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10
June 2007
The
Right to Justice?
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 The
rule of law and the right to justice are fundamental to a
democratic society. The thought that someone could be
imprisoned for a crime they didn’t commit is the stuff of
nightmares.
New
Zealand’s most famous such case was that of Arthur Allen
Thomas. Convicted in 1971 for the deaths of Pukekawa
couple Harvey and Jeanette Crewe and reconvicted after an
appeal in 1973 and again in 1975. An appeal to the Privy
Council was rejected in 1978, but largely as a result of the
compelling evidence provided in books written by Pat Booth, a
journalist with the Auckland Star, and British author David
Yallop, Thomas was granted a free pardon in 1979.
In
1980 a Royal Commission of Inquiry found:
“Mr Thomas
should never have been convicted of the crimes, since there
was a real doubt as to his guilt. He should accordingly have
been found not guilty by the juries. Our own findings go
further. They make it clear that he should never even have
been charged by the Police. He was charged and convicted
because the Police manufactured evidence against him, and
withheld evidence of value to his defence.
They make the point: “At our hearings there have been often
repeated statements about whether Mr Thomas can be proved
innocent. Such a proposition concerns us. It seems to imply
that there falls on to him some onus positively to prove
himself innocent. Such a proposition is wrong and contrary to
the golden thread which runs right through the system of
British criminal justice, namely that the Prosecution has the
duty to prove the accused guilty and until so proved he had to
be regarded as innocent”. (To read the Report click
here>>>)
In
its report, the Royal Commission makes mention of New
Zealand’s many 'crusaders' who attempt to right a wrong or
fight for a principle at great personal sacrifice in time and
money. Certainly, Mr Thomas would not have been pardoned if it
had not been for the valiant efforts of his champions. David
Dougherty, jailed for rape in 1992 would not have been retried
and acquitted if Donna Chisholm of the Sunday Star-Times had
not argued his case. Nor would David Bain have had his
conviction quashed by the Privy Council if it had not been for
Joe Karam and his books.
Lynley
Hood, through her book “A City Possessed”, has been a
champion for Peter Ellis, convicted in the Christchurch Civic
Creche case, and now another champion, journalist Keith
Hunter, is arguing the innocence of Scott Watson - convicted
of murdering Ben Smart and Olivia Hope on New Year’s eve in
1997 - in his book “Trial by Trickery”.
Last
year, retired High Court Judge Sir Thomas Thorpe released a
report “Miscarriages of Justice” in which he examined
miscarriages of justice in England, Scotland, the US, Canada
and Australia and concluded that up to 5 percent of all
convictions could be miscarriages of justice. He also analysed
53 applications to the Ministry of Justice that claimed a
miscarriage of justice and concluded that some 20 people may
at present be wrongly imprisoned in New Zealand.
The
“Innocence Project” has recently been established at
Victoria University to help fight for freedom for those who
have been wrongly convicted. The movement began in New York in
1992 and has now spread to Canada, Wales, England and
Australia, where teams of legal experts, psychologists,
scientists and journalists work together to identify
potentially wrongful convictions and campaign for justice.
And there is no shortage of wrongful convictions. A report
from the US Department for Justice, “Convicted by Juries,
Exonerated by Science” showed that in the seven years from
1989, new forensic DNA testing excluded about 20 per cent of
sexual assault case suspects. The five main reasons for
wrongful conviction: mistaken eyewitness identification,
witnesses being coerced to make confessions, misconduct by law
enforcement agencies, unreliable forensic laboratory work, and
ineffective representation by defence counsel. (To read the
report, click
here>>>)
Another
report “A Broken System: Error Rates in Capital Cases,
1973-1995” undertaken by researchers at Columbia University
that looks at mistakes in capital punishment cases, where one
would expect the highest standards of care to be taken, found
that “during
the 23-year study period, the
overall rate of prejudicial error was 68%. In
other words, courts found serious,
reversible error in nearly 7 of every 10 of the thousands of
capital sentences that were fully reviewed during the period.
