EQUAL JUSTICE PROJECT Miscarriages of Justice: Are We Putting the Wrong People In Our Prisons? WHO ARE WE? WHAT DO WE DO? THE EQUAL JUSTICE PROJECT lecturer at the Faculty of Law) and MP Simon O’Connor. The Founded in 2005, the Equal Justice Project (EJP) is the panel expressed a variety of perspectives when addressing brainchild of Auckland Law School students Eesvan Krishnan controversial issues and concerns. and Peter Williams. Ten years later, EJP continues to flourish The team also made a submission on the Buildings under the leadership and participation of students from the (Earthquake-Prone Buildings) Amendment Bill, voicing Faculty of Law who share a passion for social justice. Rt. Hon objections to the proposal to allow circumvention of the E.W. (Ted) Thomas DCNZM QC, the patron of EJP, has often usual requirements for disability access when earthquake- discussed the importance of inculcating a “pro bono ethic” proofing buildings. With regards to the Education among law students. If law students appreciate the Amendment Bill (No 2), Outreach submitted in support of importance of pro bono services at an early stage in their having more diverse members on tertiary education councils. careers, Sir Ted hopes that we will see a shift toward law as a In relation to our community partners, Women’s Refuge profession instead of a business. and Blind Foundation, the team raised close to $500 through The goal of the Equal Justice Project is to empower and bake sales. Moreover, the team has encouraged students to support communities by addressing issues of equality, access donate clothes and books for Women’s Refuge. to justice, redress, representation and knowledge. The five In Semester Two, Outreach continued its work with the different limbs of the EJP – Pro Bono, Community, Education, Auckland Women's Centre; completing further research on Outreach and Communications – work together to achieve Family Law for women going through the Family Court this goal. As budding members of the legal profession, process, and gave a seminar on some of the bias in the volunteers contribute their time, creativity, skills and system for the Women's Centre to present to MPs. knowledge for the benefit of the wider community. At the end of August, Outreach held a political candidates forum on sexual offending law reform, at which speakers THE OUTREACH TEAM from 8 of the 10 major political parties were present. The Outreach team has the mission of increasing Volunteers also wrote a symposium paper in conjunction awareness of legal issues on campus and in communities. Its with the event. Outreach also submitted on the Crimes portfolios include raising knowledge about EJP within the (Match-fixing) Amendment Bill, which proposed to make student body, hosting a range of thought provoking events match-fixing in sport a crime. for students and the community, raising funds for our community partners through creative avenues and INTERESTED? presenting written and oral submissions on parliamentary If you are interested by what you read in this paper today, bills. Today’s Symposium is simply the latest episode in the follow us on Facebook by searching “Equal Justice Project” busy life of the Outreach team. to see the latest content from our volunteers, visit us at That life was no less busy than usual in 2014. A www.equaljusticeproject.co.nz to view our archives, or symposium on drug reform was held in April at the Faculty of contact us by emailing our directors Allanah Colley and Law with the panel comprising of Khylee Quince (senior Rayhan Langdana at [email protected]. Miscarriages of Justice: Are We Putting the Wrong People In Our Prisons?
Paper Prepared for the Equal Justice Project Miscarriages of Justice Symposium University of Auckland — 13 May 2015
Equal Justice Project Outreach Team Co-Managers 2015 Maree Cassaidy & Joy Guo [email protected]
Harriett Adams, Harriet Birch, Kelly Burrowes, Gabrielle Carter, Maree Cassaidy, Joy Guo, Sebastian Hartley, Luke Kibblewhite, Jason Kim, Naushyn Janah, Liam Johannesson, Min Kyu Jung, Jasper Lau, Linda Lim, Callum Lo, Bronwen Norrie, Chalisa Paltridge, Max Smith, Justys Vickers 1. Introduction ThisThis is is aa researchresearch reportreport conductedconducted toto outline the circumstances ofof thethe prosecution,prosecution, conviction,conviction, trials,trials, retrialsretrials and and appealsappeals of of Teina Teina Pora, Pora, DavidDavid BainBain andand MarkMark Lundy. This report aims to be objectiveobjective andand toto presentpresent thethe facts facts as as they they standstand based based on on evidence evidence gathered gathered and and considered. considered.
FollowingFollowing a a statement statement ofof thethe factsfacts ofof eacheach case, each of the below questionsquestions areare thenthen addressedaddressed inin turn;turn; both both in in regardsregards to to each each case case and and with with also also in in regards regards the the lessons lessons to to be be drawn drawn from from reading reading all all three three cases cases together. together. •• AArere there there gaps gaps in in the the prosecution, prosecution, trial, trial, conviction, conviction, and and appeal appeal processes processes in ourin our Criminal Criminal Justice Justice System System that thatmay leadmay to lead a miscarriage to a miscarriage of justice? of justice? •• IfIf there there are are gaps, gaps, how how can can we we address address them them to to deliver deliver more more adequate adequate justice? justice?
2. The Facts of the Cases
TeinaTeina Pora Pora Case Case
ProsecutionProsecution SusanSusan Burdett Burdett was was raped raped and and murdered murdered in in her home in March 1992. 1992. The The eventual eventual prosecution prosecution of of Pora Pora was was substantiallysubstantially based based on on incriminating incriminating statements statements made made by by him him in in a a series series of of interviews. interviews. •• 1992:1992: Pora Pora was was initially initially interviewed interviewed about about Burdett’s Burdett’s murder. murder. He He made made a statement a statement to police to police that thathe had he seenhad 1 aseen bat and a bat a concreteand a concrete pipe, but pipe, was but not was considered not considered a suspect a suspect at this atpoint. this point. 1 •• 1818 March March 1993: 1993: Pora,Pora, 17,17, waswas arrestedarrested on an unrelated charge. DuringDuring questioningquestioning byby policepolice he he enquired enquired whetherwhether they they had had apprehendedapprehended anyoneanyone forfor Burdett’s murder and informed themthem thatthat hehe knewknew who who had had committedcommitted the the crime.crime. HeHe waswas told about a rewardreward andand informedinformed aboutabout indemnityindemnity againstagainst prosecution prosecution beingbeing available available for for anybody anybody who who was was not not considered considered a principala principal suspect. suspect. He He was was given given a form a form to clarifyto clarify the 2 informationthe information on indemnity, on indemnity, which which Pora Poraclaimed claimed to understand. to understand. 2 •• 18-2118-21 March: March: OverOver thethe nextnext fourfour daysdays police conducted a series ofof interviewsinterviews wherewhere PoraPora providedprovided various various accountsaccounts of of the the day day inin question.question. He initially claimed he went to robrob thethe househouse withwith twotwo members members of of the the MongrelMongrel Mob Mob (“Dog” (“Dog” and and “Hound”). “Hound”). He first He firstclaimed claimed they returned they returned to the tocar the with car a baseball with a baseball bat dripping bat withdripping blood. with His blood.story then His changed story then and he changed told police and he he was told the police look-out he wasfor the the mob look-out members. for the He mob later saidmembers. he had enteredHe later Mrssaid Burdett’s he had entered house afterMrs Burdett’shearing screams. house after He hearinglater indicated screams. personal He later involvement indicated sayingpersonal he involvementhelped to hold saying the victim he helped down to while hold onethe ofvictim the othersdown whileraped one her. of At the a later others point raped his her. Aunt At and a Unclelater pointwere presenthis Aunt during and Uncle interviews were presentwhere Pora during again interviews said he wherehad held Pora the again victim said down he hadwhile held the thetwo 3 othersvictim raped down her.while the two others raped her.3 •• CrimeCrime scene scene visit:visit: PoraPora waswas takentaken toto the scene of the crime and askedasked toto identifyidentify Burdett’sBurdett’s house.house. HeHe is is describeddescribed as as beingbeing confusedconfused andand disoriented having great difficulty identifyingidentifying thethe househouse whenwhen directly directly 4 outsideoutside it. it.4 •• AdditionalAdditional evidence:evidence: InformationInformation waswas givengiven byby Martha McLoughlin who claimed claimed that that the the week week after after Mrs Mrs 5 Burdett’sBurdett’s murder, murder, Pora Pora told told her her of of aa bloodstainedbloodstained softballsoftball batbat hehe hadhad discardeddiscarded near a drain in Manakau. Miss5 Miss Burdett Burdett had had allegedly allegedly died died due due to fatalto fatal injuries injuries inflicted inflicted by bya bat. a bat.
Page 4 of 28
TheseThese circumstances circumstances mustmust bebe viewedviewed againstagainst thethe background there was no evidenceevidence ofof thethe twotwo menmen (“Dog”(“Dog” and and “Hound”)“Hound”) having having anything anything to to do do with with the the victim’s victim’s rape rape and and murder murder as as the the men men later later identified identified both both had had alibis. alibis.
CConvictiononviction InIn 19941994 PoraPora stoodstood trialtrial forfor thethe raperape and murder of of Susan Susan Burdett. Burdett.66 Experts, Experts, criminal criminal profilers profilers and and journalists journalists commonlycommonly agree agree that that the the backbone backbone of of the prosecution’s case case was was Pora’s Pora’s confession confession and and self-incriminating self-incriminating statements.statements. Proceedings Proceedings were were brought brought by by Pora’s Pora’s counsel, who contended contended that that the the confessions confessions made made were were inadmissibleinadmissible as as evidence evidence against against him. him.7 7The The grounds grounds for for this this were were breaches breaches of of the the New New Zealand Zealand Bill Bill of ofRights Rights Act Act on theon basisthe basis of a of failure a failure to adequatelyto adequately advise advise Pora Pora of ofhis his right right to to a alawyer lawyer as as per per ss 23(1)(b) and failurefailure toto bringbring the the appellantappellant toto courtcourt asas soonsoon asas possiblepossible per s 23(3); and secondly, secondly, general general unfairness unfairness arising arising from from discussion discussion in in relationrelation to to the the involvement involvement ofof thethe appellant’sappellant’s relatives.8 The Court ofof AppealAppeal ruledruled thethe evidenceevidence as as admissible admissible and and allowedallowed it it to to be be put put before before the the jury. jury.9 Pora9 Pora was wasconvicted convicted in March in March 1994 1994 for the for rape, the murderrape, murder and aggravated and aggravated robbery ofrobbery Susan Burdettof Susan and Burdett sentenced and sentenced to life imprisonment. to life imprisonment.
