Miscarriages of Justice
Nandor Tanczos has blogged on how the Bain case highlights the need for a Criminal Review Office. Now despite my personal view on Bain’s culpability, I do agree that generally there should be some sort of body that can investigate miscarriages of justice – outside the formal court appeal system. The Peter Ellis case is a clear example of why it is needed.
Such projects in other countries like the US, has found many people who were later proven innocent, yet convicted.
Simon Power has yet to respond to the request for a Royal Commission into the Ellis case. An Ellis Commission followed by establishing such a body to review other possible miscarriages of justice would be an excellent step towards increasing faith in the justice system.
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June 8th, 2009 at 1:03 pm
The fact the Peter Ellis case has not been over turned in itself shows the strong flaws in the current system.
June 8th, 2009 at 1:11 pm
After watching the doco on the Scott Watson case, I agree it is very likely he is innocent too.
June 8th, 2009 at 1:16 pm
problem is that the people in such a review authority are going to have to find ways to justify their existence, so you’ll get an ever increasing number of cases that need to be put before such a body, and more and more of those cases being discovered to have some fault in the orginal proceedings needing them to be sent to retrial.
June 8th, 2009 at 1:31 pm
And David Tamihere – Urban Hoglan’s body found nowhere near where the Police evidence indicated it should have been and with the watch that Tamihere had supposedly stolen from the body and given to his son still on the body when it was found. And the secret cellmate witnesses, one of whom has retracted his evidence.
I’m a fan of the jury system, but as someone with a previous conviction for manslaughter whose record was publicly leaked by the Police well before the trial, Tamihere didn’t have a chance before any jury.
June 8th, 2009 at 1:33 pm
The problem is not to “increase faith in the justice system”. The problem is to fix it so it is worthy of some faith.
Yes, there is a need for a far better process for correcting miscarriages of justice. It should not be another bureaucracy though. The present Justice Department has blocked Ellis’s case at every turn. The same mindset would undoubtedly prevail in any organisation subject to the same bureaucratic butt-protecting culture and management.
My personal view is that courts should be privatised to competing private providers with independent regulatory oversight. That would remove the present hideous hidebound defence of any challenge to the monolithic justice establishment and its decisions and powers.
June 8th, 2009 at 1:37 pm
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June 8th, 2009 at 1:42 pm
Regarding Scott Watson, didn’t they find Ben & Olivias dna on Scotts boat? That would be damning.
June 8th, 2009 at 1:52 pm
There was supposedly one single hair of Olivias found – but then the bag with the comparative samples was found to have a hole in the bottom of it.
The ‘mystery man’ who various witnesses saw had longer than Scott so the Police said he cut his hair the day after which was untrue. Also the mystery man had narrower eyes and no one pointed to Scott until the Police used a new photo which caught Scott in a half blink so he had the ‘slitty’ eyes identified!
June 8th, 2009 at 1:52 pm
You mean like… some … kind…. of… privy counicil?
June 8th, 2009 at 1:52 pm
Toad – as a lefty, were you happy with Labour ditching the privy council?
June 8th, 2009 at 1:56 pm
wreck1080, my recollection is that 2 hairs that were consistent with Olivia’s DNA were supposedly found on a rug that had been seized from Watson’s boat.
Several possibilities:
1) They were transferred onto Watson’s clothes, either directly or via a third person, in the crowded scene at Furneaux Lodge.
2) Accidental cross-contamination in the ESR lab where both the rug and reference hair samples taken from Olivia’s hairbrush were examined.
3) Deliberate cross-contamination – they were deliberately planted by Police who believed Watson was their man but didn’t have enough evidence to get a conviction (much like the caartridge case in the Arthur Allan Thomas case).
4) Olivia was on Watson’s boat.
Only one of those possibilities lends any support to his conviction.
June 8th, 2009 at 2:00 pm
Would this cover the stupidity of Christchurch juries?
June 8th, 2009 at 2:06 pm
dime said: Toad – as a lefty, were you happy with Labour ditching the privy council?