Capital trials produce so many mistakes that it takes three judicial inspections to catch
them - leaving grave
doubt whether we do catch them all. After state
courts threw out 47% of death sentences due to serious flaws, a later federal review
found "serious error" - error undermining the
reliability of the outcome - in 40%
of the remaining sentences”. (To read the report click
here>>>)
The
report goes on to identify the following two main reasons for
these errors: “egregiously
incompetent defense lawyers who didn't even look for - and
demonstrably missed - important evidence that the
defendant was innocent or did not deserve to die; and police
or prosecutors who did discover that kind of evidence
but suppressed it, again keeping it from the jury”.
Bill
Hodge, Associate Professor of Law at Auckland University, in
the Forward to “Trial by Trickery” describes Keith
Hunter’s work as a “relentless, detailed dissection of the
Scott Watson investigation and prosecution, and a legitimate commentary
on the adversary system as providing for a contest, not
a search for truth”.
He
goes on to describe the ‘mystery yacht’ in the case as
“a forty-foot ketch, being an old-fashioned wooden vessel,
with two masts, a blue feature band, a row of portholes, heaps
of elaborate rope work on the decks, a high rear deck, akin to
a Chinese ‘junk’, and a high step up to board”, whereas
“Watson’s Blade,
was a 26-foot steel sloop about half the size of the other
vessel, with only a single mast and none of the features of
the larger vessel, and a step down to board”.
The
‘mystery man’, who boarded the ketch with Ben and Olivia,
was “repeatedly identified by witnesses unknown to each
other, as a wiry man, with lank, unkempt, wavy,
shoulder-length hair, wearing a green shirt” whereas
“Watson, was repeatedly identified as a solid man, with
close-cropped hair, clean-shaven and wearing a blue denim
shirt”.
In
a review of the book in the Law Society’s “Law Talk”
Victoria University law lecturer and journalist Steven Price
makes the point that Guy Wallace, the water taxi driver who
was the main witness against Watson, now insists he was
hoodwinked into making the identification. Price states that
the prosecution theory that Watson could steam out into Cook
Strait and dump the bodies, was physically impossible given
the boat speed and timeframe, and that this “two-trip”
theory - which was sprung on the jury at the last moment - was
disproved by the occupants of the boat Blade
was tethered to.
He concludes: “Hunter asserts that those involved in
securing Watson’s conviction were party to a horrendous
miscarriage of justice. He
says the police were deceptive and tunnel-visioned, the media
helped spread damaging misinformation, and the prosecutors
misled the jury.
“They’re
serious allegations. But
Hunter explains his grounds for them.
His case is persuasive.
The onus now, I think, is on the police and prosecution
to answer it. What
has Hunter got wrong? What
other evidence has he missed out that should convince us that
Watson is guilty? Is
there a good response to his allegations of police and
prosecution misconduct?
“I
phoned the police and asked those questions.
I was told that Rob Pope, who was in charge of the
Watson investigation and is now Deputy Police Commissioner,
hadn’t read the book, and didn’t want to relitigate the
case, which after all had been through an appeals process.
“Not
good enough, I say.
“Hunter
has raised serious questions here, and they go to the heart of
public confidence in the administration of justice.
The fact that an innocent man may be in jail is just
the beginning of what should trouble us about this case”.
(To read the review, click
here>>>)
Keith
Hunter put together a documentary on the case, “Murder on
the Blade” which was screened in 2003. So convinced is he
that Scott Watson is innocent, that he wrote his book to set
out the issues. I invited him to be the NZCPR Guest
Commentator this week in the hope that it might help to bring
justice to bear. Keith’s article can be viewed by clicking
the sidebar link.
The
poll this week asks: Do you believe that the New Zealand
Supreme Court offers the same level of impartiality that was
offered by the Privy Council? Take
part in poll >>>
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