AppealAppeal Processes Processes and and Decisions Decisions
TrialTrial in in 1994 1994 InIn JuneJune 19941994 thethe CourtCourt ofof AppealAppeal denieddenied an appeal against the the decision decision to to allow allow the the evidence evidence as as admissible. admissible. AnotherAnother appeal appeal was was mademade inin 19991999 basedbased onon failure to bring evidence before thethe juryjury thatthat thethe modemode inin which which the the actsacts were were committed committed shared shared the the distinctive distinctive mode mode of ofMalcolm Malcolm Rewa’s Rewa’s offending offending and and evidence evidence of DNAof DNA matching matching that ofthat Rewa. of Rewa.10 In 101999 In 1999 the Courtthe Court of Appeal of Appeal set asideset aside the theconviction conviction and and ordered ordered a re-trial. a re-trial. Significantly, Significantly, the the Court Court of Appealof Appeal considered considered that that the the Crown Crown case case had had been been based based solely solely on on the the appellant’s confessions. confessions. The The Court Court acknowledgedacknowledged the the appellant’s appellant’s immaturity immaturity at at the the time time of of confession confession and and his his noticeable noticeable deficiency deficiency in in literary literary skills. skills. 11 Recognising11 Recognising false false confessions confessions of of serious serious criminal criminal offending offending as as anan establishedestablished possibility,possibility, it considered considered that that the the convictionsconvictions should should be be quashed. quashed.1212
RetrialRetrial in in 2000 2000 AfterAfter aa retrialretrial inin 2000,2000, PoraPora waswas re-convicted and sentenced to 13 years years imprisonment. imprisonment. In In this this trial trial the the Crown Crown continuedcontinued to to rely rely greatlygreatly onon thethe confessionsconfessions Pora had made, paired withwith newnew evidenceevidence givengiven thatthat highlighted highlighted an an associationassociation between between Rewa Rewa andand Pora,Pora, havinghaving been seen together on variousvarious occasions.occasions.1313 NoNo evidenceevidence was was adduced adduced asas to to how how or or why why the the appellant appellant came came to to make make the the statements statements of ofconfessions confessions as asPora Pora did did not not provide provide evidence evidence on thison matterthis matter in the in retrial, the retrial, which which subsequently subsequently lead tolead his to re-conviction. his re-conviction.14 14
PrivyPrivy Council Council Decision Decision AA recent recent decision decision in in the the Privy Privy Council Council in 2015 quashed Pora’s convictions and and a a retrial retrial was was not not ordered. ordered. New New evidenceevidence was was presentedpresented byby DrDr McGinnMcGinn andand Dr Immelman ascertaining the riskrisk ofof aa miscarriagemiscarriage ofof justice.justice.1515 The The evidenceevidence explains explains why why Pora’s Pora’s confessions confessions may may have havebeen beenfalse and false gave and rise gave to questions rise to questions of whether of his whether convictions his couldconvictions be considered could be safe.considered16 Pora’s safe. frequent16 Pora’s and frequent contradictory and contradictory implausible implausible confessions confessions coupled with coupled the recent with diagnosisthe recent of diagnosisfoetal alcohol of foetalsyndrome alcohol led to syndrome the conclusion led to that the reliance conclusion on his that confessions reliance on for hisconviction confessions amounts for toconviction a miscarriage amounts of justice. to a miscarriage17 His convictions of justice. were17 His accordingly convictions quashed. were accordingly With this quashed. evidence With a jury this could evidence not bea
Page 5 of 28 convincedconvinced that that Pora’s Pora’s confessionsconfessions werewere reliablereliable thereforetherefore highlighting that it wouldwould notnot bebe appropriateappropriate toto order order a a 18 retrial.retrial.18
TimelineTimeline ➡➡MarchMarch 23, 23, 1992: 1992: Susan Susan Burdett Burdett raped raped and and murdered murdered in in her her South South Auckland Auckland home. home. ➡➡MarchMarch 18, 18, 1993: 1993: Pora Pora arrestedarrested forfor interferinginterfering with cars and during anan interviewinterview withwith policepolice he he mentions mentions the the BurdettBurdett case case and and that that he he knew knew who who was was responsible. responsible. Further Further interviews interviews take take place place over over the nextthe nexttwo days,two oftendays, for often hours for athours a time. at a time. ➡➡MarchMarch 23, 23, 1993: 1993: Pora Pora is is charged charged with with murder, murder, rape rape and and aggravated aggravated robbery. robbery. ➡➡FebruaryFebruary 1994: 1994: Pre-trial Pre-trial application application to to have have the the evidence evidence of of the the interviews interviews dismissed. dismissed. Application Application declined. declined. ➡➡JuneJune 3, 3, 1994: 1994: Court Court of of Appeal Appeal upholds upholds the the decision decision to to allow allow the the evidence evidence from from the the police police interviews interviews to beto beput 19 beforeput before a jury. a jury. 19 ➡➡JuneJune 15, 15, 1994:1994: PoraPora foundfound guiltyguilty byby a High Court jury of murder,murder, raperape andand aggravatedaggravated robberyrobbery ofof Susan Susan Burdett.Burdett. ➡➡JulyJuly 1, 1, 1994: 1994: Pora Pora sentencedsentenced toto lifelife imprisonment for murder and concurrentconcurrent sentencessentences ofof 1212 years years for for rape rape andand aggravated aggravated robbery. robbery. ➡➡MayMay 1996: 1996: Malcolm Malcolm Rewa Rewa charged charged with with multiple multiple rapes. rapes. ➡➡DecemberDecember 7, 7, 1998: 1998: RewaRewa convictedconvicted ofof rapingraping 27 women, including Ms Burdett.Burdett. AA juryjury couldcould notnot conclude conclude if if hehe was was also also responsible responsible for for her her murder. murder. ➡➡DecemberDecember 24, 24, 1998: 1998: Solicitor-General Solicitor-General decides decides not not to to retry retry Rewa Rewa for for the the murder murder of of Ms Ms Burdett. Burdett. ➡➡JanuaryJanuary 20, 20, 1999: 1999: Rewa Rewa sentenced sentenced to to 14 14 years years for for the the rape rape of of Ms Ms Burdett. Burdett. ➡➡SeptemberSeptember 28, 28, 1999: 1999: Pora’s Pora’s case case goes goes to to the the Court Court of of Appeal. Appeal. ➡➡OctoberOctober 18, 18, 1999: 1999: Court Court of ofAppeal Appeal quashes quashes Pora’s Pora’s convictions convictions after after DNA DNA from from the serial the serial rapist rapist Malcolm Malcolm Rewa wasRewa linked was tolinked Burdett’s to Burdett’s attack. The attack. Court The of Court Appeal of concludes: Appeal concludes: “We are in“We no are doubt in no that doubt the case that should the case be 20 consideredshould be consideredby another jury.”by another jury.”20 ➡➡DecemberDecember 13, 13, 1999: 1999: Pora Pora freed freed on on bail bail ahead ahead of of his his retrial. retrial. ➡➡MarchMarch 20, 20, 2000: 2000: Pora’s Pora’s second second trial trial begins begins at at the the High High Court Court in in Auckland. Auckland. ➡➡AprilApril 6, 6, 2000: 2000: After After aa threethree weekweek trialtrial and a day of deliberations, a juryjury convictsconvicts PoraPora aa secondsecond timetime for for the the 21 rape,rape, murder murder and and aggravated aggravated robbery robbery of of Ms Ms Burdett. Burdett.21 ➡➡OctoberOctober 12, 12, 2000: 2000: Appeal Appeal dismissed. dismissed. ➡➡MayMay 15, 15, 2006 2006 and and April April 8, 8, 2013: 2013: Pora Pora declined declined parole. parole. ➡➡JanuaryJanuary 28, 28, 2014: 2014: The The Privy Privy Council Council grants grants Pora Pora leave leave to to appeal appeal against against the the 2000 2000 Court Court of of Appeal Appeal decision. decision. ➡➡MarchMarch 31, 31, 2014: 2014: Pora Pora granted granted parole. parole. ➡➡NovemberNovember 4, 4, 2014: 2014: Pora’s Pora’s appeal appeal heard heard by by the the Privy Privy Council Council in in London. London. 22 ➡➡MarchMarch 3, 3, 2015: 2015: Privy Privy Council Council quashes quashes convictions. convictions.22 23 ➡➡MarchMarch 30, 30, 2015: 2015: Privy Privy Council Council recommends recommends Teina Teina Pora Pora is is not not retried. retried.23 ➡➡AprilApril 17,17, 2015:2015: JusticeJustice Minister,Minister, AmyAmy Adams, confirms that Teina Pora Pora applied applied for for compensation compensation for for his his 24 wrongfulwrongful conviction conviction and and imprisonment. imprisonment.24
Page 6 of 28 MarkMark LundyLundy CaseCase
