No Possibility Of Error: Why Can’t Our Judicial System Correct Its Own Mistakes?

By   /   October 9, 2013  /   24 Comments

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Why is it, in those rare instances where a convicted person is lucky enough to have a family, or a benefactor, willing to spend many years (and many thousands of dollars) deconstructing the Crown’s case and the Police’s evidence, that so many eminent, learned and independent overseas jurists are so often convinced that New Zealand’s courts have wrongly convicted persons who, while they may not be innocent beyond reasonable doubt, are certainly – by that same crucial test – not guilty?

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ON 17 SEPTEMBER 1956 Marion Watt, Vivienne Watt and Marion’s sister, Margaret Brown, were found shot to death in the Watt family home in the Glasgow suburb of Burnside. At the time of his family’s murder, Marion’s husband, William Watt, had been on a fishing holiday in Ardrishaig, some 90 miles west by road of Scotland’s largest city.

 

The Scottish police did not, however, accept William Watt’s alibi. By their reckoning, he’d had time enough to drive from Ardrishaig, stage a break-in to his own home, murder his wife, his daughter and his sister-in-law, and then drive all the way back to Ardrishaig. They were even able to produce witnesses: the operator of the Renfrew ferry and a passing motorist both picked Watt out of an identity parade.

 

Scotland, in 1956, still imposed capital punishment for the crime of murder. Had Watt been found guilty, he would have hanged.

 

That he was not found guilty is due to the fact that the investigation team was sent information which made it absolutely clear that the man they had arrested and charged with the Burnside killings could not possibly have committed the crime. Amazingly, the source of that information was the man whohad killed Marion, Vivienne and Margaret: Scotland’s most notorious serial killer, Peter Manuel.

 

Displaying the narcissism so often associated with psychopathic killers, Manuel was outraged that “his” murders had been attributed to someone else, and so he carefully fed just enough information to the detectives investigating the crime to make sure that the “credit” for the Burnside killings was not given to the wrong man.

 

Had Manuel not intervened, it is highly likely that William Watt would have gone to the gallows for a crime he did not commit.

 

 

UPON HEARING THE DETAILS of the 1956 Burnside killings case, I felt a shiver run down my spine. Though separated by 44 years and 19,000 kilometres, the murder of Christine and Amber Lundy was distinguished (if that is the right word) by police work almost identical to that carried out in the Scottish case.

 

Once again, the father, though out of town at the time of the killings, was assumed to be the killer. Once again, the case was held to hinge on the accused’s ability to make a 300 kilometre journey, pausing only to murder his wife and child, within the three hour period stipulated by the police “evidence”. And, once again, this Herculean feat was rendered plausible by dubious testimony supplied by dubious witnesses.

 

In the Lundy case, however, there was no narcissistic psychopath desperate to preserve the purity of his “work”. This time the accused father was put on trial and found guilty of his family’s murder. Mark Lundy was sentenced in April 2002. Not (thank God!) to death by hanging, but to life imprisonment with a non-parole period of 17 years. The poor wretch has spent the past 11 years behind bars.

 

 

I SAY “poor wretch” because the patient accumulation of new evidence by Lundy’s family and supporters was enough to persuade the Judicial Committee of the Privy Council that Lundy’s 2002 conviction was unsafe. Their judgement? That his conviction be quashed, and that he be tried again in the High Court of New Zealand.

 

What is wrong with the legal system in this country? Why is it, in those rare instances where a convicted person is lucky enough to have a family, or a benefactor, willing to spend many years (and many thousands of dollars) deconstructing the Crown’s case and the Police’s evidence, that so many eminent, learned and independent overseas jurists are so often convinced that New Zealand’s courts have wrongly convicted persons who, while they may not be innocent beyond reasonable doubt, are certainly – by that same crucial test – not guilty?

 

And why is it that our Court of Appeal has, over so many decades, demonstrated an almost wilful reluctance to allow the facts and the evidence speak with a decisive voice against what is manifestly (at least to the layperson’s eyes) a miscarriage of justice?

 

How was it possible that the evidence produced by Pat Booth and Jim Sprott failed to secure Arthur Allan Thomas’s immediate release? How could intelligent and experienced jurists have permitted the fairy-tale evidence of children to convict Peter Ellis? (Especially following the damning revelations of coached child witnesses, bizarre evidence and moral panic swaying juries in remarkably similar cases in the USA and the UK?) What was it that prevented the Court of Appeal from calling the NZ Police to account for their botched handling of evidence in the David Bain case? How is it that foreigners see immediately what New Zealand judges and juries have, over and over again, simply refused to recognise?

 

 

THE ANSWER, I believe, lies in the character of the New Zealand ruling-class. The narrow social strata from which New Zealand’s lawyers and judges are drawn is distinguished from the rest of the New Zealand population by two particularly obnoxious characteristics. The first is its unwavering belief in its own moral and intellectual superiority; and the second is its acute sense of vulnerability to what it regards as the democratic distempers of the vulgar masses.

