I watched Arthur
Thomas as he paced alone, up and down the A.Block yard at Paremoremo, day
after day, looking at the ground and shaking his head as he tried to make
sense of what had happened to him. Other inmates sometimes made fun of Arthur and
called him 'broken arse', because he never really came to terms with his
conviction and sentence, but most of us knew that Arthur - a simple farmer
with strong faith in the integrity of the police and the process of justice -
had plenty of reason to feel confused. To his great bewilderment, he found that the
criminal justice system doesn't always work in the way it's supposed to. My purpose in this paper is to look at the problem
of judicial miscarriage from the point of view of the prison inmate, and to
suggest an extension to the remedy proposed by Sir Tom Thorp. The
Incidence of Wrongful Conviction Justice Thorp, in his excellent paper, has argued
that the incidence of wrongful conviction for felonies is higher than
previously imagined, but he thinks it is probably less than 1%. That may be
so in the totality of cases, because approximately 75% are uncontested. But
if you isolate those that have gone to trial, I would suggest that the ratio
of error is probably higher. Most prisons contain people who claim they are
innocent, but the majority 'cop it sweet' and just get on with their 'lags'.
However among the minority who swear innocence there are a few who seem
genuinely not guilty and who are considered so by the criminal fraternity.
Mostly these are people with previous criminal records, who have exhausted
their appeal rights and accepted that, as things stand, there is little more
that can be done. So you never hear about them beyond the prison walls. I came across a surprising number of cases when I
went to prison in 1975. A typical example was Merv Rich, who made no secret
of the fact that he was a professional criminal, but in prison he was adamant
that he was not guilty of the robbery he was jailed for in 1974. He didn't
complain about it; he just stated as a matter of fact that he didn't do it,
and he wasn't a guy known for telling lies. For that reason, people were inclined
to believe him. Today there is one particularly disturbing case
which seems to have passed unnoticed: that is the case of Teina Pora,
convicted of the murder of Susan Burdett in Auckland in 1992. This was the
murder of which serial rapist Malcolm Rewa was acquitted, even though DNA
showed that he had raped Burdett about the time that she was killed. Since
there is no evidence that Pora and Rewa ever knew each other, the
circumstances behind Pora's conviction must leave anyone who looks at them
with grave doubts about the safety of the verdict. Wrongful convictions are not always this serious,
but I have seen the same flaws in process apply in minor cases. On two
occasions following the Springbok Tour of 1981, for example, I watched five
men get convicted of crimes they denied and which I know for a certain fact,
somebody else committed. Because the person who committed them was me. These of course involved relatively minor charges
and you don't hear about such cases. But the same process applies. Police
Falsification of Evidence Some of the worst instances of judicial miscarriage
have been the result of deliberate falsification of evidence by the police.
In prison it's known as being 'dudded up', or 'fitted up', and prisoners are
very aware of it. Arthur Thomas is the best-known case, of course, convicted
largely on the basis of a bullet case fired from his rifle, planted by
detectives in a garden beside the house of the deceased. Evidence-planting was quite common in the 1970s.
