Miscarriages of Justice and what to do about them

There is no such thing as a perfect justice system, where the guilty are always convicted and the innocent acquitted. In fact the most heinous mass murderers, the tyrants and warmongers that decide the fate of nations rarely even stand trial. Justice, like truth, is a journey rather than a destination.

One traveller on that road is Professor Graham Zellick, who has been in Aotearoa recently to talk about the UK Criminal Cases Review Commission. This was set up in 1997, following some high profile cases in the UK, to review possible miscarriages of justice. His talk was both informative and compelling, partly because New Zealand's justice system is a part of the 'common law family' that stems from Britain and is subject to many of the same problems.

That problems exist in the New Zealand appellate system is not news. Public disquiet remains about a number of high profile convictions. Other verdicts, such as Arthur Allan Thomas, David Doherty, Alec Waugh and David Bain have been overturned after lengthy terms of imprisonment. It was concern about such cases that led retired High Court Judge Thomas Thorpe to conduct a self funded investigation into miscarriages of justice and recommend that New Zealand establish a body like the UK CCRC.

Appeal courts find it very difficult to correct certain kinds of problems in the court system. According to Zellick, this is partly due to an excessive confidence the system places on jury verdicts. Appeal courts are happy to look at questions of law, procedural issues and the like. They are very reluctant to look at questions of fact and say that the jury simply got it wrong.

One of the ways that juries can be misled is through expert witnesses. Zellick spoke about the case of Sally Clark in the UK who was imprisoned for murdering her cot-death baby, mostly on the basis of now-discredited theories of a Dr Meadows. As he spoke I was reminded of the FBI evidence that was so crucial in convicting John Barlow, evidence that has now been shown to be wrong.

Although it is not a point he made, it also seems likely that juries give unwarranted attention to certain kinds of evidence. Contrary to common sense, two of the biggest causes of wrongful conviction (as evidenced by DNA based exonerations) are confessions and eye witness identification evidence that most ordinary people would expect to be reliable.

The UK CCRC gets about 1000 applications a year, refers 30 - 40 cases back to the courts and about 70 percent of those result in a conviction being quashed. This is all at a cost of around £8 million. The Scottish CCRC, serving a population of around 5 million people, costs about £1 million. When you consider that it costs about $90 000 to keep one person in prison for a year then a CCRC in Aotearoa might well save us money, if effective justice is not a strong enough argument for the Government.

Currently in this country once appeal rights have been exhausted all that remains is an appeal to the Crown for the prerogative of mercy. According to Zellick, this is a bit muddled in New Zealand. The prerogative of mercy is originally a power that the Crown has to overturn a conviction or to commute a sentence. Under the Crime Act this has been changed into an ability for the Governor-General in Council to refer a conviction back to the courts. In practise it is a decision of the Cabinet, which is constitutionally undesirable. The process has been described as ad hoc and inadequate by at least one QC.

Certainly the prerogative of mercy has not provided any benefit for most of the cases where it seems likely or possible that the conviction is unsafe. Note that this does not necessarily mean that the person can be proven innocent, but rather that their conviction cannot be sustained by the evidence. Our system requires proof "beyond reasonable doubt" in criminal cases and it is questionable in number of cases whether this threshold was ever reached. Peter Ellis, John Barlow and David Tamihere are all cases that in my opinion should be looked at by an independent body.

Even more compelling is the case of Scott Watson, who was convicted for the murder of Olivia Hope and Ben Smart in the Marlborough Sounds in 1999. Having read a reasonable amount of different material about the case, I am convinced that not only is there a miscarriage of justice but that Scott Watson is innocent. Unfortunately he, and the others, seem unlikely to get justice until New Zealand has an independent, transparent body to look at alleged miscarriages of justice and do something about it when it finds then.