Hmmm, I can see both sides of this one dime. From an access to justice perspective, it was extraordinarily prohibitive in cost for people to have to go to the Privy Council. But I do have some doubts about the depth of judicial expertise in New Zealand for us to have our own Supreme Court. My preference would have been for a Supreme Court that also drew top judicial minds from overseas jurisdictions to sit with our own.
June 8th, 2009 at 2:06 pm
Toad, it’s my understanding that DNA analysis has come a long way in the last few years. Modern techniques used with this particular sample are likely to be less conclusive than the one presented at trial.
June 8th, 2009 at 2:13 pm
toad – yea the cost of appealing to the privy council was huge.. but that probably stopped a lot of people wasting the courts time.
NZ is so small, do we honestly believe that jury hadnt heard some details of the bain trial?
i could live with your option of bringing in judges from overseas, although ill never forgive Labour for making the change without consulting the people!
June 8th, 2009 at 2:34 pm
Hear hear David (and Nandor) inasmuch as a review system is urgently necessary. But I tend to agree with Alan Wilkinson when he says:
Though I don’t agree with his suggestion of privatised courts as a solution. Rather that the government should fund a national Innocence Project, which could research and present cases worthy of retrial (or in some cases, simply being overturned) to a judicial review body.
And, as Murray points out, the Privy Council – while not perfect – has functioned for centuries as a judicial review so its reinstatement (perhaps with the addition of some resources to permit applications to the High Court to be dealt with more expeditiously) seems like the logical, and lowest cost, option.
The problem with simply reinstating the Privy Council and leaving it at that is that you have to become something of a cause celebre, as Ellis and Bain did, with media and notable legal figures making a lot of noise and giving publicity and pro bono help, before you can get to that stage. Or you need to be very rich.
June 8th, 2009 at 2:38 pm
coge (63) Vote: 0 0 Says:
June 8th, 2009 at 2:06 pm
Toad, it’s my understanding that DNA analysis has come a long way in the last few years. Modern techniques used with this particular sample are likely to be less conclusive than the one presented at trial.
That is correct. The ‘claimed’ DNA match of the hair fibre ‘claimed ‘ to be that of Olivia Hope, is by today’s standard of DNA matching, is poor by comparison.
June 8th, 2009 at 2:45 pm
Rex, why not privatise courts if we can privatise prisons? Running a court is even simpler and like Corrections the present court bureaucracy is inefficient and incompetent almost beyond belief.
Effectively the business community have already privatised the commercial courts by switching overwhelmingly to cost-effective private mediation and arbitration services. I see no reason the criminal courts should be left stuck in their present time-warp.
June 8th, 2009 at 2:46 pm
I think Ben and Olivia are still alive.
Somewhere in South America!
June 8th, 2009 at 3:00 pm
Nandor – why did you wait until you had left parliment to start making sense? is this why you were pushed? not left enough? not whacky enough?
June 8th, 2009 at 3:06 pm
Alan, are you talking simply of the administration of the courts? In which case I’d agree with you. I’m just not sure how it would work? If MegaCourt Ltd told me there was an 18 month delay to get a criminal matter heard, would I pop down the road and try SpeedyCourt Ltd? Or would one corporation run the courts but be liable to be replaced if they didn’t meet performance targets? That’d help, I admit, but my experience with privatised prisons is that it takes a lot of screw-ups over a relatively long period (several years) before a contract is pulled.
Regardless, judicial officers (and I’d have to include Registrars, as they get to make some decisions) would need to remain on the public payroll, however. Accountability at that level could be brought about by moving to a system of electing judges, magistrates and even JPs (at least those who preside in our courts) but imagine the squeals from those who see it as a sinecure if that were ever seriously mooted.
June 8th, 2009 at 3:11 pm
“If MegaCourt Ltd told me there was an 18 month delay to get a criminal matter heard, would I pop down the road and try SpeedyCourt Ltd?”
Absolutely! Competition is essential or we just get a private monopoly which is even worse than a state monopoly.
I don’t see why judicial officers have to be on the public payroll. I’d leave them appointed/regulated by the state, but the private courts would employ them on contract and assign them as they saw fit.
