David Bain verdict ignites debate on controversial cases

Tim Hume - Sunday Star Times

THE ARGUMENTS for the prosecution and defence of David Bain were meant to end last Friday when the Christchurch jury handed down its five not-guilty verdicts.

Yet, since his acquittal, the trial evidence has been relitigated: at social gatherings, on the internet, without abatement. Claims for and against Bain's guilt were traded last week with a testiness that reflected not just the case's brutal circumstances, or long history, but the string of disputed acquittals and alleged miscarriages that preceded it, each contributing to a growing public unease about the criminal justice system.

However you viewed the jury's verdict, the Bain case cast the system in an uncomfortable light. By either reckoning, one of the juries in his two trials had made a mistake; a miscarriage had occurred. If this had been rectified by the retrial, any relief was to be tempered by the knowledge that justice had only narrowly been served, and then only due to the intervention of one impassioned and well-heeled supporter, fighting the system on his behalf, for 13 years.

Bain had already served the bulk of his sentence. What transpired in the courtroom last week was an insipid sort of justice, neither swift nor sure. It offered little to cheer about.

IT USED to be that New Zealanders had a near unshakeable faith in their justice system.

"People would claim `wrongful conviction is an American problem we don't have here'," says Dr Matthew Gerrie, manager of Innocence Project, an organisation set up to overturn wrongful convictions using the research of student volunteers.

The first fracturing of that faith came with the wrongful imprisonment, for nine years, of Arthur Allan Thomas in 1971 after police framed him for a double homicide. Later, David Dougherty, who served three years for rape, was acquitted on forensic evidence. Rex Haig served 10 years for a murder conviction later quashed by the Court of Appeal. Aaron Farmer served two years for rape, then had his conviction overturned on the strength of DNA evidence.

More recently, there have been unsettling high-profile cases where the system simply fails to make a conviction. Last year, juries acquitted three men in two weeks, leaving the deaths of Chris and Cru Kahui, Charlene Makaza and Jack Nicholas unsolved.

Cases that appear to have been successfully resolved are being belatedly subjected to renewed scrutiny. Crusaders for convicted double murderers Scott Watson and Mark Lundy agitate loudly to have them freed, arguing they are victims of botched police investigations. Convicted child abuser Peter Ellis, having served his sentence, continues to campaign to clear his name.

So many cases. So much doubt. What's going on with our justice system?

FIRST OFF: mistakes happen, always have done. "The whole business of justice involves human judgement, and therefore it's going to make errors from time to time," says retired High Court judge Sir Thomas Thorp, who has argued for reform of the way appeals are handled.

It is impossible to know whether more bad decisions are being handed down. But most observers agree that the greater doubt shrouding the system is really a consequence of increasing public awareness of its fallibility.

"New Zealand seems to be following a similar trajectory to other western countries, where people are becoming aware there is a possibility of errors in the criminal justice system," says Gerrie. "Before that there seemed to be a lot of denial."

Eyewitness misidentification was the single greatest factor in wrongful convictions, followed by the misuse of forensic evidence.

Says Christchurch lawyer Nigel Hampton, QC: "It's an awakening awareness in the community that these things do happen. There's more willingness to listen and absorb and, if they think there's a case, make noise about it."

Much noise was made last week about the performance of jurors in the Bain case, some of whom embraced Bain after the trial, showed up at his acquittal party, and gave media interviews.

The jury system itself has come under fire from some quarters, with critics questioning the safety of verdicts and the calibre of those empanelled in a system where nearly two-thirds of those called for service wriggle out of it.

The only significant piece of jury research in New Zealand uncovered some alarming findings. Although Law Commission deputy president Warren Young wound up a supporter of the system, eight jurors in seven of the 48 trials he studied spoke such poor English that they could not understand the evidence.

"Juries are essentially amateurs, brought into the system, not told most of the rules until after the game is over," says Wellington lawyer Robert Lithgow, QC. He suggests a "quality-control" mechanism for jury deliberations.

"If you're going to build a public hall with a working bee, you've got to have a building inspector come along the next day and check things."

To this end, some have advocated a French-style mixed jury of three judges and nine laypeople who sit and deliberate together, as a way of monitoring the soundness of decision making.

Jurors can struggle with basic legal concepts. The most commonly asked legal question is the one the Bain jurors asked Justice Graham Panckhurst: "What is reasonable doubt?"

(Last year, University of Canterbury law professor Duncan Webb wrote that "the unspoken and awkward premise of the golden thread of `beyond reasonable doubt' is that it results in guilty people going free"; he advocated introducing a "not proven" verdict to differentiate between innocence and unproven guilt.)

Lithgow says greater transparency is needed around jury decision making. He thinks the criminal justice system "hides behind jury verdicts".

"Because a jury doesn't give reasons, there's a tendency to say the jury must have worked all this out," he says. "The Court of Appeal has, in many case, decided that even though the judges gave juries wrong directions, the jury would have worked that out for themselves. I don't get that at all."

