Investigating miscarriages of justice

I wish to pay tribute Keith Hunter for his most meticulous pursuit of the truth in the Scott Watson case. The readers of his book

Trial by Trickery

are left with the clear conclusion that there could have been a miscarriage of justice.

The big question we are left with is: how can this be corrected?

First, there is the court appeal system. This can be a very long and costly road, as David Bain and Joe Karam found out.  Often appeals don’t get to substantive issues – they hang on legal technicalities, or whether the judge summed the case up right.

I know those here are not particularly happy with the appeal process in the Scott Watson case.

The final road of an appeal process is an appeal to the Governor-General for a Royal Prerogative of Mercy, which has been taken up in the Scott Watson case.

One inherent problem with this is that it is usual for the Governor-General to hand over the responsibility for the consideration of this to a key member of the executive, the Minister of Justice, who then appoints someone to look at the case.

It would be much better if such a process was independent of the executive altogether.

I mention here the relevance of my Head of State Referenda Bill, which has just been drawn from the parliamentary ballot.

If the referenda envisaged in my bill go ahead and we end up with an independent elected head of state, such an appeal for mercy to the Head of State would truly be independent of the executive.

At present the governor general is appointed by the executive, is required to take advice from it, and can be sacked by it.

[For clarification, I should note here that my bill doesn’t envisage any extra powers, as such, to be granted to an elected Head of State].

To go back to the present judicial process to rectify wrong convictions:

There is a new process, proposed by Justice Thorpe in a 2006 report, for an independent Criminal Appeals Review Office as exists in Canada and the United Kingdom.  Justice Thorpe suggested that there could be as many as 20 people wrongly imprisoned in New Zealand.

I think this is a good idea, because there will always be some unsafe convictions because we live in an imperfect world. Police can do things wrongly; and  the media and internet communications can create prejudice against a defendant. Both of these things were present in the Scott Watson case.

I looked at the website of the British equivalent of an independent Criminal Appeals Review Office, which is called the Criminal Cases Review Commission. It has had 398 cases of possible miscarriage of justice referred to it, and their consideration has resulted in the convictions being quashed in 281 of these cases. This shows the value of such a body.

I am particular worried about prosecutions using a jailhouse informant, as happened in the Scott Watson case. Such informants are so inherently unreliable, with their evidence liable to be contaminated by their desire to please the authorities and get consideration in their own forthcoming trial, or an earlier release from prison.

An Independent Criminal Appeals Review Office would definitely be useful because of all the things that go wrong with police work, the prosecution case, and the prejudicial publicity which can affect any jury – particularly if the jury is at the less competent end of the scale. Juries are not infallible.

I want to finish by touching on a dilemma we face when we defend those who we perceive to have suffered a miscarriage of justice. We can be portrayed as anti-Police.

In fact, we are pro-Police, and our actions help improve Police standards and accountability to the people of New Zealand. I constantly say that I am proud that we have one of the best Police forces in the world.  But that doesn’t mean there is not room for improvement.

It does disturb me that there is sometimes a tendency for Police officers to close ranks and be slow to admit errors, as evidenced by some of the statements emanating from the Police Association.

However, I believe it is in the best interests of Police, and everybody, for members of the public to take a close interest in difficult cases like that which flowed from the tragic deaths of Ben Smart and Olivia hope.

Again, I congratulate Keith Hunter and all the others who have pursued this case, and I will work with Rodney Hide and other MPs to do what we can to get a better resolution of this case and others that appear to be miscarriages of justice.


Meeting organised by Keith Hunter, Mecca Cafe, Auckland