PProsecutionrosecution OnOn Tuesday Tuesday 29 29 August August 2000 2000 Christine and Amber Lundy were murdered in their their home home in in Palmerston Palmerston North. North. ChristineChristine waswas foundfound lyinglying nakednaked andand bludgeoned on the bed whilst Amber lay deaddead inin thethe doorwaydoorway ofof Christine’sChristine’s bedroom.bedroom. TheyThey werewere foundfound at around 9am the next day by Christine’s brother afterafter MarkMark LundyLundy hadhad expressedexpressed hishis concernconcern aboutabout beingbeing unableunable toto contactcontact his family. Lundy was arrested 6 months later andand waswas foundfound guiltyguilty ofof bothboth 25 murdersmurders inin April April 2002.2002.25
TheThe prosecutionprosecution casecase waswas basedbased onon the premise that Lundy had murdered his wife andand childchild aroundaround 7pm7pm onon 29th29th AugustAugust 2000.2000. TheThe motive was said to have been financial gain; that he wouldwould claimclaim lifelife insuranceinsurance costscosts fromfrom hishis 26 wife’swife’s death,death, andand thatthat AmberAmber waswas murdered because she had been witness to the killingkilling ofof herher mother.mother.26 ItIt waswas contendedcontended byby thethe prosecutionprosecution thatthat LundyLundy leftleft the motel he was staying at in Petone sometimesometime afterafter 5:305:30 pm.pm. HeHe drovedrove the the 137km 137km to to Palmerston Palmerston North, murdered his family, cleaned up and drove back back to to Petone, Petone, arriving arriving by by 27 8:28pm.8:28pm.27 The The evidenceevidence isis consideredconsidered below:below: •• BrainBrain tissue:tissue: TheThe mostmost cogent piece of evidence supporting the prosecution’s casecase waswas thethe presencepresence ofof whatwhat waswas allegedlyallegedly ChristineChristine Lundy’sLundy’s brainbrain tissuetissue on Lundy’s shirt that was seized byby policepolice thethe dayday afterafter thethe murders.murders. AlthoughAlthough itit was widely contested as to whether the shirt becamebecame contaminatedcontaminated beforebefore oror duringduring thethe testingtesting processes,processes, oror whetherwhether thethe mattermatter belonged to an animal insteadinstead ofof aa human,human, thisthis evidenceevidence waswas 28 incrediblyincredibly powerfulpowerful andand SteveSteve Winter Winter suggestssuggests thatthat thethe CrownCrown casecase wouldwould havehave crumbledcrumbled withoutwithout it.it.28 •• DrivingDriving time:time: TheThe CrownCrown contended that Lundy could have made thethe journeyjourney fromfrom PetonePetone toto PalmerstonPalmerston NorthNorth andand backback again.again. This claim was based on the absence of of temporary temporary speed speed restrictions restrictions and and road road works,works, Lundy’sLundy’s abilityability toto drive at high speeds, the fact that the car he waswas drivingdriving waswas largelarge andand powerful,powerful, 29 andand thethe distancedistance betweenbetween PetonePetone andand PalmerstonPalmerston North.North.29 •• TimeTime of of Death: Death: Furthermore Furthermore in relation in relation to the to evidence the evidence of driving of driving time, the time, Crown the contended Crown contended that this thatmatched this thematched 7pm timethe 7pm of death time establishedof death established by the Crown’s by the pathologist.Crown’s pathologist. Using gastric Using estimations gastric estimations as to the as time to the of Christinetime of Christine and Amber’s and Amber’slast meal, last the meal, autopsy the autopsyfinding estimatedfinding estimated the deaths the between deaths between 30 and 6030 minutesand 60 30 afterminutes eating. after The eating. 7pm timeframeThe 7pm timeframe also fits with also the fits evidence with the evidenceof Mrs Dance of Mrs discussed Dance discussed below.30 below. •• PetrolPetrol Consumption:Consumption: TheThe fuelfuel consumptionconsumption of Lundy’s car was consistent with thethe Crown’sCrown’s contentioncontention ofof thethe threethree journeysjourneys mademade byby LundyLundy betweenbetween Petone and Palmerston North. TheThe evidenceevidence waswas inconsistentinconsistent withwith Lundy’sLundy’s claimclaim toto havehave travelledtravelled one high speed journey from Petone to PalmerstonPalmerston NorthNorth onon thethe morningmorning 31 afterafter thethe murder.murder.31 •• Amber’sAmber’s DNA DNA on on Lundy’s Lundy’s shirt: shirt: DNA DNA testing found evidence of Amber’s DNA on Lundy’s Lundy’s shirt; shirt; the the most most 32 probableprobable sourcesource beingbeing herher blood.blood.32 •• PaintPaint Flakes: Flakes: Bone Bone fragments fragments from from Mrs Mrs Lundy's Lundy's skull skull were were found found to have to have fragments fragments of paint of paintadhering adhering to them. to Therethem. were There two were colours, two colours, both of bothwhich of matched which matched the paint the with paint which with whichLundy paintedLundy painted his tools. his tools.The Crown The contendedCrown contended one colour one match colour would match be would strange be but strange two colours but two could colours be stretching could be the stretching arm of coincidence the arm of toocoincidence far. The Crowntoo far. further The Crown contended further it contended was a reasonable it was a inference,reasonable and inference, the murder and theweapon murder (which weapon was 33 never(which found) was never was linkedfound) in was this linked way to in Lundy. this way33 to Lundy.
Page 7 of 28 •• TheThe Computer: Computer: AtAt 10.56pm,10.56pm, fourfour hours after the murders werewere supposedlysupposedly committed,committed, thethe computercomputer in in the the LundyLundy household household appeared appeared toto havehave beenbeen turnedturned off. The CrownCrown submittedsubmitted therethere waswas evidenceevidence that that the the computercomputer time time clock clock had had been been manipulated manipulated by by Lundy so as to make make it it look look like like the the murders murders were were committedcommitted at at a later a later time. time. Lundy Lundy claimed claimed that thathe was he back was in back Petone in Petone by 11.56pm, by 11.56pm, backed up backed by evidence up by 34 ofevidence a phone of call a phone to an escort call to service an escort made service at this made time. at this time.34 •• EvidenceEvidence of of Mrs Mrs Dance:Dance: MrsMrs DanceDance residedresided inin the vicinity of the Lundy homehome inin PalmerstonPalmerston North.North. On On the the nightnight in in question question she she left left her her house house at at 7:12pm 7:12pm where where she she saw saw an an unfamiliar unfamiliar car car parked parked on onthe the side side of theof roadthe roadwhich which fit the fit description the description of Lundy’s of Lundy’s car. As car. she As left she her left property her property she saw she a person saw a personrunning running towards hertowards in a blond her in curly a blond wig withcurly a wig horror-struck with a horror-struck expression. expression. The Crown Thecontended Crown contendedthat this was that Mark this Lundy was 35 runningMark Lundy to his running car in a topoor his disguisecar in a poor after disguise committing after the committing murders. the murders.35
ConvictionConviction ThisThis case case was was a a circumstantialcircumstantial one,one, withwith allall evidence requiring assessment by the jury.jury. TheThe CourtCourt was was satisfied satisfied with with thethe jury’s jury’s finding finding that that Lundy Lundy could could have have made made the the 2 hours 2 hours 58 minute58 minute journey journey to commit to commit the murders, the murders, during during which therewhich was there no independent was no independent evidence evidencethat he was that in hePetone. was in The Petone. jury found The that jury Lundy found could that have Lundy committed could have the murderscommitted and the changed murders the and time changed on the computerthe time onbefore the computerrunning out before to his running car at 7:12 out pmto his and car being at 7:12 seen pm by and Mrs Dance.being seen The Crown’s by Mrs Dance.case was The strong Crown’s with case the wasevidence strong of with DNA the and evidence brain tissue of DNA on andLundy’s brain shirt, tissue the on paint Lundy’s fragments shirt, onthe Mrs paint Lundy’s fragments skull, and on other Mrs Lundy’sevidence skull, put forward and other all fittingevidence with putthe pathologists’ forward all fitting estimated with time the pathologists’of death. The juryestimated found Mark time Lundyof death. guilty The and jury hefound was Marksentenced Lundy to guilty 17 years and imprisonment. he was sentenced to 17 years imprisonment.