June 8th, 2009 at 3:22 pm
The problem with the Privy Council is criminal cases almost never got there because (unlike commercial cases) they had to apply for leave to appeal. I think Bain was refused that right the first time around. In effect, for criminal cases, the Court of Appeal WAS the final court of appeal but was it always too full to fulfill that function properly.
Anyway, despite concerns mentioned by various people, I think that a body standing outside the system is the only way to address these kinds of cases – thats why a Criminal Appeals Review Office would be so useful. It has worked pretty well in the UK as far as I understand.
Rex – you said “the government should fund a national Innocence Project, which could research and present cases worthy of retrial (or in some cases, simply being overturned) to a judicial review body”. Thats exactly what a CARO would do, as I understand.
btw you may know that The Innocence Project already exists here. I don’t think it gets any funding from Govt. Its already had at least one conference where a heap of excellent info was presented to help make the justice system work better – a lot of it based on research into those cases in the states where people convicted of crimes were later exonerated by DNA evidence, as well as the psychophysics of witness id etc. Worth getting to these if people are interested in this kind of thing.
As for the DNA in the Watson trial – I think it was that which primarily convinced the jury but as has already been pointed out it was subject to cross contamination problems from examining the sample bag from Watson’s blanket in the same place and shortly after examining hairs from Olivia’s brush. In addition the hole in the sample bag is v. concerning IMO.
ps On the matter of privatising courts: if there was choice over where matters were heard, doesn’t that just delay things further, while lawyers dispute which court to appear in? Who decides in the event of failure to agree. And if you support this, I assume you support a Maori justice system? Or do we confine provision to the corporate sector?
pps. Dime, I did say all this stuff while I was an MP. Maybe not being an MP just makes it easier for some people to hear me
June 8th, 2009 at 3:25 pm
Alan Wilkinson suggests:
Ah, well that offers better accountability than the “we’ll sack them (eventually) if they screw up” model, so I’d support that.
The potential conflicts of interest that could arise are enormous. If Judge Smith rules against a company owned by MegaCourt’s largest shareholder and then his contract isn’t renewed by MegaCourt, where does he sue? In SpeedyCourt, where Judge Jones feels pressured to find against MegaCourt and award a crippling payout?…
I don’t think judges, magistrates etc personally contribute to the endless delays and inefficiencies of the courts (indeed those I know moan heartily about the bureaucracy that slows them down), so I don’t see a huge gain in making them private contractors, whereas I see a lot of fish hooks in doing so.
June 8th, 2009 at 3:28 pm
The biggest problem with the NZ courts is that you have a safety net at the bottom of the cliff, rather than a fence at the top. In other words, for various tiers of criminal and commerical cases and/or, for any case that might have significant consequences (or perhaps be of public interest), you stack the bench with a panel of judges and/or, laypersons thus minimising in the first instance, all the human failings of a judge presiding alone. The problem with the current system is that if a judge has erred, at the fall of hs gavel you are then caught in a system that is systemically flawed. To even have a chance of escaping an injustice in this country, there is a heavy price to pay. And as in the case of say Bain and Watson, the price is your freedom. It is my very strong view that the system is both morally and proceduraly corrupt and flawed, and that a good number of the cases that currently make it through to the Appeal Court (if not nearly all), could be dealt with much more effectively and fairly, if a system along the lines I propose, was implemented.
I have seen the price and damage that a sick old judge, full of prejudices and acting alone, can have. A further, and public example of this would be in the matter Crown vs Watson. This sick, old judge who literally despised Watson, had no business being on the bench and some of his procedural errors were an afront to even the basic tenents of justice. I would venture to say that had there been two other judges on the bench that day, Watson today would be a free man.
June 8th, 2009 at 3:29 pm
Hi Nandor. Thanks for your thoughts.
Re choice of court, defendant’s prerogative in the case of disagreement.
We’re not talking about different laws so I don’t see the particular relevance of a Maori justice system. I have no objection to a Maori organisation running a court just as I am relaxed about one running a private prison under a common universal regulatory regime.
June 8th, 2009 at 3:35 pm
Rex, I don’t agree the conflicts of interest would be as significant as within the self-interest of the old boys club at present.
The simple solution would be to bring in external or retired judges in the very rare situations that the court companies themselves were involved either criminally or commercially.
