For Great Justice!

by Michael Oliver

The Supreme Court building currently sits in bits on Lambton Quay’s legal and legislative branches. Once finished, the $41.8M nest will stand two storeys tall and link with the halls of the newly restored High Court building situated next door.

Its symbolic presence is obvious. Inside, a nation’s worth of legal history will stand at the forefront of newly minted maturity, power and prestige. The building will reach beyond the capital city’s judicial brushwood and envelop New Zealand’s entire legal forest.

It’s difficult to avoid waxing lyrical about symbols of justice when Justice herself is symbolic. Though the sword and scales the Roman goddess Justitia casts an idealistic proposition of justice prevailing, the system bears flaws and the scars of past mistakes. New Zealand’s judicial history, like any other, comes scattered with a number of incongruities and misfires.

In its 2007 ruling, the Privy Council stated that a “substantial miscarriage of justice” had riddled the Crown’s case against David Bain for the 1994 murder of his five family members. Since then, questions have been levied against the solidity of a number of serious high-profile convictions. Those three little words—miscarriage of justice—have aroused interest in the way New Zealand’s legal system investigates, prosecutes, and later examines serious criminal offences.

Justice reform is a topic never far from the lips and thoughts of legal scholars and Joe Public alike. The legal system, crafted and shaped by the hand of man, is innately prone to inefficiencies and troubles. Nevertheless, it is a field of understanding and practice soaked with fresh ideas and concepts. Itchy fingers with letters to their names sit ready—often eager—to fire ideas across the legal system’s hull.

It all starts with a call to a three-digit emergency line. The nature and apparent seriousness of that call directs how New Zealand’s criminal investigative body sits up and exercises its authority. Although much has been made of how the police conduct and carry out its duties, the smears of the sceptical can be heard discolouring the thin blue line.

Garth McVicor has a dog in the fight, and its bark howls navy blue.

The Spokesperson of the Sensible Sentencing Trust has been a strong advocate of legal reform, and has been outspoken in his want for stronger policing powers. In a bid to eliminate a national mindset soaked in “PC nonsense”, McVicor and his clan have lobbied for the nation’s police to take a far more assertive and forceful approach to their duties.

“I’m a huge fan of the police. I think they perform really, really well. I really think they come under a lot of pressure and they do a fantastic job,” he says.

“We’re pushing for the police to have more tools put in their tool kits to solve crimes.”

McVicor’s call has been answered, as such, by the National-led government. While Minister of Police Judith Collins believes New Zealand’s police has the resources needed to conduct accurate investigations—and do so with regular aplomb—new measures have been introduced to bolster police resources.

“This government is doing all it can to ensure the police are well trained, well resourced and well supported,” she said.

Among a score of tangible new resources including 300 new recruits by 2011, the government is also poised to fill police holders with new legislative powers. One of the more arresting new additions to the thin blue arsenal will be the ability to collect DNA from people they “intend to charge”, and match it against samples from unsolved crimes.

But an armoury of new legislative goodies is tantamount to useless if the soldiers on the frontline can’t use them. Like any profession shrouded in pressure, police officers are prone to make mistakes. This meekly human but powerfully consequential realisation sits atop many a serious investigation.

Programme Director of Victoria University’s Institute of Criminology Associate Professor Michael Rowe notes that most “high-profile” criminal investigations don’t typically beckon attention in their opening acts.

“Investigations are not usually high-profile from the outset, so I don’t think there’s a book of rules brought into play in terms of how to deal with high-profile cases,” Rowe says.

The more serious and problematic of investigations often fall into the lap of seasoned campaigners whose experience and guile is expected to steer a case down the correct path. But a rosy flower this doth not always bloom.

The police have been beleaguered in recent times by a litany of PR problems that many believe have undermined the force’s authority and credibility. The inconsistencies in the way matters forensic bit holes in the crown’s case against David Bain, and much attention has been drawn to the way in which pathological evidence was attained and tabled against Mark Lundy.

The question then arises as to whether or not underlying pressures impinge upon the police’s ability to conduct an accurate investigation into serious crime.

It’s a theory Rowe doesn’t necessarily subscribe to. He alludes to the fact that a number of mistakes made by law authorities domestically and internationally are by no means nefarious or the fault of incompetence. They are informed instead by what’s quantifiably the best information and conditions available to police at the time.

“We know from lots of cases in New Zealand, developments in scientific techniques that reveal new information about criminal activity or not can be established later on using forensic techniques that were not available to the police at the time,” Rowe says.

“Those things can always happen.”

Concerns have also been raised here and overseas that the technique of “case building” against a single suspect may inadvertently shut down more fruitful avenues of inquiry. Public interest in a case has the incredible knack of nudging police to build a case against a particular suspect, some have argued.