AppealAppeal Processes Processes and and Decisions Decisions
CourtCourt of of Appeal Appeal TheThe defence defence challenged challenged the the jury’s jury’s decision decision on on the the basis basis that that it wasit was unreasonable unreasonable and and could could not not be besupported supported by bythe evidence.the evidence. However, However, the Courtthe Court ruled ruled that that the theappellant appellant had had to demonstrateto demonstrate that that the the jury jury had had reasonable reasonable doubt doubt in 36 orderin order to set to asideset aside the conviction.the conviction.The36 verdictThe verdict was thatwas itthat was it not was unreasonable not unreasonable or unable or unable to be supportedto be supported having 37 regardhaving to regard the evidence to the evidence as a whole. as a whole. 37
PrivyPrivy Council Council TheThe Privy Privy CouncilCouncil quashedquashed Lundy’sLundy’s convictionconviction inin 2013 and ordered a retrial.retrial. TheThe PrivyPrivy CouncilCouncil hadhad toto considerconsider a a numbernumber of of keykey groundsgrounds onon appealappeal including challenges to evidence givengiven byby thethe Crown’sCrown’s expertexpert witnesses.witnesses. With With respectrespect toto timetime ofof deathdeath therethere waswas nownow a stream of evidence available available from from a a number number of of consultants consultants which, which, if if accepted,accepted, would would invalidate invalidate the the claimedclaimed scientificscientific supportsupport for the time of death whichwhich waswas corecore toto the the Crown’s Crown’s case. case. CrownCrown forensic forensic evidence, evidence, based based on on post-mortem post-mortem examination examination of of the the victims’ victims’ stomach stomach contents, contents, placed placed their their time time of 38 deathof death between between 7.00pm 7.00pm and 7.15pm and 7.15pm on 29 August on 29 2000. August This 2000. was38 important This was because important Lundy because was unquestionably Lundy was inunquestionably Petone, in the in Wellington Petone, in area,the Wellington and 145 kilometresarea, and 145 away kilometres from his away house, from at bothhis house, 5.30pm at both and 5.30pm 8.28pm and that 39 evening.8.28pm that New evening. evidence39 New from evidence the defence from admitted the defence on appeal admitted suggested on appeal stomach suggested contents stomach were contentsin fact unreliable were in 40 asfact a means unreliable of determining as a means time ofof death. determining Clear evidence time of was death. also40 submitted Clear evidence by a neuropathologist, was also submitted Dr Teoh, by that a itneuropathologist, was impossible to Dr identify Teoh, the that material it was as impossible CNS tissue to as identify the cells the had material degenerated as CNS so tissuebadly, and as the that cells therefore had 41 Lundydegenerated should notso badly, have beenand that convicted therefore on that Lundy evidence. should not In addition,have been new convicted evidence on was that admitted evidence. challenging41 In addition, the methodologynew evidence by waswhich admitted the Crown challenging witnesses, theand methodology in particular Dr by Miller, which concluded the Crown the witnesses, stains on the and shirt in particularcontained Page 8 of 28 42 MrsMrs Lundy’s Lundy’s CNS CNS tissue. tissue.42 The The PrivyPrivy CouncilCouncil alsoalso touchedtouched on the issueissue relatingrelating toto thethe computer,computer, holdingholding that that it it was was essentialessential that that thethe CrownCrown provideprovide anan explanationexplanation for the time of closing thethe computer.computer. TheThe CrownCrown waswas unableunable to to provideprovide anan explanation,explanation, meaningmeaning therethere waswas aa possibility that Mrs Lundy was was still still alive alive at at 10:52pm, 10:52pm, which which was was 43 completelycompletely at at odds odds withwith thethe Crown’sCrown’s case.case.43 InIn deciding whether to admitadmit newnew evidence,evidence, thethe CourtCourt foundfound that that the the 44 appellant’sappellant’s evidence evidence was was fresh fresh and and credible. credible.44 There There is isa publica public interest interest in inpreserving preserving the the finality finality of juryof jury verdicts; verdicts; yet, whenyet, when new new evidence evidence presents presents a direct a direct and and plausible plausible challenge challenge to to a a core core element element ofof the prosecution, this this factor factor 45 ceasesceases to to be be of of such such significance. significance.45 The The Privy Privy Council Council found found the the proper proper test test to to apply apply in in deciding deciding whether whether a averdict verdict is 46 unsafeis unsafe is whether is whether that that new new evidence evidence might might reasonably reasonably have have led led to anto anacquittal. acquittal. This46 This was was in accordancein accordance with with the 47 approachthe approach taken taken in R in v R Matenga v Matenga by by the the New New Zealand Zealand Supreme Supreme Court. Court.47 As As thethe newnew evidence evidence raised raised substantial substantial questionsquestions about about thethe validityvalidity ofof thethe CNSCNS tissue,tissue, time of death of the victimsvictims andand thatthat ofof thethe computer,computer, thethe Privy Privy CouncilCouncil heldheld thatthat thethe verdictverdict waswas unsafeunsafe and that the subsequent evidence evidence might might have have reasonably reasonably declined declined to to 48 convictconvict Mark Mark Lundy. Lundy.48
RetrialRetrial 2015 2015 LundyLundy was was found found guiltyguilty atat thethe 20152015 retrial and was re-sentenced to lifelife imprisonment.imprisonment. WhileWhile itit waswas accepted accepted that that thethe matter matter on on Lundy’s Lundy’s shirt shirt was was CNS CNS tissue, tissue, pathologists pathologists and and forensic forensic experts experts had had differing differing views views on onwhether whether it was it animalwas animal or human, or human, what sexwhat it wassex itfrom was or from how or it howcame it to came be on to thebe shirt.on the Yet shirt. New Yet Zealand New ZealandESR forensic ESR biologistforensic Susanbiologist Vintiner Susan believed Vintiner it believedwas very likelyit was the very matter likely came the matter from Mrs came Lundy from and Mrs American Lundy and diagnostic American pathologist diagnostic Dr Rodneypathologist Miller Dr reiterated Rodney Miller this. Thereiterated prosecution this. The changed prosecution their argument changed theirabout argument the time aboutthe crime the wastime committed, the crime statingwas committed, that Lundy stating drove that from Lundy Petone drove to Palmerstonfrom Petone North to Palmerston and killed North his familyand killed in the his earlyfamily hours in the of early August hours 30 beforeof August driving 30 before back to driving his motel back in to Petone.his motel This in replacedPetone. This the replaced previous the argument previous that argument Lundy drovethat Lundy to Palmerston drove to NorthPalmerston and killed North his and family killed at 7pm.his family This new at 7pm. claim This aligns new with claim the aligns computer with evidence the computer and time evidence of death and providing time of fordeath a more providing convincing for a morecase forconvincing the prosecution. case for the The prosecution. defence highlighted The defence that highlighted it was impossible that it was for impossible Lundy to have for madeLundy a toreturn have trip made on one a return tank tripof petrol on one and tank have of implicated petrol and Lundy’s have implicatedbrother-in-law Lundy’s for the brother-in-law murders. The for Court the dismissedmurders. the The defence’s Court dismissed arguments the and defence’s re-convicted arguments Lundy based and re-convictedon the prosecution’s Lundy based contentions. on the prosecution’s contentions. Timeline Timeline➡ August, 2000: The bodies of Christine and Amber Lundy are found in their house in Karamea Crescent, ➡ August,Palmerston 2000: North The bodies by Christine's of Christine brother, and Glen Amber Weggery. Lundy are found in their house in Karamea Crescent, ➡ January,Palmerston 2001: PoliceNorth sayby Christine's they have abrother, "small" Glen list of Weggery. suspects. ➡➡February,January, 2001: MarkPolice Lundy say they is arrested have a "small" for the listmurders. of suspects. He has been in custody ever since. ➡➡February,February, 2002: 2001: His Mark murder Lundy trial is arrested begins. for the murders. He has been in custody ever since. ➡➡March,February, 2002: 2002: Lundy His ismurder found trialguilty begins. by the jury and is imprisoned for a minimum term of 17 years. ➡➡August,March, 2002: LundyAn appeal is found against guilty the by convictions the jury and is heard.is imprisoned The Court for of a minimumAppeal judges term dismiss of 17 years. this, but agree ➡ August,with the 2002: Solicitor-General An appeal against that Lundy's the convictions sentence is is too heard. light. The The Courtminimum of Appeal term is judges raised dismissto 20 years. this, but ➡ December,agree with 2002: the ASolicitor-General coroner's inquest that concludes Lundy's sentence that Christine is too light. and Amber The minimum Lundy died term of is headraised injuries to 20 inflictedyears. by Mark Lundy. ➡➡November,December, 2012: 2002: Lundy's A coroner's new legal inquest team concludes headed by that London-based Christine and New Amber Zealander Lundy David died Hislop of head QC, injuries lodges appealinflicted papers by Mark with Lundy. the Privy Council. ➡➡February,November, 2013: 2012: The Lundy'sPrivy Council new says legal it teamwill hear headed the appeal. by London-based New Zealander David Hislop QC, ➡ June, 2013: A three-day hearing is held in London. The five judges reserve their decision. Page 9 of 28 ➡➡October,October, 2013: 2013: The The Privy Privy Council Council quashes quashes the the convictions, convictions, and and says says a a re-trial re-trial should should be be held held as as soon soon as as possible.possible. Lundy Lundy is is granted granted bail. bail. ➡➡MarchMarch 2015: 2015: Lundy Lundy re-c re-convictedonvicted in in re-trial re-trial and and re-sentenced re-sentenced to to life life imprisonment imprisonment
DavidDavid Bain Bain Case Case
PProsecutionrosecution 49 TheThe fundamental fundamental points points relied relied upon upon by by the the Crown’s Crown’s case case in in the the prosecution prosecution of of David David Bain Bain are are laid laid out out below. below.49 •• TheThe Murder Murder Weapon: Weapon: The The rifle rifle and and ammunition ammunition in in all all 5 5 murders murders were were David's David's and and the the key key to to the the trigger-lock trigger-lock waswas hidden hidden in in an an unusual unusual place. place. •• Bloodstains:Bloodstains: David's David's bloodied bloodied fingerprints fingerprints were were found found on on the the murder murder weapon weapon and and his his bloodstained bloodstained gloves gloves werewere found found in in Stephen's Stephen's room. room. •• BloodstainedBloodstained Clothes: Clothes: Furthermore Furthermore there there was was bloodstained bloodstained clothing, clothing, including including a a green green jersey jersey with with fibres fibres matchingmatching those those found found under under Stephen's Stephen's fingernails, fingernails, washed washed by by David. David. Bain’s Bain’s Gondoliers Gondoliers sweatshirt sweatshirt with with bloodblood on on the the shoulder shoulder had had also also been been sponged. sponged. Blood Blood found found on on the the top top of of the the washing-machine washing-machine powder powder container,container, porcelain porcelain basin basin and and various various light-switches light-switches must must have have come come from from David's David's touch. touch. Droplets Droplets of of bloodblood were were found found on on David's David's socks socks as as well well as as blood blood which which had had caused caused the the luminol luminol observed observed part part sock sock printsprints in in other other parts parts of of the the house. house. •• Computer:Computer: The The computer computer had had been been switched switched on on at at 6.44 6.44 am, am, and and the the jury jury concluded concluded on on all all the the evidence evidence that that thisthis was was just just after after David David had had returned returned home home from from his his paper paper run. run. If If the the evidence evidence that that he he was was at at the the nearby nearby cornercorner at at 6:40 6:40 am am was was accepted, accepted, it it would would have have taken taken 2-3 2-3 minutes minutes to to reach reach the the house. house. •• InjuriesInjuries and and Glasses: Glasses: David David had had fresh fresh injuries injuries to to his his forehead forehead and and knee. knee. There There was was no no explanation explanation for for them them andand the the nature nature of of them them indicated indicated that that it it was was he he who who had had the the fight fight with with Stephen. Stephen. Glasses Glasses (with (with a a missing missing lens)lens) fitting fitting David's David's general general glass glass prescription prescription were were found found on on a a chair chair near near where where David David was was sitting sitting when when thethe police police arrived. arrived. Significantly, Significantly, the the left left side side of of the the frame frame was was damaged damaged and and the the missing missing lens lens was was found found in in Stephen'sStephen's room room near near his his body. body. •• Memory:Memory: David's David's partial partial recovery recovery of of memory memory might might have have enabled enabled him him to to suggest suggest explanations explanations for for some some of of thethe blood blood on on him, him, but but it it did did not not explain explain other other vital vital items items such such as as the the fingerprints, fingerprints, the the clothes clothes or or the the glasses.glasses. His His comments comments such such as as that that his his mother's mother's eyes eyes were were open open when when he he entered entered the the house, house, and and his his remarkremark to to his his aunt aunt that that they they were were “dying, “dying, dying dying everywhere” everywhere” tended tended to to confirm confirm that that he he remembered, remembered, in in part,part, being being there there before before the the deaths. deaths. •• GurglingGurgling N Noises:oises: If If DavidDavid heardheard Laniet Laniet make make gurgling gurgling noises, noises, then then she she must must then then have have been been alive, alive, and and consequentlyconsequently he he must must have have been been by by her her bed bed when when the the last last shot shot was was fired. fired.
