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September 28, 2014 | by  | in Features Homepage | [ssba]


If you’re going to put someone in prison for the rest of their life, you want to be sure they’re responsible for the crime of which they’re accused. But how can you ever be sure? And what happens if you get it wrong?

I doubt anyone would turn down a game of Never Have I Ever with David Bain. Despite the fact that the result would have little effect on most, I’d bet good money that more people have an opinion on Mark Lundy’s guilt than on who leads our government. Law student or not, there’s something deeply intriguing about criminal cases; we can never really know what’s happened for sure – often coming down to a matter of he said, she said. Criminal cases have to be proved “beyond reasonable doubt”, but of course, there’s always doubt. How much there is seems to depend on a lawyer’s power of imagination. While this is all very interesting for us watching trials unfold on the news, it’s a real issue for New Zealand’s justice system. For all you know, it could be your problem if you get called up for jury service tomorrow.

There’s a multitude of philosophical and theoretical interpretations of miscarriages of justice. Given New Zealand’s pragmatic approach to, well, everything, the best way to tell if a miscarriage has occurred is ask whether the verdict is ‘satisfactory’ – are the facts accurate, has proper procedure been followed, was the jury’s decision morally sound? As Chief Justice Dame Sian Elias mentioned in her interview with Salient, “there have always been miscarriages of justice… we [just] didn’t hear about them, because people were executed.” But now we are, and we’re hearing about them a lot.

New Zealand’s most famous miscarriage-of-justice case, and perhaps case full-stop, is that of David Bain. I’m sure we’re all familiar with the story, but let’s indulge in revision for a moment. Bain was convicted in 1995 of the murder of his parents and siblings early one morning in Dunedin. At trial, the unsuccessful defence was that Robin, David’s father, had killed the others and then committed suicide while David was out on his paper run. After 13.5 years of a life sentence, Bain successfully appealed his conviction to the Privy Council and a retrial was ordered on the basis that a substantial miscarriage of justice had occurred. At the second trial, Bain was acquitted.

After a year’s investigation into Bain’s case to determine whether Bain should be awarded compensation for his wrongful conviction, retired Canadian Supreme Court Justice Ian Binnie reported Dunedin police had made “egregious errors”, and that the evidence showed “the miscarriage of justice was the direct result of a police investigation characterised by carelessness and lack of due diligence”. The Crown failed to preserve the evidence, instead allowing the family home, the scene of the crime, to be burned down.

Under the royal-prerogative-of-mercy system, people who feel they have been wrongfully convicted can apply to the Governor-General to have their case reopened – usually when new evidence has come to light after trial. But lately, these pardons have been thin on the ground. Availability doesn’t necessarily mean effectiveness. Despite the Binnie Report declaring that David Bain is innocent, Bain has not been granted a pardon, nor financial compensation for the time he spent in prison. This demonstrates that serious crime is not just a judicial problem, but a political one. Canterbury University criminologist Dr Greg Newbold says “politicians… have the power. They can, they have, and they should intervene in cases where it is clear injustices have taken place… The Minister [of Justice] could do it, anyone with guts could do it.” But with political pressure from groups like the Sensible Sentencing Trust, and a wary voting public with strong opinions, awarding Bain millions of dollars’worth of compensation is not something a politician would choose to do lightly. And this is an issue. Political favour shouldn’t be a factor in declaring an individual’s guilt or innocence.

The Bain case raises a lot of questions. Are our police and prosecutorial system equipped to deal with serious crime? Is New Zealand’s criminal-justice system seriously flawed?

In response to public pressure from groups like the Sensible Sentencing Trust, the National Government has taken an increasingly punitive approach to criminal justice, imposing harsher sentences and sharpening focus on the rights of victims. Of course, victims’ rights are an important consideration, but we need to be sure that we’re equipped to cope with such involvement and not forget that those accused of crimes are still human beings. If we’re going to be more punitive, we also have to be prepared to invest more in rehabilitation, and provide an accessible means of reviewing cases where the prosecution may have got it wrong. It doesn’t seem as if we’ve learnt anything from the Bain case.

