Falsely imprisoned: David Dougherty's story

Last updated 19:52 07/03/2009
Actor Cohen Holloway as David Dougherty

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DAVID DOUGHERTY recently reminded journalist Donna Chisholm of the promise she made the first time he called her from prison.

"He said I'd told him, `I'm going to write a story about you every week until you're out'. And he was kind of comforted by that."

The Sunday Star-Times reporter kept faith with the man wrongfully imprisoned for the abduction and rape of an 11-year-old girl. Twenty articles were published over five months until Dougherty won a retrial: "Mother's tears of joy as son returned," said the headlines.

But in so many ways, that was just the start of the story.

For another five years, Chisholm the journalist, Arie Geursen the scientist and Murray Gibson the lawyer, continued to fight. They supported Dougherty through the harrowing retrial, a protracted bid for compensation and the eventual arrest of Nicholas Reekie the real rapist, the man whose semen was 700,000 million times more likely than any other unrelated man to have caused the stain on the victim's pyjama pants.

Next Sunday, Until Proven Innocent, the made-for-television version of events, will screen on TV1. Viewers will be confronted with the questions campaigners still ask: Why did it all take so long? What went wrong with the David Dougherty case?

Arie Geursen, the bridge-playing molecular biologist who now works for Fonterra, answer succinctly. "The justice system is a monkey."

At an informal lunch, in a suburban Auckland garden, the campaign team relive the story for the Star-Times.

The journalist, the lawyer, the scientist. A holy trinity of truth, immortalised, respectively, by actors Jodie Rimmer, Peter Elliot and Tim Spite. Cohen Holloway plays Dougherty, who is not giving interviews about the movie but, in a message to its production company, said the project had given him a sense of peace and closure.

"I know for some of you it was a job, but I want you all to know, it meant everything to me. I can't tell you what you've done to my world. Tell Donna and Murray and Arie that the things they've done and impact they've had on my life could never be put into words. Please give them all my love and thanks."

They never set out to become crusaders.

Gibson: "It was just another case."

Chisholm: "It was a great story."

Geursen: "The science was straightforward - they clearly had the wrong man."

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Inevitably, though, it became more personal than professional. Chisholm says she would have resigned "if I'd come a cropper... You're always taught not to become part of it [the story]. When you absolutely know you're right, you can't think of anything else."

Gibson says, "we knew we were acting for an innocent party. We couldn't let it go".

They're in Chisholm's backyard eating take-out Thai chicken curry. There's a cat on Gibson's lap. What's its name? Chisholm looks nonplussed. "Umm... Marge," she suddenly recalls, then launches into a story about the time she was buying cat food and realised she hadn't seen the cat for a week and a half. Chalkie is still missing. Presumed dead.

Don't read too much into that. How much does Chisholm care? When Dougherty was in prison, she took daily phone calls from him. When he was released, she arranged counselling, bought groceries, tried to find him somewhere to live.

"I got involved with David more than any journalist should. Not in any unseemly way... but this was something I had to keep going."

In 2002, in one of Chisholm's very few pieces of first-person reportage, she wrote: "During the six years of the campaign I watched Dougherty's mental disintegration. It was as if he was being carried in the surf, picked up time and again by the highs his release from jail and subsequent acquittal; a police report acknowledging his innocence and pounded in the sand by the lows then Justice Minister Doug Graham's obstinate refusal to accept he didn't do it and the debilitating two-year wait for a compensation decision..."

This was the man who sent her son matchbox toys for Christmas, who inquired after her parent's health.

"He's got a terrific sense of family."

"Because he got denied that himself," says Gibson. "Got denied looking after his father."

Dougherty's father died believing his son's innocence. Chisholm, Gibson and Geursen honoured that belief.

THE SCIENTIST arrived late to last week's lunch. He cleared Chisholm's mailbox and teased Gibson about the flash Mercedes parked across the street. He missed the bit where the pair referred to him as "the real hero" of the case.

Way back when, Gibson subpoenaed Geursen to give evidence in a murder trial. They became friends. When the scientist saw a headline in the New Zealand Herald about Dougherty's first appeal and the DNA evidence that ESR claimed pointed both to Dougherty and away from him alarm bells rang.

"Arie was bright enough to see that couldn't happen... that there was a problem with the analysis and interpretation," says Gibson.

"A child could work it out," says Geursen.

The lawyer went to see Dougherty that week. "David was being shipped out of Paremoremo the next day. If he'd been shipped down the line already, I don't know if I would have gone."

Gibson says this so matter-of-factly it takes a minute for the import to sink in. Sometimes, the right people are in the right place at the right time. Ultimately, perhaps, Dougherty can thank his freedom on that simple fact.

"I'll never forget. He said, `Mr Gibson, I'm innocent of this'. Lawyers hear this all the time, but he said it with quite a bit of conviction."

Chisholm's involvement came after a year of phoning Gibson, asking for an interview. "I resisted," says Gibson.

"He was a complete arse," says Chisholm.