ConvictionConviction BasedBased on on this information, thethe juryjury found found Bain Bain guilty guilty on on all allfive five counts counts of murder. of murder. He was He sentencedwas sentenced on each on charge each chargeto concurrent to concurrent terms termsof life of imprisonment life imprisonment with witha minimum a minimum non non parole parole period period of 16of 16years. years. the stains on the shirt contained
Page 10 of 28 AppealAppeal Processes Processes and and Decisions Decisions
FirstFirst A Appealppeal 50 DavidDavid Bain Bain appealedappealed toto thethe CourtCourt ofof Appeal which dismissed the appealappeal onon 1919 DecemberDecember 1995.1995.50 TheThe principle principle questionquestion on on appeal appeal waswas whetherwhether thethe trialtrial judgejudge waswas wrong in refusing to admit the evidenceevidence ofof MrMr Cottle.Cottle. Mr Mr CottleCottle was was an an associate associate of of Bain’s Bain’s sister, sister, Laniet, Laniet, and and the the police police were were led led to tointerview interview him him when when they they found found one one of herof cell-phonesher cell-phones issued issued under under his name. his name. He provided He provided evidence evidence that thatLaniet Laniet had hadtold toldhim himthat thatshe shewas wasa prostitute a prostitute and hadand been had havingbeen having sex with sex her with father, her father,Robin Bain,Robin for Bain, the pastfor the year. past He year. also saidHe also that saidshe hadthat toldshe himhad oftold intentions him of 51 tointentions tell her family to tell “everything” her family “everything” only days before only thedays murders before theoccurred. murders Bain’s occurred. defence51 Bain’s contended defence that contended this evidence that wasthis important evidence wasin that important it demonstrated in that it reasonsdemonstrated for agitation reasons and for irrational agitation behavior and irrational on the behavior part of Robin on the Bain, part and of moreRobin importantly Bain, and more a motive importantly to kill. Thea motive Court to of kill. Appeal The Courtdetermined of Appeal that determined the trial judge that thewas trial correct judge in wasdeciding correct to excludein deciding the toevidence, exclude as the “admission evidence, as of “admission such evidence of such was evidence obviously was subject obviously to qualifications subject to qualifications relating to 52 unreliability,relating to unreliability, lack of probative lack of probative value or remotenessvalue or remoteness in time.” in time.” It was52 heldIt was to held be to hearsay be hearsay and and the appealthe appeal was accordinglywas accordingly dismissed. dismissed.
SecondSecond A Appealppeal InIn 1998, 1998, following following wide wide publicity publicity and and a a joint joint review review of the case case by by the the New New Zealand Zealand Police Police and and the the Police Police ComplaintsComplaints Authority,Authority, BainBain appliedapplied toto thethe Governor-General for exercise of the the Royal Royal Prerogative Prerogative of of Mercy. Mercy. TheThe Governor-GeneralGovernor-General exercised exercised his his powerpower underunder ss 406(b)406(b) ofof the Crimes Act 1961 and,and, byby anan OrderOrder inin CouncilCouncil on on 18 18 53 DecemberDecember 2000, 2000, referred referred six six questions questions for for consideration consideration by by the the Court Court of of Appeal. Appeal. These These six six questions questions related related to: to:53 1.1. WhetherWhether there there was was a reasonable a reasonable possibility possibility that thatthe computer the computer was turned was turned on before on before6.44am 6.44am on the morning on the ofmorning the murders. of the murders. 2.2. WhetherWhether the the glasses glasses lens lens may may have have reasonably reasonably come come to tohave have been been in inStephen Stephen Bain’s Bain’s room room in ain way a way that that was unrelatedwas unrelated to the to murders. the murders. 3.3. WhetherWhether the the fingerprints fingerprints made made in in blood blood on on the the gun gun may may have have reasonably reasonably been been made made before before the the murders. murders. 4.4. WhetherWhether thethe submissionsubmission mademade duringduring thethe Crown’s closing statements thatthat “Only“Only oneone personperson couldcould havehave heardheard Laniet Laniet gurgling. gurgling. That That person person is is the the murderer,” murderer,” was was wrong wrong or or misleading. misleading. 5.5. WhetherWhether the the Court’sCourt’s opinionopinion onon questionsquestions 1,1, 2, 3 and 4 indicated therethere waswas crediblecredible evidenceevidence that,that, ifif put put beforebefore the the jury jury along along withwith otherother evidenceevidence putput forward at the trial, maymay havehave reasonablyreasonably ledled thethe jury jury to to a a differentdifferent verdict. verdict. 6.6. Whether,Whether, with with regardregard toto thethe Court’sCourt’s opinionopinion on question 5, there was aa possibilitypossibility thatthat therethere hadhad beenbeen a a miscarriagemiscarriage ofof justicejustice whatwhat wouldwould warrantwarrant referral to the Court ofof AppealAppeal underunder sectionsection 406(a)406(a) ofof thethe CrimesCrimes Act Act 1961. 1961. OnOn 17 17 December December 2002 2002 thethe CourtCourt ofof Appeal delivered its opinion, concludingconcluding thatthat thethe freshfresh evidence evidence when when viewed viewed collectivelycollectively gave gave rise rise to to sufficient sufficient possibility possibility of of a miscarriagea miscarriage of ofjustice justice which which warranted warranted a full a full reconsideration reconsideration of theof 54 casethe caseby the by Court the Court of Appeal. of Appeal. 54
ThirdThird A Appealppeal OnOn 24 24 February February 2003 2003 the the Governor-General Governor-General referred referred Bain’s Bain’s case case for for full full reconsideration reconsideration by bythe the Court Court of Appeal.of Appeal. The CourtThe Court of Appeal of Appeal dismissed dismissed the the appeal, appeal, concluding concluding that that there there were were three three key key pointspoints ofof evidence which, which, taken taken together, would have led any reasonable jury to have found the case against Bain beyond reasonable doubt.55 Page 11 of 28 TheseThese points points concerned concerned thethe triggertrigger lock,lock, thethe fingerprintsfingerprints on the rifle, and thethe scenescene inin thethe lounge,lounge, withwith the the Court Court holdingholding thatthat therethere waswas ampleample evidenceevidence that supported those three points points that that would would dispel dispel any any hesitation hesitation in in 56 existenceexistence had had those those points points stood stood alone. alone. The The Court Court summarised summarised the the points points as as follows: follows:56 •• OnlyOnly David David knew knew of of the the existence existence and and whereabouts whereabouts of of the the key key used used to to unlock unlock the the trigger trigger lock. lock. •• TheThe bloodstained bloodstained condition condition of of the the rifle rifle was such that the the uncontaminated uncontaminated area area associated associated with with the the fingerprintsfingerprints on on the the forearm forearm ledled toto thethe conclusion that the hand whichwhich mademade thethe fingerprintsfingerprints was was in in position position contemporaneouslycontemporaneously with with the the murders, murders, and and that that the the hand hand was was David’s. David’s. •• TheThe spare spare magazine magazine found found beside beside Robin’s Robin’s dead dead body body was was found found standing standing upright upright on onits narrowits narrow edge. edge. This This was unnaturalwas unnatural in terms in terms of suicide of suicide theory theory and therefore and therefore it must it musthave havebeen beenplaced placed there there by David. by David. TheseThese three three points, points, alongsidealongside furtherfurther incriminatingincriminating evidence, including the presencepresence ofof Stephen’sStephen’s bloodblood on on Bain’s Bain’s blackblack shorts, shorts, luminal luminal sock sock prints,prints, andand thethe injuriesinjuries to Bain’s head, led to CourtCourt ofof AppealAppeal toto findfind that that any any reasonable reasonable juryjury would would find find David David Bain Bain guilty. guilty.
PrivyPrivy Council Council TheThe PrivyPrivy CouncilCouncil quashedquashed Bain’sBain’s convictionsconvictions inin 2007, finding that the nine nine points points put put forward forward by by Bain, Bain, taken taken 57 together,together, led led to to the the conclusion conclusion that that a a substantial substantial miscarriage miscarriage of of justice justice had had occurred. occurred.57 TheThe nine nine points points are are as as follows: follows: •• RobinRobin Bain’s Bain’s MentalMental StateState -- ReliableReliable witnesseswitnesses said Robin had been depresseddepressed andand livingliving alonealone inin squalid squalid conditionsconditions in in a a caravan. caravan. JournalsJournals inin hishis officeoffice at the school wherewhere hehe taughttaught werewere foundfound to to contain contain stories stories aboutabout the the mass mass murder murder of of a family.a family. But But many many of thoseof those facts facts are highlyare highly contentious, contentious, and theand evidence the evidence could wellcould have well influenced have influenced the jury's the assessment jury's assessment of them. of them. •• Motive-Motive- AtAt trialtrial therethere waswas nono plausibleplausible motive established as to why why David David or or Robin Robin had had committed committed the the murders.murders. MrMr Cottle'sCottle's evidenceevidence of an incestuous relationship betweenbetween LanietLaniet andand RobinRobin waswas rejectedrejected as as unreliable,unreliable, but but due due toto freshfresh evidenceevidence thethe question arose whether MrMr Cottle’sCottle’s evidenceevidence wouldwould have have still still beenbeen rejected rejected had had it been it been known known that that three three other other independent independent witnesses witnesses gave gaveevidence evidence to broadly to broadly similar effect.similar effect. •• LuminolLuminol Sock Sock Prints Prints – –There There was was significant significant reason reason to tosuggest suggest that that forensic forensic scientist scientist Walsh’s Walsh’s earlier earlier report report was misunderstoodwas misunderstood and misapplied and misapplied by the by third the Court third ofCourt Appeal. of Appeal. Full luminol Full luminol sock prints sock had prints been had accepted been ataccepted trial as Bain’s, at trial although as Bain’s, Walsh although had contended, Walsh had and contended, later reiterated, and laterthat it reiterated, was near impossible that it was for near the lengthimpossible of Bain’s for thefoot length to make of printsBain’s offoot the to size make found prints throughout of the size the found crime throughout scene without the crimea substantial scene partwithout of that a substantial print missing. part of that print missing. •• TheThe computer computer switch-on switch-on time time - Fresh - Fresh evidence evidence shows shows that thatthe computer the computer could could have been have switched been switched on earlier/ on laterearlier/later than reported than reported and that and the thatswitch-on the switch-on time of 6.44amtime of 6.44amshould notshould have not been have presented been presented as a fact. as This a wasfact. largelyThis was contentious largely contentious due to due the to inaccurate the inaccurate synchronisation synchronisation and precisionand precision of the of the watch watch used used to determineto determine the theswitch-on switch-on time. time. •• TheThe time time of of David’sDavid’s returnreturn home-home- MrsMrs Laney's identification of David waswas problematicproblematic andand herher estimation estimation of of timetime was was at at best best approximate. approximate. A A second second interview was conducted conducted by by the the police police before before trial trial that that demonstrateddemonstrated these these points points of of concern, concern, but but the the Crown Crown failed failed to discloseto disclose the the second second statement statement in what in what they calledthey called “an unfortunate “an unfortunate error”. error”. The The police police had had also also checked checked the the digital digital clock clock relied relied onon in Mrs Mrs Laney’s Laney’s identificationidentification which which was was inconsistent inconsistent with with her her time time estimation. estimation. The The jury jury was was not not informed informed of of this. this.