Susan Burdett was raped and murdered in her home in 1992. A year later, Teina Pora was arrested on other charges, and confessed to the rape and murder of Burdett. Pora was held by police for four days, and questioned about the Burdett case for 14 hours without a lawyer present. The Police Association officially called for a review of Pora’s conviction following concern among some senior detectives. Award-winning criminal profiler Dave Henwood believes convict Malcolm Rewa is responsible for Burdett’s rape and murder. In April this year, after 20 years in prison, Pora was released on parole awaiting his appeal to the Privy Council. The case has been the subject of immense public discussion – how could the police seemingly have got it so wrong? While it’s reassuring that senior detectives voiced concerns, with so many questioning the correctness of Pora’s confession and conviction, one can’t help but wonder why nothing was done sooner. Why has he had to wait so long? What’s more, Pora’s appeal is being funded by legal aid – but what if it wasn’t? If someone’s subjected to the power of our justice system, their ability to challenge its operation shouldn’t be a matter of being able to afford it.

In 2005, Sir Thomas Thorp, a retired High Court judge, compared New Zealand’s system of dealing with claimed miscarriages of justice with systems in England and Scotland. Thorp estimated at least 20 innocent people were imprisoned in New Zealand. He recommended that an independent specialist body be established to identify miscarriages of justice and put them up for consideration. This would replace the current system, which leaves it to individuals to make their own appeals.

One of the benefits of an independent review body is the reduction of the ‘ethnic imbalance’ of claimants. Most high-profile miscarriage cases have been those of white men – David Bain, Mark Lundy, Peter Ellis, Arthur Allan Thomas. Thorp’s report observed New Zealand has a relatively low proportion of claims for miscarriage. Rather than the result of prosecutions being flawlessly carried out, Thorp suggests the low rate of claims is due to the fact that Māori and Pasifika inmates, who make up over 60 per cent of New Zealand’s prison population, rarely made claims. The low proportion of claims brought by Māori and Pasifika inmates could be attributed to lack of understanding about the appeal process, or not enough money to fund appeals.

The most common bar to claims of miscarriage of justice is money. Court cases are expensive, and it’s not as if everyone has a savings account for ‘just in case I get prosecuted for something I didn’t do’. Queen’s Counsel Nigel Hampton said New Zealand’s appeal system rests on “white knights” who are prepared to work for little, if any, payment – like barrister Jonathan Krebs, who represents Teina Pora alongside private detective Tim McKinnel.

Another serious issue that needs to be addressed is the difficulty for appellate courts to reconsider evidence that is not directly in front of them, but rather recorded in words on paper. In most cases of miscarriage of justice, it’s these facts and witness testimonies that really matter. An independent body could be given investigative powers beyond the judiciary’s current scope.

Thorp identified the essential causes of miscarriages of justice as problems with investigation, evidence at trial, legal representation of the accused, the trial process, or perhaps a faulty appeal. Especially where an accused is reliant on legal aid (and therefore has little choice as to who will represent them), they have little control over these elements of the criminal-justice process they’re subjected to. A balance must be struck between New Zealand’s punitive streak and increasing emphasis on victim’s rights, and the rights of the accused to a fair trial. What’s more, as has been demonstrated time and again, it’s extremely difficult to proceed with an appeal, even with an immense body of evidence suggesting your trial was plagued by some pretty fundamental errors.

An independent review body, which receives, investigates and considers cases of claimed wrongful conviction, would ideally be more accessible than the current appeal process, and ensure all claimants are afforded the same investigative resources. It would also be well-placed to determine whether someone should be compensated for wrongful conviction, removing political pressures that are currently placed on those who get to decide.

This is not at all to say that our justice system is seriously flawed – we’re all human, after all, and some error is inevitable. We have systems in place to address that, but it seems they could be better. But hey, at least we’re not executing people anymore.


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  1. Jon says:

    Totally agree NZ desperately needs a Criminal Cases Review Commission but Adams and her predecessors in John Key’s corrupt government will never favour one because they are part of the problem so can never be part of the solution. As for McVicar and his SST the fact that he joined Colin Craig’s election farce speaks volumes about his integrity. Having recently been released from prison after Court of Appeal quashed my convictions I can assure your readers that our criminal [in]justice system is fundamentally flawed and Crown lawyers want convictions at any cost even to the extent of hiding truth from juries and supporting complainants who they know are lying through their teeth.

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