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NZCPR Forum  Opinion piece by Keith Hunter www.hunterproductions.co.nz 10 June 07 The Most Obvious Miscarriage of All

There’s much talk now of the call, lately by Sir Thomas Thorpe but in fact made by many others many times over many years, for an office of criminal review to sort out courtroom mistakes and free all the wrongly convicted. This may get the thumbs up to acknowledge the spanking the Privy Council has just given our Court of Appeal in Bain, but also because something has to be done to cover for the suicidal detachment of our appeal system from the PC. Although recent history records that, excepting Peter Mahon, the truth has only been supplied to the satisfaction of the people by reviewers from outside our justice system, as in the Thomas Inquiry and lately Bain, we now rely entirely on members and ex-members of the same Court of Appeal that received the spanking. 

The problem at this level is cultural. Rather than get it right, the inclination is to ignore outside critics by hiding behind the rules. When the New Zealand Judicial System addressed the Crewes Murder Case for the last time in January 1975 it foreshadowed the difficulties the System has today with criticism and contrary opinion. The Court of Appeal had to determine whether either of the bullets that killed Harvey and Jeanette Crewe “could have been assembled with the cartridge case identified as exhibit number 350 …” . If there was a fit then the cartridge case was evidence of murder by a man named Arthur Allan Thomas. If there was no fit then the cartridge case bullet was evidence of conspiracy – by the System.

Rather than provide argument aiming at the ‘beyond reasonable doubt’ standard that underpins our criminal law, the Court looked to sophistry and a standard weaker even than the one which attaches to civil litigation. In the Court’s judgment Sir Richard Wild wrote:

“The word used is “could” which indicates possibility as distinct from likelihood. In our opinion, therefore, …the applicant must exclude a reasonable possibility that either of the bullets was assembled with Exhibit 350………

Then:

….On the probabilities we are ... prepared to accept the submission made on behalf of Thomas that cartridge cases derived from these two hobs could not have been manufactured and shipped to New Zealand in time to be assembled with (the fatal) bullets….

At this stage Thomas was innocent and the System guilty! But then:

“..we are unable to exclude the reasonable possibility that Exhibit 350 was produced in Australia at some time before October 1963 and therefore could have been loaded in New Zealand with (one of the fatal bullets).

And so, while A.A.Thomas was in its own stated opinion probably innocent, the Court of Appeal consigned him back to prison for the rest of his life on the grounds that guilt was a reasonable possibility. A war been truth and pride had been won by pride. And so it is now with appeals and a court which seemingly perceives its function as being to reject them as antipathetic to the validity of the system.

Importantly, the Thomas Appeal was not heard by a panel of lesser judges. If there had been a Supreme Court in 1975, the five who treated Thomas thus would have been the five judges on the Supreme Court.

It may be too late to return to the Privy Council but there are many ways to improve the situation prior to appeal, and again they are founded in cultural change. Five years after the system washed its hands of Thomas, a Royal Commission of Inquiry disagreed with the Court of Appeal, finding that the infamous cartridge case had in fact been planted by the police. Typically, the Commissioner of Police came up with an exquisite Catch 22 to avoid recognizing the Royal Commission’s report. He declared that the inquiry into the murders of Jeannette and Harvey Crewe could not be reopened without new evidence, failing to observe that there would be no new evidence unless the inquiry was reopened. Of no consequence was the multimillion dollar Commission’s report that a detective inspector of police was a liar who deliberately framed an innocent man. Pride (again) and protection. An office of review won’t change the attitude behind this.

Acknowledgement of wrongful conviction is at the bottom of the cliff and it pales in comparison with prevention at the top. We must stop wrongful convictions occurring in the first place. What we need is an overall re-assessment of the adversarial system that rules our courtrooms – a system where the rules suit Big Time Wrestling better than a quest for justice, where it’s about being fair to the competitors and not to the community. The only people who don’t condemn the system’s role in perverting justice are those who derive their income and especially their status from it.

Last week a former Law Society president saluted the right of lawyers to police themselves rather than be subject to the law like everyone else. Ironically, nowhere is the lawyer’s legal immunity better exhibited than in the freedom of counsel to mislead courts without committing perjury. If a lawyer lies in court they are not answerable to the law because they don’t swear an oath to the truth as we ordinary humans must. If they misbehave in court it’s not the law that responds. It is supposedly, but in truth never, their friends in their industrial bodies, the law societies. And yet which occupational group constantly tops the polls for the most untrustworthy?