Page 12 of 28 •• TheThe glasses- glasses- At At trial, trial, optometristoptometrist Sanderson was understood to saysay thatthat thethe glassesglasses werewere David's. David's. David David had had saidsaid they they were were not not his his but but his his mother's. mother's. David David was was then then cross-examined cross-examined in in a away way that that (as (as the the third third Court Court of Appealof Appeal accepted) accepted) impugned impugned his credibility. his credibility. Upon Uponlater being later beingshown showna picture a pictureof David’s of David’smother motherwearing thewearing glasses, the Sandersonglasses, Sanderson realised thatrealised he was that wrong. he was His wrong. change His ofchange opinion of opinionwas not wasconveyed not conveyed to the trial to jury.the trial jury. •• TheThe location location of of thethe left-handleft-hand lenslens ofof thethe glasses- Detective Sgt Weir told thethe juryjury thatthat hehe hadhad foundfound the the left- left- handhand lens lens in in a a visible visible andand exposedexposed positionposition in which, as is now accepted, hehe hadhad notnot seenseen or or found found it. it. The The thirdthird Court Court of of Appeal Appeal accepted accepted that that the the jury jury had had undoubtedly undoubtedly been been misled misled by by the the officer's officer's evidence. evidence. •• David’sDavid’s bloodied bloodied fingerprints fingerprints on the glasses- on the The glasses- trial proceeded The trialon the proceeded assumption that on David's the assumption fingerprints onthat the David's forearm fingerprints of the rifle on were the inforearm human of blood. the rifle It iswere now in known human that blood. although It is now blood known from that other although parts of theblood rifle fromhad been other tested parts before of the trial rifle and had found been to tested be human before blood, trial andthe fingerprint found to be material human had blood, not been the tested.fingerprint When material it was had tested not afterbeen the tested. trial When it gave it was no positivetested after reading the trial for it human gave no DNA. positive Thus reading the blood for analysishuman evidenceDNA. Thus was the consistent blood analysis with evidencethe blood was being consistent mammalian with the in origin, blood being the possible mammalian result in of possumorigin, theor rabbit possible shooting result ofsome possum months or rabbit before. shooting some months before. •• LLaniet’saniet’s gurgling- gurgling- TheThe trialtrial juryjury waswas encouraged to regard David's evidenceevidence ofof Laniet'sLaniet's gurglinggurgling asas aa clear clear indicationindication of of his his guilt.guilt. TheThe BoardBoard feltfelt boundbound to rule thatthat thethe CourtCourt assumedassumed aa decision-makingdecision-making role role well well outsideoutside its its function function asas aa reviewingreviewing body concerned to assess thethe impactimpact whichwhich thethe freshfresh evidence evidence might might reasonablyreasonably have have made made on on the the mind mind of of the the trial trial jury. jury. BasedBased upon upon the the above above points, points, in inthe the opinion opinion of theof the Privy Privy Council, Council, a reasonable a reasonable jury jurycould could have have reached reached a not aguilty not verdictguilty verdictand therefore and therefore a jury must a jury be must provided be provided with the with 9 points the 9 above. points It above. held that It held such that evidence such evidence should be should assessed be 58 byassessed a fully by informed a fully informed jury rather jury than rather an appealthan an court. appeal Itcourt. was 58 further It was held further that held the that appeal the shouldappeal beshould allowed, be 59 convictionsallowed, convictions quashed and quashed a retrial and ordered. a retrial ordered. 59
22009009 Retrial Retrial OnOn 21 21 June June 2007, 2007, a a retrialretrial waswas ordered.ordered. On 5 June 2009, aa ChristchurchChristchurch juryjury pronouncedpronounced DavidDavid Bain Bain not not guilty guilty of of thethe murder murder of of his his family. family. During During the the case, case, Bain’s Bain’s defence defence team team focused focused on theon potentialthe potential guilt guiltof Bain’s of Bain’s father father Robin andRobin whether and whetherRobin could Robin have could been have responsible been responsible for the murders. for the Bain’s murders. defence Bain’s team defence provided team seven provided photographs seven tophotographs show that Bain’s to show father that Robin Bain’s could father have Robin killed couldhimself have with killed the rifle. himself They withfurther the provided rifle. They evidence further concerning provided hisevidence troubled concerning life and dysfunctional his troubled family. life and He dysfunctional was painted asfamily. being He at wasthe edgepainted of reason, as being disorganised, at the edge hopeless, of reason, ill anddisorganised, frail. After hopeless,painting the ill andpicture frail. that After it paintingwas in fact the Robin picture who that had it wascarried in factout Robinthe murders, who had the carried jury, afterout thefive hoursmurders, and the50 minutes jury, after of fivedeliberation, hours and found 50 minutes Bain not of guilty. deliberation, He was acquittedfound Bain of notall five guilty. charges. He was acquitted of all five charges. Timeline Timeline➡ June 20, 1994: The five Bain family members are discovered dead in their Dunedin home. ➡➡JuneJune 24, 20, 1994: 1994: BainThe five is charged Bain family with membersthe murder are of discovered all five victims. dead in their Dunedin home. ➡➡MayJune 29, 24, 1995: 1994: Bain Bain isis foundcharged guilty with of the all murder five murders of all five in victims.the High Court of Dunedin and sentenced to life ➡ Mayimprisonment 29, 1995: Bain with isparole found set guilty at 15 of years all five minimum. murders in the High Court of Dunedin and sentenced to life ➡ Decemberimprisonment 19, 1995: with The parole first appeal set at 15case years is dismissed. minimum. ➡➡AprilDecember 29, 1996: 19, 1995:Leave toThe apply first toappeal Privy caseCouncil is dismissed. is denied. ➡➡JuneApril 15, 29, 1998: 1996: BainLeave applies to apply for to the Privy Royal Council Prerogative is denied. of mercy. ➡ June 15, 1998: Bain applies for the Royal Prerogative of mercy. Page 13 of 28 ➡➡DecemberDecember 18,18, 2000:2000: Governor-GeneralGovernor-General requestsrequests thethe CourtCourt of Appeal to examine some some aspects aspects of of Bain’s Bain’s applicationapplication for for the the prerogative prerogative of of mercy. mercy. ➡➡DecemberDecember 17,17, 2002:2002: TheThe CourtCourt ofof AppealAppeal concludes that there is sufficient sufficient possibility possibility of of a a miscarriage miscarriage of of justice.justice. They They recommend recommend a a full full reconsideration reconsideration of of the the case case by by the the Court Court of of Appeal. Appeal. ➡➡DecemberDecember 15, 15, 2003: 2003: The The appeal appeal is is dismissed dismissed by by the the Court Court of of Appeal Appeal a a second second time. time. ➡➡MayMay 10, 10, 2007: 2007: PrivyPrivy CouncilCouncil finds,finds, basedbased on nine main points, thatthat aa substantialsubstantial miscarriagemiscarriage ofof justice justice has has occurred.occurred. His His convictions convictions are are quashed quashed by by the the Privy Privy Council, Council, and and a a retrial retrial ordered. ordered. ➡➡MayMay 15, 15, 2007: 2007: Bain Bain released released on on bail. bail. ➡➡JuneJune 21, 21, 2007: 2007: Solicitor-General Solicitor-General makes makes an an order order to to retry retry Bain. Bain. ➡➡JuneJune 5, 5, 2009: 2009: Bain Bain acquitted acquitted by by Christchurch Christchurch jury jury on on all all counts counts of of murder. murder. ➡➡MarchMarch 25, 25, 2010: 2010: Bain Bain makes makes a a claim claim for for compensation compensation for for wrongful wrongful imprisonment. imprisonment. ➡➡DecemberDecember 12, 12, 2012: 2012: DrDr Fisher’sFisher’s peerpeer reviewreview deems Binnie’s commissioned reportreport onon Bain’sBain’s innocence innocence on on thethe balance balance of of probabilities probabilities unable unable to to be be relied relied upon upon by by the the Cabinet. Cabinet. ➡➡JanuaryJanuary 30, 30, 2013: 2013: Bain Bain initiates initiates proceedings proceedings for for judicial judicial review review of of Dr Dr Fisher’s Fisher’s report. report. ➡➡JanuaryJanuary 22 22 2015: 2015: Judicial Judicial Review Review proceedings proceedings are are discontinued. discontinued. ➡➡FebruaryFebruary 2015: 2015: Cabinet Cabinet beings beings fresh fresh inquiry inquiry into into compensation compensation claim. claim.