"Sorry, sweet," says a completely unrepentant Gibson. He recalls he eventually sent her to talk to Geursen. She won him over by learning the science. Gibson says, "I realised David's case could be swept under the carpet unless the injustice of it was brought to the public's attention".

But initially the trio found little sympathy. Anonymous hate mail circulated, "abusive letters suggesting the Star-Times had got it wrong," wrote Chisholm, in a story headlined The Goliath Fight for David.

They kept working. Chisholm, from a horse-training family background; Gibson, the son of a chemist from working-class Spreydon, Christchurch; Geursen, the Dutch immigrant who came to Auckland at 11 and lived briefly in Kawerau before his father took a job at the Marsden oil refinery.

"I'm still astonished it was such a hard job," says Geursen. "When I sat and watched the movie the other day, the anger welled up in me again. That it took as long as it did it was cruel."

Remarkably, Guersen and Dougherty have never met.

"I had to ensure I maintained my scientific integrity. I felt David would need me again, and that proved to be correct, throughout that battle for compensation, I made absolutely sure that I stayed at arms length and then, when it was all over, I think our paths just simply didn't cross."

NO UPDATE on Dougherty's life has been made available to the Star-Times. Last week, the trio continued to protect him. Gibson: "He's good. He's working. He's always been very employable... it's terribly hard for people when they come out of jail, let alone when they come out for something they didn't do."

Says Chisholm, "the whole thing about David was that he was a very vulnerable person".

"He was put out into the world, we'd made him this kind of household name... David just wants to disappear, and I can understand that."

And what of the journalist, the scientist and the lawyer? Chisholm went on to put her weight behind the bid to release Algerian refugee Ahmed Zaoui. She recently consulted Geursen about George Gwaze, whose acquittal of the murder of his niece Charlene Makaza will possibly be appealed by the Crown. Gibson arrives at lunch and starts talking about a client, who is "the most innocent guy I've seen since Dougherty". He may, or may not, be joking.

They rage about New Zealand's appellate system. It's too slow, says Gibson. "It's wrong," says Geursen. "Those judges simply look to see whether an error in law has been made; they don't review the evidence."

Gibson calls it "a war of attrition".

"They put us through the mill, didn't they? That's the reality. The whole system is grinding you down."

They know that next week's movie will rekindle interest in a case that had all but slipped from people's consciousness. They laugh at the licence the filmmakers took with their characters. Geursen thinks it's a "good drama". They seem curiously detached from the story of their lives. "Do we look like crusaders?" Gibson is genuinely surprised. "I was acting for an innocent man. It's an irresistible force really."

David Dougherty's ordeal
October 1992: An 11-year-old west Auckland girl is abducted from her home and raped. She claims David Dougherty is her attacker. He is arrested and charged but maintains his innocence and gives DNA samples to prove it.
June 1993: Dougherty is found guilty of rape and abduction. DNA evidence is inconclusive. Dougherty begins a seven-year, nine-month jail term.
October 1993: Dougherty's defence seeks more sophisticated testing of the existing samples from the ESR. Scientist Peta Stringer identifies another man's semen in the complainant's underwear but claims there are also traces of DNA which cannot exclude Dougherty.
October 1994: Dougherty's Court of Appeal bid is thrown out. Scientist Arie Geursen questions the finding and begins investigations with lawyer Murray Gibson.
January 1996: Overseas experts back Geursen, saying tests show unequivocal evidence of another man's semen.
April 1996: Gibson petitions the governor-general to intervene and refer the case back to court. The Sunday Star-Times begins its campaign.
June 1996: The petition succeeds. Dougherty is granted another appeal.
August 1996: The appeal court quashes Dougherty's convictions saying the interpretation of the ESR results by the other three scientists is materially different from Stringer's. Dougherty is released.
January 1997: Melbourne scientist Stephen Gutowski does further testing on the samples and finds a clear profile of someone other than Dougherty in the semen on the girl's clothes and no evidence implicating Dougherty.
April 1997: A High Court jury acquits Dougherty on both charges.
November 1997: Justice Minister Doug Graham rejects Dougherty's bid for compensation, saying his innocence has yet to be proven on the balance of probabilities.
January 1998: Lawyers for Dougherty file for a judicial review of the minister's decision not to compensate.
October 1998: The Star-Times reveals the results of a lengthy police re-investigation into the case, which finds Dougherty's involvement in the crimes is "not an option".
November 1998: Graham rejects the police findings as "the musing of some cop", but refers Dougherty's claim for compensation to QC Stuart Grieve.
August 1999: Grieve asks for further DNA tests on the crime scene samples.
June 2000: The new DNA tests, carried out in Tasmania, show a clear profile of another man.
November 2000: Grieve finds Dougherty has proven his innocence on the balance of probabilities and recommends he receive compensation.
July 2001: The government announces a payout of $868,728 to Dougherty and apologises to him.
May 2003: Nicholas Reekie is found guilty of the 1992 rape and abduction of Dougherty's neighbour.

- © Fairfax NZ News

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