|
Sunday Star Times
September 3, 2000
Page 4
Compensation ends seven years in hell
by Donna Chisholm
A man wrongly convicted of molesting his son has
received a landmark $570,000 payout. Donna Chisholm investigates how the figure
was set
"When I arrived in Mt Eden, the guard said to me: ‘Is there a chance
that you could commit suicide tonight'? I said ‘If ever I am going to commit
suicide it's going to be tonight because they have just found an innocent man
guilty'."
So began one man's 14 months of torment in jail - wrongly branded a pedophile
for abusing his son, locked up for a crime he did not commit.
Whether to compensate him for that horror - and how - has taken the Justice
Ministry and Queen's Counsel David Williams 3 years to decide.
In a profession in which precedents are everything, New Zealand has few. The most
famous payout, $1 million to Arthur Allan Thomas, pardoned of the Crewe murders, is the most recent.
The Justice Ministry believed the latest case could legitimately be pegged to
the Thomas package, working out at roughly $100,000 - adjusted for inflation
- for each year inside. More conservatively, the Crown Law Office suggested
that by comparison, the latest case "must be seen as coming at the lower
end".
But Williams believed Crown Law over-emphasised police misconduct as a
factor. Police in the Thomas case, of course, were found to have planted
evidence to incriminate him.
In the case of the wrongly convicted father - we'll call him Michael - police
were found to have prosecuted in good faith. They did, however, admit a
"serious error of judgement" in failing to tell defence counsel
before trial that Michael's son had retracted his allegations.
Police believed the retraction was not significant and pointed out the child
"retracted the retraction" within 48 hours. They now accept that if
the retraction had been disclosed, the trial verdict may have been different.
The Thomas compensation was a useful comparison, Williams said -
inflation-adjusted, it would have resulted in Michael being paid about
$336,000 for his 14 months' imprisonment, plus costs of $170,000 incurred by
him and his family, including legal bills, mortgage interest, telephone and
travelling expenses to visit him in jail.
Ultimately Williams recommended a higher comparative figure than Thomas -
$400,000 plus actual expenses. It followed compelling submissions by
Michael's counsel, barrister Rob Harrison, that the payment should be
assessed on a week by week basis. "The first week is no doubt the most
heinous someone has to go through, being placed in an alien and extremely
frightening environment," Harrison
said.
He believed any future compensation scale had to be flexible enough to
account for previous exposure to prison, and different responses to it.
"If someone is so miserable in jail that they are continually attempting
suicide because they can't cope with the environment I think they are
entitled to more than someone who goes in and it is their home away from
home."
A seasoned inmate, said Harrison, would
understand the system and hierarchy and have associates in prison who could
make his life easier. But the wrongly convicted clean-skin, would "find
themselves in a society run by an incomprehensible set of rules and laws that
inmates themselves have established".
And while everyone did hard time in jail, those imprisoned for sexual
abuse did their time doubly hard.
Michael's description of his first days is graphic.
"I was put in a round room, made to strip in front of the guards. I was
then told to go to sleep on an airbed on the floor with a duvet over it. They
kept shining a light on me every 15 minutes. I could not sleep that night
because all I could think about was my family, my girlfriend and my boys. I felt
so alone and so helpless. I couldn't believe I was there because I had done
nothing wrong. I basically just lived hour by hour throughout those first few
days. My mother and father and my girlfriend managed to come in on that first
day. We could only speak to each other on the telephone and not touch.
"I just started to feel a total hatred for the system that had got me
there. I was stuck in a godforsaken hellhole for something I had not done.
That anger is still inside of me today.
"I was forced to line up for my food every day, forced to stand in a
line to wait for the phone, strip searched after every visit I had and been
told that if I didn't admit to what I had done, life would be a lot harder
and longer in prison for me."
Harrison submitted Michael should receive a
total package close to $653,500, claiming $50,000 compensation for his first
week in jail, and the five following weeks on a declining scale down to
$30,000.
After six weeks inside, he said, Michael's life improved in that he began to
become more accustomed to his surroundings.
Recognising "the realities of compensation", Harrison
claimed $5000 a week for each of the following 54 weeks Michael was jailed.
Michael's torment was exacerbated when it was later found his former wife's
new partner was the real abuser of his two sons - molestation which continued
while Michael was in jail.
David Williams investigated but rejected the suggestion both men abused the
boys and accepted his innocence was proven beyond reasonable doubt.
Justice Minister Phil Goff has signalled future payouts will be less
generous, arguing victims of crime are not compensated.
"That's true," said Harrison,
"but you could argue if the state turns someone into a victim then they
are in a position to compensate them. Most victims suffer at the hands of
someone who would never have the adequate means to compensate."
Goff believes the threshold for proving innocence beyond reasonable doubt is
too high, and payments should be made when innocence is proven on the balance
of probabilities.
Auckland University associate professor of law,
Warren Brookbanks disagrees. "It is necessary to maintain a very high
standard if only to exclude unmeritorious cases."
But is it possible for every truly innocent man to prove a negative? Maybe
not, he admits, but for those who can't, it's just tough luck - no justice
system is perfect.
Some observers have expressed reservations about the secrecy surrounding the
investigation by the QCs. Statements made to them, for example, are unable to
be tested under the adversarial system of the courts.
"In an ideal world," said Brookbanks, "you would say it could
be done through a normal judicial process, but the adversarial process is
likely to take more time and be more costly."
In its 1998 report on compensating the wrongly convicted, the Law Commission
set criteria which excluded from consideration those acquitted on a retrial
after appeal. Under those conditions, the high-profile David Dougherty affair
would have been ruled out. Because of the public furore which followed then
Justice Minister Doug Graham's refusal to compensate him, Queen's Counsel
Stuart Grieve is investigating his case, with a report due later this year.
Though he believed those acquitted at retrial should be eligible, Harrison said even if the criteria were not satisfied,
the minister had discretion to act if there were compelling reasons "and
perhaps Dougherty's is an example of that".
Ironically, his client's case would have been excluded under the draft guidelines
because his convictions were quashed at his first appeal and he did not have
to go to "extraordinary means" to achieve his freedom.
Harrison believes the commission and Doug
Graham recognised because of Michael's case that this was inherently unfair.
Flawed or not, said Harrison,
New Zealand's
scheme was probably the best of those he had reviewed in other Commonwealth
countries.
Michael's case was unique because he was the first to prove his innocence
beyond reasonable doubt. Thomas had not been required to do that and because
Goff was changing the rules, others would probably not have to.
Michael himself will treasure most not the cheque, when it comes, but his
letter of apology from Police Commissioner Rob Robinson. "The letter is
what we did this for. If any of the agencies think I'm still guilty I can
shove this right up their noses. It's over. After seven years in hell."
|