Page 14 of 28 3. Are there gaps in the prosecution, trial, conviction, and appeal processes in our Criminal Justice System that may lead to a miscarriage of justice?
TheThe Concept Concept of of a a ‘Miscarriage ‘Miscarriage of of Justice’ Justice’ TheThe term term ‘miscarriage ‘miscarriage ofof justice’justice’ isis synonymoussynonymous with a wrongful conviction, andand isis defineddefined toto encompassencompass a a broad broad “spectrum“spectrum of of justice-relatedjustice-related issuesissues rangingranging fromfrom gratuitous stop and searches toto prosecution.”prosecution.”6060 InIn somesome cases,cases, a a wrongfulwrongful conviction conviction is is maintained maintained for for several several years whilst the innocent innocent person person remains remains detained detained until until the the opportunityopportunity for for retrial retrial emerges. emerges. Commonly Commonly this outcome emanates from a a trial trial wracked wracked with with ambiguities, ambiguities, difficultiesdifficulties and and blurred blurred factual factual scenarios. scenarios.6161 TheThe essential essential causes causes of a a miscarriage miscarriage of of justice justice are are varied varied and and can can concernconcern issues issues of of fact, fact, investigatory investigatory procedure, procedure, evidence evidence analysed analysed at trial, at trial,representation representation of the of accused the accused and appeal and processes.appeal processes.62 62
TheThe report report now now proceeds proceeds toto analyseanalyse thethe conceptconcept of miscarriages of justice throughthrough thethe lenslens ofof thethe Bain, Bain, Lundy Lundy and and PoraPora trials trials before before identifying identifying common common themes themes across across the the three three cases. cases.
DavidDavid Bain Bain Case Case TheThe BainBain casecase isis anan exemplaryexemplary casecase wherein a miscarriage of justice justice occurred occurred due due to to issues issues with with evidence evidence and and process.process. WhilstWhilst BainBain waswas originallyoriginally convictedconvicted onon all five counts of murder on on 21 21 JuneJune 1995, 1995, this this outcome outcome was was overturnedoverturned on on 5 5 June June 2009. 2009. The The outcome outcome of of Bain’s Bain’s retrial retrial indicates indicates the the original original guilty guilty verdict verdict was was either either mistaken mistaken or basedor based on incompleteon incomplete evidence, evidence, both both of which of which are areindicative indicative of a of miscarriage a miscarriage of justice. of justice.
PolicePolice and and Prosecution Prosecution Process Process DuringDuring investigation, investigation, police police were were said said to to have have failed failed to toadhere adhere to toprotocol. protocol. This This relates relates to failureto failure in preservation in preservation and testingand testing of firearm of firearm residues, residues, preservation preservation of the of carpet, the carpet, preservation preservation of the ofskin the around skin around Robin RobinBain’s gunshotBain’s gunshot wound towound determine to determine the distance the distanceof the fatal of theshot, fatal and shot, failure and to failure take accurate to take accurate time-stamped time-stamped images imagesof the crime of the scene. crime63 Duringscene. 63the During initial theinvestigation, initial investigation, the police denied the police the deniedpathologist the entry pathologist to the home entry tofor thethree home hours, for compromising three hours, bodycompromising temperature body and temperature wound examination and wound as a examinationresult. Further, as duringa result. the Further, investigation during ofthe the investigation computer, the of timethe wascomputer, estimated the using time anwas inaccurate estimated and using unsynchronised an inaccurate watch. and unsynchronised64 This led to ambiguities watch.64 Thisin determining led to ambiguities the switch- in ondetermining time, and the raised switch-on concerns time, about and other raised evidence concerns such about as other eyewitness evidence identifications such as eyewitness by Mrs identifications Laney.65 It is alsoby notedMrs Laney. that certain65 It is alsoevidence noted was that prematurely certain evidence destroyed was prematurelythrough burning destroyed down throughthe house. burning This led down to considerable the house. complicationsThis led to considerable during the complications retrial process, during as itthe was retrial believed process, that as evidenceit was believed significant that evidence to the question significant of to Bain’s the innocencequestion ofwas Bain’s destroyed innocence in the was fire. destroyed The prosecution in the fire. withheld The prosecution other key withheld evidence. other This keyraises evidence. contentious This raisesissues aboutcontentious the role issues that aboutpolice theplay role in athat prosecution police play process in a prosecution fraught with process inadequacies, fraught with the inadequacies,factors influencing the factors police decisions,influencing and police the extent decisions, to which and thethis extentcontributes to which to an this unjust contributes outcome to atan trial. unjust outcome at trial.
Page 15 of 28 TrialTrial and and Conviction Conviction Process Process TheThe original original trial trial ignored ignored the the question question of of Robin Bain’s mental health, health, which which was was crucial crucial in in determining determining an an alternativealternative motive. motive. ThereThere waswas speculationspeculation as to evidential issues surroundingsurrounding thethe murdermurder weapon,weapon, blood-stained blood-stained clothingclothing found found at at the the premises,premises, andand computercomputer accessaccess by Bain. Several of thesethese concernsconcerns maymay havehave beenbeen linked linked to to a a failurefailure on on behalfbehalf ofof thethe prosecutionprosecution toto informinform the jury of certaincertain freshfresh evidence,evidence, suchsuch asas secondsecond statementsstatements put put forwardforward by by both both the the optometristoptometrist whowho identifiedidentified thethe glasses,glasses, and the womanwoman whowho claimedclaimed toto havehave seenseen Bain Bain on on the the 66 morningmorning in in question. question.66
AppealAppeal Process Process TheThe need need for for Joe Joe Karam’sKaram’s involvementinvolvement toto getget thethe case to the Privy CouncilCouncil pointspoints toto barriersbarriers ofof accessaccess to to the the appeal appeal processes.processes. Access Access to to lawyers lawyers and and legal legal aid is a disproportionate burden burden on on the the appellant, appellant, particularly particularly when when 67 comparedcompared to to the the resources resources available available to to the the Crown. Crown. 67The The Privy Privy Council Council found found on on21 21June June 2007 2007 that that a reasonable a reasonable jury couldjury couldhave concludedhave concluded Bain was Bain not was guilty not onguilty the burdenon the burdenof proof ofand proof ordered and aordered retrial. Thea retrial. Privy CouncilThe Privy noted Council that thenoted case that was the best case re-heard was best by a re-heard new and by fully a new informed and fully jury, informed rather than jury, the rather appeal than courts the whoappeal had courts determined who had his 68 fatedetermined thus far. hisHon. fate Justice thus far. Grant68 Hon. Hammond Justice Grant states Hammond that appeal states courts that are appeal “solely courts creatures are “solely of statute” creatures and that of 69 wherestatute” there and is that a narrow where basisthere foris a an narrow appeal, basis possibilities for an appeal, of a miscarriagepossibilities ofof justicea miscarriage increase. of justice A Christchurch increase. 69jury A acquittedChristchurch Bain jury of all acquitted five counts Bain of of murder all five on counts 5 June of murder2009. on 5 June 2009.
AddressingAddressing the the Gaps Gaps AfterAfter thethe BainBain case,case, newnew testingtesting procedures were proposed by University University of of Auckland Auckland Associate Associate Professor Professor Scott Scott OpticanOptican to to address address the the issues issues of “mistaken of “mistaken eyewitness eyewitness identifications, identifications, wrongful wrongful confessions, confessions, and perjured and perjuredjailhouse 70 informantjailhouse informant testimony”. testimony”. Optican70 argues Optican that argues there that is actuallythere is actually very little very in little the wayin the of way safeguards of safeguards against against these distortionsthese distortions in the in current the current system. system. In particular, In particular, he he proposes proposes videotaping videotaping of of all all police-initiated, police-initiated, custodial custodial interrogations,interrogations, greater greater legal legal controls controls on on the the use use of ofjailhouse jailhouse informants, informants, improved improved procedures procedures for forthe thehandling handling and 71 assessmentand assessment of eyewitness of eyewitness testimony, testimony, and reforms and reforms to the discoveryto the discovery process. process. The Bain 71 The case Bain illustrates case illustrates the need the for greaterneed for accountability greater accountability for the police for the in police the processin the process of gathering of gathering and storing and storing evidence. evidence. This encompassesThis encompasses both physicalboth physical evidence evidence and witness and witness testimonies. testimonies. It is crucial It is crucialthat police that policeconduct conduct thorough thorough investigations investigations which ensurewhich fullensure accuracy full accuracyof evidence of evidencethat is produced that is producedat trial. In thisat trial. instance In this it isinstance also obvious it is also that obvious they must that also they endeavour must also to protectendeavour that evidenceto protect should that evidence it be needed should twenty it be needed years later. twenty years later.
MarkMark Lundy Lundy Case Case TheThe Privy Privy Council Council considered considered that that Mark Mark Lundy Lundy had had not notbeen been given given a fair a trial, fair largely trial, largely with concerns with concerns as to the as Crown’s to the 72 expertCrown’s witnesses expert witnessesand their conflictingand their conflicting or under-developed or under-developed evidence. evidence. Mark Lundy 72 Mark was re-convictedLundy was re-convicted in 2015 for thein murders2015 for of the both murders his wife of andboth daughter, his wife andbut thisdaughter, case still but raises this case concerns still raises as to concernsthe shaky as grounds to the shakyupon groundswhich he wasupon originally which he convicted. was originally convicted.
PolicePolice and and Prosecution Prosecution Process Process TheThe prosecution prosecution was was oftenoften expectedexpected toto fillfill gaps where there was aa lacklack ofof evidence.evidence. TheThe prosecutionprosecution formulated formulated a a questionablequestionable timelinetimeline ofof eventsevents forfor thethe murders. The narrow timeframe in in which which they they suggested suggested Lundy Lundy had had to to commitcommit the the murders murders createdcreated controversycontroversy over whether it waswas actuallyactually possiblepossible to to drive drive from from Palmerston Palmerston North North and and
Page 16 of 28 73 PetonePetone in in that that time.time.73 ThisThis timeframetimeframe waswas changedchanged on appeal, and thethe casecase againstagainst LundyLundy waswas strengthenedstrengthened as as a a result,result, but but there there were were suggestions suggestions that that perhaps perhaps pressure pressure to present a case case at at the the original original trial trial led led to to making making assumptionsassumptions or or guesses guesses where where evidence evidence was was lacking. lacking.