Despite Thomas and Bain and Haig and Ellis and Dougherty and Lundy and the rest, the leading instance, by far, of a guilty system is to be found in the full-system assault on Scott Watson. Pursued at age 26 principally because he had been mildly delinquent at ages 16 to 18. My recently published book, Trial by Trickery, reveals how  Watson was publicly identified as the suspect and then for five months profoundly, repeatedly and falsely defamed in the press nationwide prior to his arrest. The defamations continue to this day, with anonymously-authored false stories in the press about his behaviour in prison. He is now a man of no worth, in the public mind properly imprisoned whether guilty of two murders or not.

His reputation as a person annihilated, Watson was next confronted in court by a prosecution team which repeatedly misquoted the evidence to the jury. The book details the misquotation and the way the jury was misled into believing that Watson had fitted the description of the killer, that he had scrubbed his boat clean to hide evidence, he had wiped all his music cassettes, that no-one had reported seeing the killer’s boat (remember the ketch?), and so on – all later contradicted by the Crown’s own witnesses.

Most offensive of all, on the last day of the trial the Prosecutors revealed that their scenario for the murders was fundamentally the opposite of the one they had been seen to argue for the previous three months. On that day the defence lawyers discovered that for the entire trial they had unwittingly been defending their client against the wrong case. While the prosecutors had cosseted the scenario for several months before the trial, the defence knew of it on the trial’s last day. Thus Watson was convicted on a case he had had no opportunity to defend himself against – because he hadn’t known what it was.

Then, his trial was conducted by a judge who had been comprehensively misinformed prior to the trial in sworn affidavits that were even more defamatory than had been the original press stories, a judge who in his final words to the jury instructed it to put the country’s concerns about the case to rest by supplying ‘finality’ to it - without explaining how ‘finality’ would be supplied by a verdict of ‘not guilty’.

These are not new claims. I first brought them to public attention in November 2003 on Television One in a feature-length documentary, Murder On The Blade? There was no response to the film’s claims. Three months ago I published Trial By Trickery in response to that nil response. It details the Game of Law as it was superbly demonstrated against Watson and his lawyers, details too the implacable resistance of the system to appeal, because, as in Thomas, the greatest insult to Watson’s right to justice and a fair trial  came where he least expected it – in the Court Of Appeal. Here his conviction was confirmed by a judgment which claimed that “an inspection of the transcript” reveals, illogically, that the scenario put forward only at the end by the prosecution was subject to “extensive cross-examination” as recorded in the trial transcript. In fact it had been a defence point on appeal that Watson’s lawyers knew nothing about scenario until the last day of the Crown closing, making cross-examination on the subject impossible.

The truth is that an inspection of the transcript reveals the opposite of the Court’s claim. It shows that the scenario is entirely absent from the trial record, undeniable proof that Watson did not defend himself against the case on which he was convicted, and the only possible reason for this is that he didn’t know about it. There can be no greater cause for appeal than conviction on this basis. The court’s untrue claim was of such central importance that if the truth were substituted Watson would immediately be awarded a new trial. However, irrefutable evidence against the prosecution scenario, always in the possession of the Crown team but not provided by it to the High Court, would ensure there would be no retrial.

In a normal judicial world, a successful Crown murder scenario that was absent from an entire three month trial would surely be cause for painstaking inquiry by a Court Of Appeal. Not here. In a normal judicial world, a successful Crown murder scenario that was absent from an entire three month trial would surely be cause for painstaking inquiry by a Court Of Appeal. Not here. When the Crown Prosecutor later denied that the absent scenario had been deliberately concealed, the Court simply accepted this. Then it implied, incorrectly, that the scenario had not been absent at all.

This story exemplifies a simple theme that dominates Trial By Trickery. Judges, and lawyers and policemen, are simply human beings no less weak and fallible than anyone else - and not the gods the system requires them to be, nor the gods they sometimes might see in the mirror. If they sometimes display excesses that need to be managed then we need a system that sets out to manage them. Dumping the Privy Council was no way to acquire one.

Neither film nor book, nor any claim in either, has ever been answered or even challenged - unfortunately. Consequently, if anyone ever wishes to see our system of law utterly depraved and perverted, an inspection of R v Watson via either of these publications will supply considerable satisfaction.

The unpleasant fact is that since Thomas, despite opportunity after opportunity to re-establish a reputation for integrity and fair play, the justice system has stubbornly aimed lower and lower, and an office of criminal review will do nothing to change that. What we need is a new justice system.

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