June 8th, 2009 at 3:57 pm
Nandor:
Yes, I’m aware of the NZ Innocence Project. Like IPs everywhere it struggles for funds as I understand it, and is reliant on the largesse of a university. While working on cases is a great teaching tool for students, the fact that many Projects rely on the students and the first line filter for the hundreds or sometimes thousands of cases they’re asked to review worries me.
If your experience of courts is limited, you may not be aware of the potential for verdicts to be perverted by, as Paul Marsden puts it, a “sick old judge, full of prejudices and acting alone”. Or where the lawyer for one party is simply outclassed by the one appearing for the other.
I prefer an Innocence Project over a CARO (assuming a CARO would be a government body) because of the additional degree of independence it affords. The government would simply bulk fund a provider (probably a university) and leave it to do its job. In a small country like NZ, where everyone in the legal system knows everyone else, true independence is hard to find. I’d certainly support a CARO as second best option though.
Incidentally I can’t locate an email for you on your blog and I’d like to sound you out about attending an Australian event next year. Can you drop me a line to RexWiderstrom@hotmail.com? Thanks.
June 8th, 2009 at 4:03 pm
Is not the problem the way people are tried for a crime, rather than the court system? There is general agreement that the prosecution of suspects by Police is flawed; they tend to decide on the perpetrator and then concentrate all their efforts justifying their initial decision at the exclusion of other possibilities. If they are biased (as in the Peter Ellis case) this just exacerbates what is an unsatisfactory arrangement. And if planting evidence helps then that too is possible. Better they should be the servants of an investigating judge (not a prosecutor) who could collate and examine the the evidence, interview witnesses, and prepare the indictment.
A sidebar to the Bain case; the jury was prepared to accept the possibility of the Police planting evidence; the jury in the Arthur Alan Thomas trial rejected the suggestion. A sign of the times I think.
June 8th, 2009 at 4:08 pm
The Privy Council is a red herring in this sort of debate. It is a final court of appeal and will not hear cases based around the evidence, only on legal matters. Bain’s retrial was given on the basis of legal issues, not the quality or otherwise of the evidence.
So with cases like Ellis and Watson it is difficult to find appropriate grounds for a PC appeal. I’m for an official mechanism, let’s call it the “Innocence Project” as that exists, to critically examine the evidence and information around contentious cases. There are more than a few that arise, Ellis, Tamihere, Watson, Lundy, where there are serious issues with the evidence itself as well as the conduct of the case. I don’t have a fixed idea on how it would be made up, except that there should be no police or ex-police involved except as expert witness types.
June 8th, 2009 at 4:14 pm
trout, there will always be instances of police malpractice and corruption simply because they are human or they sometimes have both opportunity and motive.
Some will be detected at trial. Some will not be uncovered until after the trial.
The problem with our system is not that we have a major problem with the police but that we have a major problem with the justice and court bureaucracy failing to address initial miscarriages of justice. Privatising the courts as I have suggested will break the monolithic nature of the justice system and force better peer review and correction of errors.
June 8th, 2009 at 4:25 pm
If it brought about efficiencies and reduced waiting times I would be in favour of privatisation of lower court rooms. However courts of appeal I believe should never be privatised.
Having been in a district court however I dont think that they are partically inefficient in regards to hearing cases, the majority of them process pretty darn swiftly so I would be doubtful of any benefits..
June 8th, 2009 at 4:26 pm
Rex, I certainly agree that a jury can be swayed by a biased judge. Also that trials can be no more than proving who is the best lawyer – in fact treating the trial process as a game by lawyers was one of the factors that has been identified (eg MacFarlane) as making miscarriages of justice more likely.
I have no objection to making a CARO more independent by funding the innocence project or some such to do it. It would still have to have some statutory power, I imagine, to ensure its recommendations don’t get ignored but it seems a fine idea.
Trout – I agree there seems to be an issue with police investigatory procedure as you have stated. I guess this is an issue of training. I’d love to talk to a detective about how police investigations are conducted (and how they are supposed to be conducted if this differs). This seems to be the beginning factor in eg the Scott Watson fiasco.
