David Bain has just been found not guilty for the 1994 murder of his family in Dunedin– a series of killings he was convicted for in 1995. He spent 13 years in prison and it was only after a massive and dedicated effort by supporters, in particular Joe Karam, that his initial conviction was quashed and he was free on bail to be retried.
There is a lot of speculation about whether he will get compensation. I'm not going to add my thoughts. What interests me is the many other people in prison for crimes they did not commit. Former High Court judge Sir Thomas Thorp, in his 2006 report into miscarriages of justice in New Zealand, suggested that as many as twenty people might be wrongfully imprisoned for serious offenses in New Zealand. He cited work in 2002 by Bruce MacFarlane, the then Deputy Attorney General of Manitoba, on what factors make a miscarriage of justice more likely.
MacFarlane listed four predisposing factors: public pressure for a conviction, unpopular defendants, lawyers turning the process of trial into a game, and noble cause corruption - that is, persuading witnesses to alter their testimony, or planting evidence, because police genuinely believe that the person charged is guilty.
He also listed eight direct causes. These were: eyewitness misidentification; police mishandling of the police investigation; inadequate disclosure by the prosecution; unreliable scientific evidence; using criminals as witnesses, such as jailhouse informants; inadequate defence work; false confessions; and misleading circumstantial evidence. He said that these factors are present throughout the Commonwealth jurisdictions. There is no doubt that they are present in a number of cases in New Zealand. Personally I believe that the convictions of Peter Ellis and John Barlow also need to be reviewed, but to go further, I am convinced that Scott Watson is entirely innocent of the killing of Ben Smart and Olivia Hope in the Marlborough Sounds in 1997.
Whether he will get a chance to show it is another matter. Wrongful convictions are incredibly difficult to overturn, because of the design of our appeal system. Once a jury has convicted, appeals can only be, by and large, on points of law. There are good reasons for this, but it does mean that substantive problems do not get picked up in some cases.
The last resort in such cases is a petition to the Governor-General for a retrial or for a pardon. These are handled internally by the Ministry of Justice and the process is ad hoc and entirely unsatisfactory. That's why justice Thorp's main recommendation was for an independent Criminal Appeals Review Office, as exists in Canada and the United Kingdom. Many prominent lawyers, the Criminal Bar Association and the Law Society have all echoed Sir Thomas's call, especially in the wake of the Rex Haig and David Doherty cases. Parliament's Justice and Electoral Select Committee backed the idea after it looked into the petitions calling for an inquiry into the Peter Ellis case.
Justice shouldn't rely on the unpaid, some times personally costly, efforts of supporters to bring these stories to light. It's time a Criminal Appeal Review Office was introduced in New Zealand.