 

In a society where the egalitarian impulse has always been strong, the objectionable core beliefs of New Zealand’s ruling class leave it dangerously exposed, not only to populist reprimand, but also, in the worst possible scenario, to social and constitutional eclipse. Over the course of our history these fears have produced a ruling class in which the conviction is strong (to the point of being unchallengeable) that to concede error is to admit weakness. Better that a score of innocent individuals rot in jail, than the Powers-That-Be admit to making a serious mistake.

 

Nowhere is this unwillingness to admit fault more tellingly on display than in the conduct of our present Minister of Justice, Judith Collins. Her treatment of the distinguished Canadian jurist, Justice Ian Binnie, revealed just how energetically she is willing to assert the impossibility of systemic error.

 

Predictably, in the wake of the Privy Council’s quashing of the Lundy conviction there have been calls for New Zealand to follow the UK’s lead and establish a Criminal Cases Review Commission to which highly questionable and/or contentious convictions could be referred for investigation. Since the UK body was established in 1997 it has quashed more than 350 unsafe verdicts.

 

The response of New Zealand’s Minister of Justice? “New Zealand has a robust appeal process and setting up any new independent body would not extinguish public debate.”

 

A “robust appeal process”! Tell that to Arthur Allan Thomas, Peter Ellis, David Bain and Mark Lundy! Tell it to the unknown number of other New Zealanders who languish in prison because they do not have a Pat Booth or a Joe Karam willing to spend years fighting for their freedom.

 

When I consider the adamant refusal of Judith Collins to concede the slightest error, I am seized by how very, very lucky we are in New Zealand to have had, roughly 50 years ago, a Parliament wise and liberal enough to abolish the death penalty. Because I am not at all convinced that our ruling class would rather admit to error than put an innocent man to death.

 

I consider Judith Collins’ trashing of Justice Binnie’s report – and I am not convinced at all.

 

Certainly, if New Zealand had still practiced capital punishment in 2002, then Mark Lundy would now be far beyond the Privy Council’s power to render him either justice or mercy.

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24 Comments

  1. Tom says:

    Read the title of the article with a lisp to get the secret answer!

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  2. Ian says:

    “the conviction is strong (to the point of being unchallengeable) that to concede error is to admit weakness. Better that a score of innocent individuals rot in jail, than the Powers-That-Be admit to making a serious mistake” –

    You make many good points in your blog but it seems a bit too reductionist. The ruling class do not have a monopoly on PRIDE and you can observe similar patterns of behaviour in any organised group, not just the judiciary that transcend class boundaries (including unions).

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  3. Better that a score of innocent individuals rot in jail, than the Powers-That-Be admit to making a serious mistake.

    bullseye

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  4. “robust appeal process”

    Oh, rest assured it is robust.
    It’ll beat any questioning of its findings into impecunious silence.

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  5. Rowan says:

    A brilliant article Chris, you really nail this on the head, another case that has been well in truly stuffed up by the NZ cops and another example of why the likes of a Criminal Cases Review Commission here in NZ as opposed to the likes of Justice Tipping the ex Court of Appeal Judge here who can write flawed written to prescription decisions like the Bain and Lundy ones to achieve the ‘required’ result. He can also invent evidence where it doesn’t exist such as Robin Bain ‘couldn’t’ have committed suicide because of the location of the exit wound in his head.

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    • Ross says:

      Of course, Robin could have committed suicide but based on various pieces of evidence, it is exceedingly unlikely he did so.

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      • Rowan says:

        Yes Ross
        We have a totally unexplained ‘murder scene’ that is totally unexplainable by the prosecution, Statistically with close contact wound, upward trajectory and Robin standing upright all being proven at the retrial, this would statistically put the odds of suicide at around 99%, yet you think we should his death as a totally unexplained murder in the 1%.
        Own goal

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    • Rowan, great to read your support for a CCRC in New Zealand. We’d love your support for our small working group who is advocating for the establishment of a NZ Criminal Cases Review Commission. We have just launched a website & Facebook Page, and would love you to get involved & offer support any way you can. You can find our group on http://www.nzccrcnow.org.nz & http://www.facebook.com/nzccrcnow. Tell your friends too! Cheers, Louise

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  6. fear all says:

    The whole spectre of our judicial system leaves many unanswered questions in so many decisions that it delivers in both criminal and civil proceedings that I have often seen as a lay person that I find the oily expediency of the courts revolves around time and money to get a result that suits those conditions and that appearances can be more important than the facts or the highlighting of reasonable doubt or whether a fair judgement can be reached in light of the evidence presented
    As Chris points out where the death penalty has applied in the past I am thankful that we do or should not live in the emotive decision fervor created by the media or the lack of accountability of evidence in which authorities try to inflict by political power and we do have sufficient powers available albeit requiring money to to implement such if one is to seek redress which is a large if not undemocratic flaw in the system

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  7. unconcerned says:

    How come no one in Palmerston North believes there’s a double murderer on the loose, and nor do Feilding residents believe Scott Guy’s killer roams free?