Alan – I didn’t think most proposals for a parallel justice system call for two laws, in general. My understanding was the call was primarily about a different process. Kind of similar to how restorative justice differs from a formal court.
June 8th, 2009 at 4:35 pm
Our systems biggest problem is that the police (whose job its is to ‘police’ the community – ie: maintain law and order – ) are also the group who prosecute the law at court.
Obviously this has to involve various conflicts of interest. In the current situation the police are forced into getting ‘good results’ – ie: Convictions.
To get convictions you obviously only put forward the evidence that will lead to this. This means the police have to be biased to do this. Which means that society is slowly but surely losing confidence. As a person involved in an ‘incident’ one must always be aware that the investigating police are also looking for evidence to get a positive outcome for them – a conviction. They dont care who they charge – they charge the person who they can put in the dock with the most evidence against them. And as we have seen in the bain case (along with lots of others) the evidence will be selected and that which isnt in favour of the police will be discarded, hidden, delted, removed, suppressed etc.
June 8th, 2009 at 4:45 pm
Alan Wilkinson (179) Vote: 1 0 Says:
June 8th, 2009 at 4:14 pm
trout, there will always be instances of police malpractice and corruption simply because they are human or they sometimes have both opportunity and motive.
As indeed can be judges. And the biggest singular step towards preventing miscarrige’s of justice is not allowing judges to sit on the bench alone. Of course, this is already evident by our current system with our Court of Appeal where up to five judges can sit. Is it then not logical to essentially reverse this, and put them at the front end of justice, thus using their collective wisdom to prevent (or minimise) miscarriges of justice in the first place? Surely, that is not rocket science?
June 8th, 2009 at 5:04 pm
Perhaps what we need too, are independent, crime scene investigators who are not driven by ego or, subject to the pressure of the public beying for an arrest, which was the case with Watson? The public pressure both on the police and the judiciary for an arrest and a conviction, was intense. Justice went out the window and Watson was the fall guy in the wrong place, at the wrong time.
June 8th, 2009 at 5:21 pm
Further to my comment (above), the wise and narly old coppers with practical and extensive, investagative experiences are now few and far between, and police personel turnover is high. Fortunately, modern DNA analysis compensates in part, for this lack of practical experience, knowledge and skills.
June 8th, 2009 at 5:32 pm
There’s some exciting ideas coming through here:
- A privatised court system (though debate as to its extent).
- An independent crime scene investigation organisation.
- Separation of investigation and prosecution functions.
- Establishment of a publicly funded Innocence Project / CARO, with independence from the system a priority.
So (without wanting to derail ongoing discussion about any of these, which IMHO is one of the best debates on Kiwiblog to be had in a long while)… how do we go about getting traction for any of these? The Law Commission – and the obvious systemic failures highlighted in the Thomas, Ellis and similar cases – all suggest the need for reform.
But politicians, while some pay lip service, do nothing, knowing there’s votes to be had by conducting a lawn ‘n’ order “auction” every election. And when one party tries to call a halt, as the NSW Attorney General tried earlier this year – then dollars to donuts the other side will scream “soft on crime”.
How do we set about getting these changes into law? Find an MP who agrees and put up a Private Members’ Bill, then lobby to get enough support to get it sent to a Select Committee would be my guess.
June 8th, 2009 at 5:52 pm
I also believe if the judicary engaged more openly and transparently with society (which I believe as the servants of the people they are are obliged to do), the courts would not only engender more respect, but the public would be more willing to support them. In other words, crime would also drop.
June 8th, 2009 at 6:20 pm
Isn’t any form of arbitration an example of a (non-criminal) court system?
I’m presuming that if, say, two Muslim people wished to have their commercial dealings dealt with under sharia law, then they’d be entitled to write that and the name of a person or body who would arbitrate the dispute in to the contract. And that if one party took a case to a traditional court, then that court would rule in favour of the previously agreed arbitration procedure.
June 8th, 2009 at 7:55 pm
About 10 months ago I wrote a post for NZCPD.com about the need for an independent prosecution service( during a discussion on Watson) That post was taken up by Sensible Sentencing people and passed to Simon Power whom I subsequently met at a function. I had a brief conversation with him and asked if he had read the email. He had and was well aware of the contents and appeared to be really receptive to the idea. His one question was how could it be paid for?