Former Detective Ray Stapleton once told me, for example, that when he was in
the police in the 1970s it was common practice to rub gelignite into the
clothing of safe-blowing suspects before sending them off to the DSIR for
analysis. The reliance on DNA these days makes
evidence-planting particularly dangerous. How easy would it have been for
somebody to have planted the hairs of Olivia Hope that were found in Scott
Watson's yacht? You don't need a corrupt police force for that to happen. All
it takes is one crooked investigator. I'd like to believe that this kind of thing is less
common now than it once was, but it would be naive to think it doesn't
happen. In 1998, Craig Withey was discharged without trial in Palmerston
North after it was shown that police had altered a witness statement in order
to place Withey at the scene of a drug offence (Police Complaints Authority,
2003). In 1996, Parliament was told that 50 former undercover officers had admitted
giving perjured evidence in criminal trials on at least ten occasions each (NZPD
1996, v.555: 12885-12888). The
Verbal When I was in prison in the 1970s the thing that
criminals feared most about the police was the practice known as
'verballing'. 'Verballing' refers to the fabrication of false confessions or
inculpatory statements by the police, either before or after arrest. A good example of verballing occurred in a robbery
trial in 1979, when accused Terry Ngamu was able to produce interview notes
containing inculpatory statements allegedly made by him, written in the hand
of an Auckland detective. Ngamu said that the detective had written the
notes, while telling Ngamu that he was going to 'verbal' him and 'fit him up'
with the robbery. Ngamu retrieved the notes from a rubbish bin when the
detective left the room, and produced them in court. The detective, who had
stated on oath that he had never interviewed Ngamu, was investigated at a
high level but was not charged with perjury (Auckland Star, 25 May 1979). My own conviction in 1975 was also based largely on
the perjured 'verbal' evidence of a different Auckland detective, who said he
had overheard me agreeing to do a heroin deal one night while hiding in a
garden near my house. I was guilty of the charge of offering to sell heroin,
but I did not agree to do any sort of a deal on the night in question and the
evidence used convict me, as well as the scenario that the prosecution
presented to the jury, were both based upon a fiction. Jailhouse
Informants Today, with the use of videotaped evidence, the
verbal is less of a problem than before, but the possibility of wrongful
conviction has been enhanced by the use of jailhouse informants. These were
used in the highly-profiled murder trials of Ross Appelgren (1985), David
Tamihere (1990), and Scott Watson (1999). Highly unreliable witnesses such as
Ricardo Sannd, who is a career criminal and a diagnosed sociopath, and Travis
Burns, who brutally beat Whangaparaoa housewife Joanne McCarthy to death in
1998, have both been used as key witnesses in trials and have both been
admitted to the police witness protection scheme. Sannd was used in the robbery
case against his friend, Arthur Taylor in 1993; and was on witness protection
when he stole the Tissot painting in 1998. Burns was to have been used in the
murder case against his friend, Chris Lewis, for the murder of Tanya Furlan
at her home in 1996 (Lewis committed suicide before trial). Burns, who
received a $30,000 reward for fingering Lewis, was on witness protection when
he beat Joanne McCarthy to death at her home, in almost identical circumstances to the way Furlan was killed
two years before. In prison, the most serious offence an inmate can
commit is to 'nark', or inform, on one of his fellows. Prisoners who do this
know they are breaking the most sacred mandate of their community. Typically,
narks are repeat offenders and social misfits who act out of self interest
and without any thought or concern for higher principles. That very fact
alone, as Justice Thorp and Scott Optican have both observed, makes them
inherently unreliable as witnesses. There is a clear need, in my mind, for judges to
issue the sternest of warnings to juries about the dangers of relying on
evidence of this type. What is
to be Done? Given the very clear evidence that miscarriages of
justice can and do occur, Tom Thorp's suggestion of a broadening of appeal
grounds and the establishment of a Criminal Cases Review Commission (CCRC) is
hard to argue with. Alongside this, however, I think it is important also to
consider that the crime of perjury - which can carry up to 14 years
imprisonment - could be prosecuted and punished far more rigorously than is
currently the case. I have referred to what happened in the Ngamu trial. A
more serious problem in recent years has involved false complaints, particularly
of sexual assault. In 2004, 290 people were charged with making false complaints
and police figures show that in up to 30% of sex abuse cases police are unable
to satisfy themselves that an offence has, in fact, occurred. Perhaps the most notorious case of false allegation
was that of Waikato University law student Nick Wills, accused of rape in
1995. If Wills had been convicted he would have faced an eight-year prison
term and a ruined career. But after admitting that she'd made the whole thing
up, his accuser got off with 150 hours community work and $5,000 reparation,
and the court awarded her name suppression. This is not at all unusual and the cases I have
briefly reviewed in this paper suggest strongly to me that the judiciary does
not take the crime of perjury, or evidence tampering, or other forms of
wilful falsification, seriously enough. If the integrity of the justice
system is to be maintained, then I think it is essential that the courts make
a very firm statement about people who contrive to pervert its course. So
while I welcome the idea of a remedy through the establishment of a CCRC, in
my argument, further reinforcement of the barricade against wrongful
imprisonment is needed in the form of a hardening of the way that people who
knowingly corrupt our system of justice are treated by the courts. Reference Police Complaints Authority, 2003; Report of the Police
Complaints Authority on Certain Issues Arising out of a Police Undercover
Operation Conducted in 1993 and 1994. Unpublished. |