Rowe recalls a number of murder investigations in the United Kingdom that were spun on a single suspect, only for the cases against the suspect to be consequently dismissed. He contends that a number of factors may lead police towards a single suspect. Domestic homicides, for example, tend to push attention towards family members, but that’s often a decision made unwittingly.

“There was a case where a TV personality was murdered and someone was convicted and subsequently acquitted. The police fixed upon him as the most likely suspect, and the evidence was about securing a conviction,” he recalls.

“Whoever was responsible for that murder has not been caught, perhaps because the police closed down the lines of inquiry. That’s the other aspect of a miscarriage of justice: it’s not just that innocent people are convicted, it’s that guilty people are not convicted.”

It’s a line of thinking that doesn’t sit well with Scott Optican. The Associate Professor of Law from Auckland University dismisses the thought that case building is par for the course in investigation circles.

“I think it is a bit of a myth that the police simply rush to find someone guilty,” Optican says. “If the evidence tends to focus on one person, they will focus on one person, not because they’re rushing to conclusions, but because that’s where the evidence goes.”

The adequate-if-not-solid job New Zealand’s police do in investigating serious offences is well-supported, but improvements find themselves sitting close by. An often touted unrealised set of independent frames have been moved as possible solutions; in particular, the idea of independent advisors and officials working adjacent to the police.

The police have long called upon the talents and expertise of people outside the field to assist in their investigations. Cases involving serious fraud, for instance, have entertained the advice of financial experts such as bankers and accountants. Social expertise is also important—an investigation into a series of hate crime murders in the United Kingdom relied substantially on the advice of the local gay community in apprehending the guilty figures. Even so, the idea of completely independent crime scene investigators breathes superfluous, as Rowe sees it.

“I don’t think having an independent group is the answer. I think that making sure the investigation is conducted in a transparent matter is what’s important. It is crucial that police investigations are as open minded, objective and independent in spirit rather than anything else,” Rowe says.

So, if independent bodies find no leave to move into the realms of the investigative, perhaps greater accuracy can be found in unbundling the system at a structural level.

The situation as it stands sees the bodies that investigate and prosecute crimes as one and the same. While the National Police Prosecution Service is administratively separate from the criminal investigative and uniform branches of the Police, a wholesale split in a similar fit to what exists in the United States has been suggested as a way of streamlining resources.

“I think that should definitely be the case,” Optican says.

“I come from the United States, where the police make arrests and investigate crime, but the prosecutors make a decision about who to charge. I think that it would be a better system if we had proper crown prosecutions where police simply bring the cases and the prosecutors would decide what charges to bring, if any.”

It’s an idea that does not gain traction with Simon Power. The Minister of Justice is one of many to lend his voice to a chorus sounding confidence in the validity, independence and transparent nature of New Zealand’s investigative and prosecutorial system.

“All prosecutors for the Crown have an overriding duty to the Court to ensure that the Court is not misled and that Court processes are not misused,” Power says.

“They are required to follow the Solicitor-General’s Prosecution Guidelines, which ensure further rigour and independence in prosecution decisions.”

Power does leave the possibility for the introduction of an inquisitorial investigative process in cases that are abrasive in nature, such as those involving sexual violence. Of particular interest to the Minister is the use of independent “State Prosecutors” or “Investigative Magistrates”, who would be responsible for reviewing investigation files, directing further enquiries and ensuring there is a criminal case to answer.

“I am open minded and interested in any lessons we might learn from other countries’ experience with different prosecution arrangements,” he explains.

It’s nothing out of the ordinary for New Zealand’s maturing judicial system. Historically flanked with the airs and graces of the United Kingdom’s adversarial system, it has entertained and incorporated ideas and systems from Commonwealth countries Australia and Canada, and to a lesser extent, the United States.

It is again to ‘Blighty that attention shifts. Following the acquittal of David Bain earlier this year, many commentators began positing the idea of a criminal cases review board similar to the United Kingdom and Scotland’s Criminal Cases Review Commission.

The Criminal Cases Review Commission was established in response to calls for a new mechanism for redressing possible miscarriages of justice in the United Kingdom. The situation came to a fore in March 1991 following the quashing of the convictions against the “Birmingham Six”—a group who were mistakenly charged with a series of pub bombings in 1974.

Following the publishing of a Royal Commission report in July 1993, an independent body was created. The Commission’s shtick was relatively simple: convicted felons would apply to have their convictions and sentences reviewed by a board of entirely independent law officials. Those officials would then pass judgement on whether the Court of Appeal would likely quash a conviction or reduce a sentence before sending their case downstream to those with gavels downstream.

The threshold the Commission is expected to reach is understandably high, although that itself aroused interest in a report by the British Home Affairs Committee in 2005. Many submissions concluded that the Commission was far too finicky in its examination of evidence. One submission even suggested the Commission was “substituting itself for the Court of Appeal in having to make a judgement on the case itself.”