But no system is perfect, Lithgow says. Most importantly, the process must be made "fail-safe". "So if it fails, it falls into safe hands quality-control people will get in there, see what the problem is, and not be embarrassed to say `That's not right'."

THAT, SAY critics, is the great shortcoming of our present judicial arrangements.

"I don't have a problem with the trials themselves," says Hampton. The issue was the "constrained" way the Court of Appeal and Supreme Court review cases, typically not revisiting the verdict or factual background of the trial unless new evidence was presented. Instead, the courts focus on technical matters, such as whether due process has been given, or whether mistakes of law have been made in the admissibility of evidence rulings or summing up.

Lithgow's frustration with this system led him to vow several years ago he would no longer take cases to the Court of Appeal. It was a waste of time.

Author Lynley Hood, who wrote about the Christchurch civic creche case for which Peter Ellis was convicted, said the insistence on new evidence to revisit a verdict amounted to the court covering its back: "If you insist you need new evidence [to revisit a verdict] you don't have to admit you made a mistake."

Lithgow says the court has legislative powers to undertake a wider review of cases, but had "made it absolutely clear they don't want to do that".

This unwillingness could be explained by the court's resources in relation to its workload, in a system where every convicted criminal has the right of appeal. But, he says: "My criticism is that the courts are very intolerant of other parts of government or business saying `I just can't'. If you've been given a statutory task, `can't' isn't available. You've got to pressure for the resources, or resign, or kill yourself in the process."

FOUR YEARS ago, Thorp published a self-funded report examining the way our system handles claims of wrongful conviction. He reached the conclusion that "it wasn't particularly good".

He travelled to the United Kingdom to investigate the workings of the Criminal Cases Review Commission, which had been set up in the mid 1990s to investigate possible miscarriages of justice following the acquittal of the falsely accused pub bombers The Birmingham Six. The commissions one for England, Wales and Northern Ireland, and a separate body for Scotland are independent inquisitorial tribunals whose investigative staff assess all available evidence, including that which may have been suppressed at trial, in order to establish, as best they can, the facts of a case.

Where a miscarriage appears to have occurred, cases are referred back to the appeals court for reconsideration. Since the commissions' inception, claims of wrongful conviction have increased fourfold, with the English body referring 50 convictions a year to the Court of Appeal. Two-thirds are overturned.

Extrapolating from the British experience, Thorp calculated the New Zealand prison population could hold up to 20 wrongfully convicted prisoners at any one time.

"The cases that are a worry are not more than 1% of the total," he says. "Most are picked up in Court of Appeal but it misses one from time to time."

He advocates that New Zealand adopt a similar system an independent body would draw out the wrongfully convicted people who were reluctant to try again after their appeals had been denied.

"People don't go back to the court system if they've been found guilty; they don't go back a third time. But if they can be convinced this is an independent body, they will."

(A commission would also be more successful in dealing with wrongful conviction claims by Maori and Pacific Islanders, who Thorp found were far less likely to claim miscarriages than Pakeha.)

The body would also be effective because it would be staffed by people with investigative skills (forensic scientists rather than lawyers) who had the power to compel evidence; because it would adopt an inquisitorial approach, focused on establishing the facts rather than the adversarial theatre of a trial; and because it would be an independent institution. "If you spend your life working in the justice department, you start to get an establishment view of things," he says.

A New Zealand system could closely resemble Scotland's, which has a similar prison population. "It costs about four million in our dollars a year to run that outfit in Scotland," Thorp says. "We're about to spend more than that on one case."

Hampton, Lithgow, Gerrie and Hood all support Thorp's proposal, which the former high court judge says has "received the approval of just about everybody in the country except the justice department".

IN THE absence of such a body, say critics, we're left with the crusaders. "We haven't got a system that handles claims of miscarriages properly," says Hampton. "What you get instead is the rise of the campaigners, taking up the cudgels themselves because no one else is."

To be successful, those claiming wrongful conviction need either "a dedicated campaigner, or for some tissue sample to turn up later, and set you free, a la Dougherty".

Inmates seeking to have their convictions overturned have long relied on sympathetic strangers with means or a voice in society to take up their cause.

Critics say this ad hoc approach to hearing and resolving claims of wrongful conviction is not only ineffective, but inherently biased it favours white, middle-class criminals. "The greater majority of your 20 jailed wrongly at any one time are from the most disadvantaged sectors of society, and are not going to be attractive or known to the likely campaigners or writers," says Hampton. Campaigners often come in for criticism as glory-seeking meddlers. What drives them in their obsessive quests for justice, often at great personal expense, only they know.

Lithgow says campaigners are an inevitable part of the system as it stands. Some of their causes would be as guilty as sin, and trying it on. But better a guilty man walk free than an innocent rot. "You try to get the number of guilty people who get lucky to a minimum, and the number of innocent people in prison to nil."