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  8. Countryboy says:

    I think our judicial system is nothing more than a poisonous tentacle hanging off the octopus that is New Zealands Great Institutionalized Lie . What better place to hide a monstrous swindle than behind a corrupt and prohibitively expensive legal system . Of course [ it ] can never admit a mistake . Any mistake . Our legal system must remain so armour plated and immune to criticism that few , if any will dare to take it on . I bet for every person wrongly imprisoned there are ten rich , deviant crooks roaming free in the latest BMW’s . You know , like the one paula bennett drove to her soup kitchen photo op to boost her popularity in . The one that belongs to us . With the heated , massaging seats .
    It’s been my experience that when someone refuses to admit a mistake it usually means they’re hiding something . Lets face it . Lawyers are trained to hide certain truths .
    Fantastic Post by the way Chris Trotter .

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  9. amirite says:

    And that’s why the majority of the prison population is made of poor, brown, poorly educated, youngish men who do not have the backing of middle-class supporters and the media working hard to get them out of there.
    They are the silent ignored, neglected, forgotten majority who are left to rot in jail for good, or destined to be back behind the bars again and again and again.

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    • Malcolm Kirk says:

      Excellent article Chris.
      I believe New Zealand has reached the point where, like Scotland, we MUST have a Criminal Convictions Review Committee. An independent body, administered by government, but not able to be influenced by it, or the judiciary.

      There have been far too many such cases, and although the minority by far, it is simply not good enough in civilised society. There must be a system in place that allows review of problematic cases by impartial but competent parties. The current system in which politics and a somewhat inept Police force are given more power to decide outcomes of compensation etc, is unbalanced and open to corruption, and is in direct opposition of ‘justice’.

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      • Malcolm, great to read your support for a CCRC in New Zealand. We’d love your support for our small working group who is advocating for the establishment of a NZ Criminal Cases Review Commission. We have just launched a website & Facebook Page, and would love you to get involved & offer support any way you can. You can find our group on http://www.nzccrcnow.org.nz & http://www.facebook.com/nzccrcnow. Tell your friends too! Cheers, Louise

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  10. David says:

    I read somewhere that statistically about 3% of all convictions are in error and lets face, it so many want someone to blame – anyone will do and even better if it’s someone you don’t like.

    But then our police are more concerned about getting a conviction and brownie points than the truth. Time for a reformation..

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  11. Steve says:

    Having waited until the dust settled after the storm brewed up by the Privy Councils ruling, I thought I should add my two cents worth. Firstly I have no opinion as to whether the accused in this case did the crime or not. I have always approached the case as a trial of the evidence. The relentless examination and cross examination of the evidential strands in the prosecutions rope.

    I am not going to be at all surprised if the Crown in due course choose not to proceed with a re trial. I base my opinion on two main elements of reasoning.

    Firstly a re trial if there is to be one will be held in a much different procedural environment than the inaugural trial back in 2000. Most importantly the Criminal Disclosures Act 2009 was not in force. Full disclosure by the investigative arm of the court, namely the police, is an essential element of procedural fairness. Not just the witnesses and other interviews favourable to the Crowns case, but all of the interviews connected to the case, all of the evidence collected, must be disclosed to the defence in order to rigorously test the evidence. This didn’t happen until the new Act codified all of the requirements from both sides of the adversarial divide. It is abundantly clear from the PC’s exhaustive dissemination of the key strands of evidence, that this didn’t happen . In all likelihood it was the passing of this new Act that enabled Lundy’s defence team to submit their case to the Privy Council in the form that they did that resulted in the conviction being nullified.

    Secondly the prosecution are going to have to reconstruct the crime. They are going to have to use a different time frame and build their case around that window whatever it might be. But in order to do that they are going to have to weave a rope of evidential strands strong enough to withstand what is going to be, if there is a re-trial, relentless and unbridled cross examination from the defence. The key planks of evidence upon which the Crown relied to out weigh any skepticism a jury might have about the three hour time window, are essentially dead in the water. Perhaps, one may argue that the tissue evidence could be re visited and contested but, having read the PC decision and summed up the academic and intellectual firepower the defence assembled to refute the Crowns evidence, then one could make a fairly reasonable assumption that the contest will end up in the defence’s favour.

    This case has received such widespread publicity, and it is only just heating up, that there will be hardly a prospective jury member who hasn’t followed at least some aspect of the case. If a re-trial is to be rescheduled at some future date you can bet anyone receiving their future jury service notice in the high court’s home town will be getting very interested.