It is a legal quagmire that muddies the waters around a body that is, for all intents and purposes, designed to examine instances of fact. It is the lack of such a body that concerns Scott Optican, who believes New Zealand simply does not have the appellant structure to deal with matters of evidence.

“The Court of Appeal is really set up to deal with legal issues and factual issues that are so obvious on their face that they galvanise court into action. A criminal cases review board is really geared towards a more intensive, factual inquiry,” Optican says.

“It’s obvious that we’ve had some cases of miscarriage in New Zealand that we know about, and there are probably more we don’t know about. The point is that if there’s been even one person, then that’s enough. It’s not a numbers argument.”

Optican’s assessment is not one shared by Simon Power.

“I consider the current system is essentially sound,” Power says.

While the National-led government is in the midst of considering a number of legal reforms, the Minister explains that the introduction of a cases review commission is not one of them. “At present, there are just 10–12 [appeal] applications a year. They are examined by the Ministry of Justice, which is entirely independent of the police and prosecution. In complex and high-profile cases, advice is often sought from senior Queen’s Counsel or retired judges. The Ministry’s work is thorough and maintains high standards.”

Scott Optican’s assessment of whether the Ministry had adequate resources to assess miscarriage of justice claims was succinct.

“You know, probably not,” he sighs.

“The only way to deal with a miscarriage of justice claim is to have a criminal cases review board, with adequate funding and investigative powers to intensively and factually act on claims of miscarriage.”

On the other side of the political coin, Labour’s Associate Spokesperson for Justice, Charles Chauvel, helps himself to a different slice of the argument, suggesting that ministerial resources were not a major recourse for consideration.

“It seems to me that in any event the question should not be resourcing, but whether or not constitutionally it is the most desirable thing for a public service department to advise a minister on whether a conviction should be reviewed. I’d rather see a more arms-length process.”

The mantra of a potential board secured, the question of threshold rears its head. With the UK’s Criminal Cases Review Commission hesitantly shifting between its role as an assessor and its unofficial jaunt as a predictor of rulings, how a similar body would function within New Zealand’s legal system is debatable.

Chauvel’s personal assessment contends that were a case review commission set up in New Zealand, the standards by which it would function would be unprecedented within the current legal system.

“The threshold would have to be higher than the test for a simple appeal, and the review body would only be able to consider an application when all appeals had been exhausted,” Chauvel explains. “You can define the standard for a criminal cases review board any way you want,” Optican points out.

“There is no way to know. I can’t say in advance what I think its brief should be; that’s, again, a question of negotiation.”

It’s a negotiation posited by Sir Thomas Thorp in his 2005 paper on miscarriages of justice. The retired High Court Judge did not support fundamental changes to the criminal justice system, but he strongly advocated the creation of an independent review authority to assess miscarriage of justice. As to the standards by which miscarriages should be measured, Thorp’s evaluation was equally stoic. “Consideration should be given to adopting the standard of ‘serious doubt’ about a conviction…” Thorp wrote.

Nevertheless, Justice Minister Power felt that wording was secondary to the underlying prerogatives of evidence and fact.

“Various terms such as ‘serious doubt’, ‘real risk’ and ‘reasonable possibility’ have been used by the criminal courts to describe the likelihood of a miscarriage of justice,” he says.

“Most applications for the prerogative of mercy hinge on fresh evidence, and the key issue is the significance of that evidence. For the courts to overturn a conviction, the evidence must be credible and sufficiently cogent so that, if given along with the other evidence, there is good reason to think the outcome might have been different.”

So the winds of change ain’t blowing there down parliament way. Despite a substantial miscarriage of justice leading to David Bain’s acquittal, and questions swirling around the solidity of many other high-profile convictions, Scott Optican believes the tide of public opinion still has some way to come in.

“What you need to galvanise something like that would be the sense that it’s needed,” he says.

“To do that you would probably need a reasonably headline-grabbing miscarriage of justice that would galvanise the political process into responding, which is a pity, because miscarriages of justice happen in run-of-the-mill cases too.”

In summarising his 2005 paper, Sir Thomas Thorp noted that New Zealand was tardy to the miscarriage of justice party. “Compared with the United Kingdom and North America, New Zealand has come late to reconsidering the efficiency of its safeguards against the occurrence of miscarriages of justice.”

These efficiencies appear thoughtful, certainly useful, but don’t appear to have footing in a New Zealand context yet. And so like the Supreme Court, unfinished, the road to a stronger judicial bridge sits unfinished. The question of what leads to its completion lies unanswered and daunting.

http://www.salient.org.nz/columns/for-great-justice

This story was syndicated by the Aotearoa Student Press Association via Salient www.salient.org.nz

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