Up to 20 wrongly in New Zealand jails says judge

As many as 20 people may be wrongly in New Zealand's jails, says the retired High Court judge who looked into the Peter Ellis Christchurch creche case for the Government. Sir Thomas Thorp is calling for an independent authority to be set up to identify miscarriages of justice, the number of which he says is underestimated. His recommendation follows a two-year study of the nature and incidence of miscarriages of justice, and the way New Zealand and comparable countries deal with such claims.

Sir Thomas, whose interest in the topic arose from reviews he did for the Government, including work on the Ellis case, said that, based on British experience, "up to a score" of New Zealand inmates may be wrongly jailed. His research includes analysis of 53 applications to the Justice Ministry claiming miscarriages of justice from 1995 to 2002. Of these, he classified 26 per cent as "raising issues that clearly required careful investigation". Sixteen per cent were "plainly without merit", while 58 per cent had "sufficient potential to require some further investigation".

In August, Parliament's Justice and Electoral Committee also recommended the establishment of a body to look into miscarriages of justice.

Sir Thomas' report, titled Miscarriages of Justice, has been published by the Legal Research Foundation, a non-profit body associated with Auckland University's law faculty. The university is holding a seminar on the report next month.

Though it was impossible to make reliable estimates of the number of miscarriages of justice, Sir Thomas said he found nothing to indicate the rate in New Zealand would be significantly different than in Britain. His estimate that there may be 20 people wrongly imprisoned was based on the experience there.

There were proportionally fewer complaints of miscarriages in New Zealand, something Sir Thomas believed was explained by New Zealand's system being reactive, whereas all people convicted of crimes in Britain were made aware of the independent review process available there. As well, Maori and Pacific Islanders used the existing processes much less than Pakeha.

Sir Thomas told the Weekend Herald the reason for Maori and Pacific Islanders' low use of the system may be that they felt most strongly that they were not understood by the justice system. "I think that there is in our racial difficulty a sense that people are not understood, which is complex and not open to simple resolution. But, surely, changing from the present self-generating system - which requires complainants to hold their hand up and come up with a written petition or claim - to a system which actually goes out to make sure that all convicted people are aware there is this authority and it will help them formulate a claim if need be, that should make some difference."

In his report Sir Thomas said a "fully independent and appropriately staffed and resourced authority" should have the task of identifying miscarriages and putting them forward for reconsideration by courts. That should include investigative capability. The authority should seek means to reduce the ethnic imbalance of claimants, identify causes of miscarriages in New Zealand, recommend means of minimising their occurrence, and assess compensation for wrongful convictions.

According to published reports of inquiries Sir Thomas has carried out for the Government, he concluded David Bain's conviction for the murder of his parents and siblings was safe but he had misgivings about Peter Ellis' conviction.

National's justice spokesman Richard Worth said he was in favour of an independent commission. Mr Worth said Ellis was a good example of the labyrinth of procedures parties could get caught up in as they tried to prove a miscarriage of justice. Criminal Bar Association president Peter Winter said an independent body was necessary. "There has been a climate of setting up institutions that prosecute, including the Serious Fraud Office, and greater authority for serious crime provisions. It is time there is a counter-balance to redress those who are wrongly convicted," Mr Winter said. "There is nothing worse than languishing on an improper conviction, particularly if you feel as though you can't communicate adequately with the system."

A spokesman for Attorney-General David Parker said last night the minister had not seen the report, but because it was by a retired High Court judge it warranted his attention and he wanted to read it.

(Report here)

Background on the Ellis case:

Former day-care worker, Peter Ellis was released in Feburary 2000 after serving two-thirds of his sentence,after being found guilty of 16 charges of sexual abuse against children in his care.

The case has always been controversial, dividing New Zealand, and particularly Christchurch, into two camps, one believing he is innocent, the other convinced of his guilt. The issue which has festered since his arrest in 1992, surfaced again dramatically on Sunday 16 November 1997, with a 20/20 television programme which painted a picture of a highly questionable approach by the State and of jury irregularities. The previous day, the media reported that the Solicitor General has ordered an inquiry into the Ellis jury.

The Solicitor General’s interest centres on claims that two jury members did not declare their interests before, or after being appointed. The first concern is that the jury foreman is said to have been the marriage celebrant at Crown Prosecutor Brent Stanaway’s wedding 15 years earlier. The second was that another juror had been involved in a lesbian relationship with the mother of one of the alleged victims

TV3’s journalist Melanie Reid claimed on the 20/20 programme, that former detective Colin Eade, a primary crèche sexual abuse allegations investigator, had a history of psychiatric problems and an obsessive personality. (Eade has since disengaged from the police suffering from post traumatic stress disorder. He said on the 20/20 programme he was ‘burnt out’ before the case started and ‘beyond repair’ by the time it was finished).

On 19 November police commissioner Peter Doone told a Parliamentary Select Committee on Expenditure, that he would have the allegations against Colin Eade investigated and would report back to the committee. He said this could take months, based on the experience of the length of time it was taking to investigate Joe Karam’s criticisms of the police handling of the Bain murders investigation. Mr Doone also told the Select Committee he regarded the allegations made against Mr Eade as ‘extremely serious’. He is reported in the Dominion of 20-11-97 as saying “I can assure you that if there are any ethical, procedural or fairness breaches on the part of the police ... I will take every step to ensure that justice will be done”.

Ellis’s supporters are reported as saying a police review would be too narrow and that only a ‘full inquiry’ would suffice. They want an inquiry to also look at the role of the Christchurch City Council, the Ministry of Social Welfare, police investigators other than former detective and the Crown prosecutor.

In an interview with Sean Plunkett on Radio New Zealand’s Morning Report on 20 November, Colin Eade was questioned about allegations he’d had relationships with two of the creche children’s’ mothers and had attempted to have a relationship with a third. Eade told Plunkett he had come home after drinking heavily and received a phone call from an alleged victim’s mother. Eade admitted he had ‘stupidly propositioned her’. He said he had realised his foolishness the next day and tried to pass it off on the basis he had only been joking, but he admitted to Plunkett he had seriously put the proposition. He went on to say the relationships with the other two women had occurred well after the trial.

Phil Goff, Labour’s spokesperson on law and order and Greg O’Connor, President of the New Zealand Police Association (the police union) debated the case on Morning Report the same day. Phil Goff said he had always been uneasy about the convictions. His primary concern appeared to be that the more bizarre claims made by some children had not been put before the court by the Crown prosecutor because of their potential to damage the credibility of the alleged victims.

Greg O’Connor questioned the objectivity of the 20/20 programme and said it was wrong to resurrect the Ellis case on the basis of such a one-sided programme. His position was, that the matter had been properly dealt with in the High Court and Court of Appeal and that none of the information now being raised was new.

(Report here)

And the controversy is still ongoing. See here