    The Crown will have to someone how win the credibility of the Jury in the opening address otherwise it is my opinion the result will be a foregone conclusion before the first witness enters the stand. You have a situation where it goes something like this.
    “…well ladies and gentleman. We got it wrong on the first go. We worked hard to investigate this heinous crime and bring the perpetrator to justice. We had thousands of man hours dedicated to the task. Some of this country’s finest investigators. We amassed an enormous mountain of evidence. In the end we arrested our suspect, and weeded out the evidential strands that would make this case a slam dunk for the Crown. But that didn’t work in the long run. It appears the evidence was a bit flaky. We weren’t exactly forthcoming on disclosure but not to worry, we have a new theory and that’s what you’re going to hear today. We don’t have much evidence but it’s the best we can do…..”

    You begin to see the dilemma facing the prosecutors……….

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    • Rowan says:

      Good call Steve
      I can’t wait to hear the crowns argument once Teina Pora’s case gets heard by the PC, maybe Cameron Mander can use Burgess’s line, “well legally that’s impossible (that TP might be innocent) because he has been convicted by two juries” or they can run the fairy story that Rewa took along an a rival gang member as an accomplice to watch him jack of in order to be able to rape Susan Burdett before they jointly murdered her.
      As for Lundy who knows if he really is guilty or what really happened to Christine and Amber that night, there is a case for ML to have been the perpetrator at a later hour but I can’t see him getting convicted again based on the poor quality of the evidence there is certainly in my mind a lot of ‘reasonable doubt’.
      I believe we definitely need a CCRC in NZ and I think that appeals over criminal cases should be taken away from the Court of Appeal seeing as this is the second that they have got wrong.

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  12. Ross says:

    Her treatment of the distinguished Canadian jurist, Justice Ian Binnie, revealed just how energetically she is willing to assert the impossibility of systemic error.

    Chris, Binnie’s report is shockingly bad. I’m surprised someone of your intelligence can’t see that. Maybe you haven’t read it. It’s conclusion is based primarily on the assumption that David is telling the truth, the whole truth and nothing but the truth! That simply defies credibility.

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  13. Chris a great post as always. It is really excellent to read your support for a CCRC in New Zealand. We’d loveyou to join our small working group who are advocating for the establishment of a NZ Criminal Cases Review Commission. We have just launched a website & Facebook Page, and would love you to get involved & offer support any way you can. You can find our group on http://www.nzccrcnow.org.nz & http://www.facebook.com/nzccrcnow. Keep up the great work :-) Cheers, Louise

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  14. Excellent article Chris!
    I agree that the elite simply cannot admit mistakes, however I disagree that miscarriages are rare. I believe the cause is due to arrogance and a complicit press. As you point out there are no proper avenues of appeal. Every single government complaint authority in NZ is corrupt and have cover-up as their prime objective.
    Murder cases such as Lundy’s are obviously important, however Family court cases cause just as much long-term havoc and harm in people’s lives. Our family were unfortunate to experience a Family court gagging proceeding – we won the case eventually, but were so shocked at the lack of adherence to the rule of law and to the law, inside the courtroom, that we fled the country.

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  15. cassie blake says:

    That cartoon pic of Judith Collins ..I LOVE it. What a F**king nasty piece of workshe is.
    When she even spoke out of turn – piped up and called Hamilton Mayor a “gutless coward” (!!!) for overturning Fluoridation of public water supplies..that was the ultimate for me.
    Who the Hell does she think she is?????? Wasn’t even her place !!

    NEVER MIND THAT SHE even had the monstrous EGO & GALL to override Justice Binney

    SHE is the reason NZ needs an INDEPENDENT Judiciary overseer, for a backstop .
    NEW Zealand LACKS impartial True Justice decision makers.
    Sorry but it’s True.
    NZ is just too immature a nation.

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    • Merrial says:

      @ Cassie Blake: on the water fluoridation issue a least, Collins was bang on the nail. And I note today that the majority of Hamiltonians who voted on the fluoride issue agreed with her. The new Council is barking if it thinks it can ignore that result.

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    • Rowan says:

      Agree Cassie
      The Auckland tax lawyer who masquerades as the Justice Minister is a nasty piece of work and an embarrassment to justice in this country. Hopefully her actions will ensure that she is not in the role for to much longer. Her arrogance is incredible, ‘no need for a CCRC’ and ‘its inappropriate to hold an enquiry into Teina Poras conviction while the matter is before the courts’. Judith hold an enquiry and there is no need for the matter to be before the courts!

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  16. Chuck Bird says:

    The only was that the NZ justice system will be improved is for judges to be held accountable by an independent body and judges removed if they ate not doing their jobs properly and fairly. This applies to the Civil Court as well as the Criminal Court.

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