There are huge advantages for this. Apart from the police issues which we all know about there is the issue of people who commit crimes that are found out or investigated by others but where the police are either not interested or don’t have the time to be bothered to follow up and prosecute. There is a conflict of actual jobs and resources.What is the policemans job and is he actually a prosecutor.
Remove the Prosecution service from the police to an independent unit as they have in Northern Territory and other places.
The benefit of that is enormous. We would no longer have the dishonesty that goes with police prosecution service. The police would have to justify their evidence before the prosecutor acted.
I am of the opinion that David Bain ,Ellis, Watson and probably a few more would have either had no trial or would have had a better trial.
The other important reason to change the Prosecution Service is that if any person or agency found a criminal act by some other person they could go to the Prosecution service and have their complaint dealt with by a court. At present only the police can do that and for many hundreds of cases where evidence exists the Police simply haven’t got the resources.
PI’s could then be used to catch criminals and take the evidence to a Prosecutor. This would be a major deterrent to business crime.
Another change required is to shift from adversarial trials to inquisitorial trials. That is, trials that are there to establish the truth rather than a contest of the lawyers and Barristers. Bains original Barrister has made a statement about that this last weekend.
Presently, once a policeman launches you into the systen you have shit all chance of beating them or the system. Makes them dishonest and the system anti justice.
June 8th, 2009 at 8:16 pm
All you bloody wowsers,now all crimnals are innocent.
As far as Im concerned the lot can rot.
Rule number one dont put yourself ina position that can compromise you self,in most cases this is sadly lacking
June 8th, 2009 at 8:29 pm
Of course miscarriages of justice are only a very minor part of the hideous inefficiencies of our court system.
The greatest is the huge cost and minimal benefits of the system which is why the commercial courts are almost dead because businesses have voted with their feet for private mediation services.
In contrast, the criminal courts are overwhelmed by cases brought by the bureaucracy for whom cost efficiency is no object.
Most court hearings achieve nothing except a conviction and a sentence. In most cases the offender reoffends within a short time after release. In nearly every case the victim receives nothing. In nearly every case nothing is learnt and nothing is fixed as a result of the time and money spent in preparing and hearing the case.
It is, in my opinion, the most perfect example of provider-capture in our society. The legal profession and court employees capture almost the entire benefit of the huge costs paid by taxpayers for this system. Little wonder no independent analysis and critiques of its cost-effectiveness are ever permitted by the profession. There is a huge need to introduce innovation and competition.
June 8th, 2009 at 8:41 pm
Viking2:
Agreed. The Police have a prosecution service and dedicated prosecutors. They also have in-house lawyers (though it’s uniformed officers who do the prosecuting). All of that costs money, as does Crown Law’s criminal functionality.
Since you’ve started the discussion with him, can I suggest you write to Power and suggest he asks his own mandarins to get him a figure for the costs of running all that bureaucracy. And while he’s at it, the delays.
And those cases that never make it to court for want of being prosecuted – like the drongo that smashed into my son’s parked car and drove off. The cops rang him, asked him in for coffee and biscuits and a caht, then filed it till he arrived. Which he didn’t. So now the 6 months provided for prosecution (Summary Proceedings Act 1957) has elapsed. Yet, as my son pointed out, come to them with a “recovered memory” of being molested 50 years ago and they’re off round the alleged perpetrator’s house with lights flashing and batons out.
“What price justice?” might also be a question to ask Power. At present we’re certainly not getting it from the police.
June 9th, 2009 at 9:14 am
I’d be in favour of an independent prosecutions service also. There should be no more cost than there currently is to run the police prosecutions, police legal section and finally crown prosecutors. All you’d have to do is take the prosecutors from Meredith Connell in Auckland (for example), along with prosecutors from police prosecutions in Auckland and merge them into a CPS. How does that cost more?
You’d then do the same for each other locality. It could be that Auckland could serve Hamilton even, with some prosecutors within the Hamilton police service as back up for emergency appearances etc. I don’t think it would be that difficult or costly.