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Dr Muriel Newman

The Right to Justice?

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10 June 2007

The Right to Justice?

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.

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