TrialTrial and and Conviction Conviction Process Process TheThe Lundy Lundy casecase raisedraised doubtsdoubts aroundaround thethe suitability of a juryjury inin handlinghandling complicatedcomplicated informationinformation thatthat requires requires expertexpert knowledge. knowledge. The The evidentialevidential valuevalue ofof expertexpert testimonies may be in dangerdanger ofof beingbeing givengiven tootoo much much weight, weight, whichwhich can can be be seenseen inin thethe subsequent acknowledgement of new-foundnew-found evidenceevidence whichwhich renderedrendered original original evidence evidence 74 unreliable.unreliable.74 TheThe prosecution’sprosecution’s originaloriginal timelinetimeline waswas based on expert expert evidence evidence regarding regarding the the human human digestive digestive systemsystem and and the the contents contents of of the the victims’ victims’ stomachs. stomachs. However, However, this this assumption assumption was was challenged challenged by other by other experts, experts, such 75 assuch Dr Martinas Dr MartinSage, who Sage, said who that said stomach that stomach digestion digestion is an inaccurate is an inaccurate way of determining way of determining time of death. time 75of Similarly,death. multipleSimilarly, experts multiple offered experts conflicting offered conflictingopinions on opinions the brain on tissuethe brain found tissue on foundLundy’s on polo Lundy’s shirt. polo Experts shirt. could Experts not agreecould whethernot agree it whetherwas due itto was contamination due to contamination in the factory in the that factory handled that the handled DNA, orthe whether DNA, or thewhether shirt itselfthe shirt was 76 contaminateditself was contaminated and the brain and tissue the brain was tissuethat of was an animal that of oran other animal being. or other76 being.
AppealAppeal Process Process MarkMark Lundy Lundy wanted wanted to to appeal appeal to to the the Board Board after after the the Court Court of of Appeal Appeal decision decision but but was was initially initially unable unable to to do do so so due due to lackto lack of legalof legal aid. aid. He He looked looked to topersuade persuade counsel counsel to to act act pro pro bono bono and and soughtsought helphelp for fundingfunding anan appeal.appeal. David David HislopHislop QC QC agreed agreed to to act act as as counsel counsel for for Mark Mark Lundy Lundy on on a proa pro bono bono basis basis at atthe the appeal. appeal. Once Once the the trial trial was was finished, finished, the mediathe media reported reported that thethat cost the of cost the of second the second trial had trial exceeded had exceeded $2 million $2 million dollars, dollars, with the with legal the aid legal retrial aid billed retrial at 77 $1.3billed million at $1.3 and million set to and rise set further. to rise77 further.Justice Winkelmann Justice Winkelmann discusses discusses the idea thethat idea justice that services justice serviceshave become have 78 morebecome and more a and product more to abe product “marketised.” to be 78 “marketised.” She speaks aboutShe access speaks to justice about as access the critical to justice underpinning as the critical of the ruleunderpinning of law in society.of the rule Although of law herin society. speech Although was concerned her speech with was the concerned widening with unmet the needs widening for civilunmet cases, needs her commentaryfor civil cases, provides her commentary insight into provides a steady insight decline into in a fundingsteady decline by the inExecutive funding and by the the Executive increase inand unrepresented the increase litigants.in unrepresented This difficulty litigants. in accessing This difficulty justice inis displayedaccessing injustice the Lundy is displayed case, wherein in the Lundyit took case,10 years wherein to bring it took forward 10 anyears appeal. to bring Long forward delays anin bringingappeal. Long appeals delays forward in bringing is concerning appeals due forward to the is impactconcerning this coulddue to have the impacton scientific this evidencecould have and on witness scientific statements. evidence Thisand delaywitness presents statements. an issue This in delay the justicepresents system, an issue where in the the justice difficulty system, in affording where legalthe difficulty services inis provingaffording detrimental legal services to accessingis proving justice. detrimental It highlights to accessing the potential justice. Itfor highlights civil litigation the potential becoming for a luxurycivil litigation service for becoming those who a can luxury afford service the fees, for rather those than who a necessity can afford to thethe functioning fees, rather of than justice a necessityin society. to the functioning of justice in society. Addressing the Gaps TheAddressing Lundy case the demonstrates Gaps that there may be a need to review access to legal aid and whether it may be creating anThe unnecessary Lundy case disadvantage demonstrates to that defence there teams. may be The a needprocess to of review receiving access legal to legalaid is aid long and and whether difficult, it which may be in Lundy’screating case an unnecessarycreated difficulties disadvantage in seeking to defencecounsel. teams. In addition, The process legal aidof receivingmay provide legal hindrance aid is long in theand processesdifficult, leadingwhich in up Lundy’s to the casecase createdas legal difficulties aid must bein seekingsought atcounsel. each step In addition, of the way legal in orderaid may to keepprovide up hindrancewith the Crown’s in the witnesses.processes leading up to the case as legal aid must be sought at each step of the way in order to keep up with the Crown’s witnesses. This case had a heavy focus on elements such as CNS tissue, petrol consumption, and food digestion which posed severalThis case scientific had a heavyquestions. focus It on may elements be beg suchthe question as CNS tissue, of whether petrol fair-minded consumption, layman and foodjuries digestion are capable which of making posed informedseveral scientific decisions questions. where the Itcontent may be put beg forward the question is heavily of scientific. whether New fair-minded evidence laymanarose following juries are the capable conviction of making informed decisions where the content put forward is heavily scientific. New evidence arose following the
Page 17 of 28 thatthat challenged challenged the the Crown’s Crown’s expert expert witnesses witnesses and and suggested suggested that that the the information information used used in in the the trial trial was was contestable, contestable, andand therefore therefore should should not not have have been been relied relied upon upon so so heavily. heavily.
TeinaTeina Pora Pora Case Case TheThe recent recent decision decision by by the the Privy Privy Council Council to to quash quash Pora’s Pora’s convictions convictions for for the the rape rape and and murder murder of of Susan Susan Burdett Burdett has has raisedraised questions questions which which particularly particularly concern concern confessional confessional evidence evidence and and police police conduct. conduct.
PolicePolice and and Prosecution Prosecution Process Process JusticeJustice GrantGrant Hammond Hammond suggests suggests that that one one of of the the factors factors that that may may lead lead to to a a miscarriage miscarriage of of justice justice is is unreliable unreliable 79 confessions,confessions, gained gained by by police police pressure pressure or or as as a a result result of of an an impaired impaired metal metal state. state.79 There There were were multiple multiple indications indications thatthat Pora’s Pora’s confession confession was was false, false, such such as as his his inability inability to to identify identify the the scene scene of of the the crime, crime, or or accurately accurately describe describe the the victim’svictim’s physical physical appearance. appearance. However, However, the the police police did did not not conduct conduct further further investigations investigations into into the the truthfulness truthfulness of of the the confession.confession.
Additionally,Additionally, police police interviewed interviewed Pora Pora for for four four days days without without a a lawyer lawyer present. present. The The Court Court in in 1994 1994 found found that that Pora Pora had had beenbeen adequately adequately advised advised of of his his right right to to consult consult a a lawyer lawyer in in compliance compliance with with s s 23(1)(b) 23(1)(b) of of the the New New Zealand Zealand Bill Bill of of 80 RightsRights Act, Act, and and that that he he chose chose not not to. to.80 Nonetheless, Nonetheless, if if a a lawyer lawyer had had been been present present from from the the outset, outset, the the confession confession maymay not not have have been been made made to to police police and and the the subsequent subsequent charges charges and and convictions convictions may may not not have have ensued. ensued. Additionally, Additionally, researchresearch suggests suggests that that individuals individuals with with low low levels levels of of intelligence intelligence or or those those who who lack lack an an expected expected level level of of maturity maturity cannotcannot fully fully comprehend comprehend the the significance significance of of their their legal legal rights, rights, which which raises raises issues issues as as to to whether whether these these offenders offenders 81 shouldshould be be able able to to validly validly waive waive these these rights. rights.81
TrialTrial and and Conviction Conviction Process Process TheThe prosecution prosecution was was allowed allowed to to rely rely heavily heavily on on the the confessional confessional evidence evidence in in police police interviews interviews to to make make their their case case againstagainst Pora. Pora. In In New New Zealand, Zealand, confessional confessional evidence evidence is is a a powerful powerful instrument instrument utilised utilised by by the the prosecution. prosecution. Elias Elias CJ CJ observedobserved in in Television Television New New Zealand Zealand Ltd Ltd v v Rogers Rogers, ,“apparently “apparently reliable reliable confessional confessional evidence evidence has has led led to to significant significant 82 miscarriagesmiscarriages of of justice”. justice”.82 In In New New Zealand, Zealand, a a jury jury is is entitled entitled to to convict convict on on confession confession alone, alone, even even if if the the defendant defendant 83 retractsretracts the the confession confession or or asserts asserts it it is is false. false.83 “Any “Any court court must must therefore therefore be be astute astute to to examine examine the the reliability reliability of of a a 84 seeminglyseemingly straightforward straightforward confession confession of of guilt guilt where where that that comes comes under under later later challenge.” challenge.”84 The The inability inability to to investigate investigate andand detect detect false false confessions confessions presents presents a a significant significant barrier barrier to to justice. justice. A A false false confession confession risk risk is is especially especially high high for for vulnerablevulnerable suspects, suspects, such such as as those those with with cognitive cognitive impairments. impairments. These These suspects suspects already already face face multiple multiple disadvantages disadvantages 85 inin the the face face of of the the prosecution prosecution and and trial trial process. process.85
InIn determining determining whether whether the the confession confession was was reliable reliable or or not, not, the the court court in in 1994 1994 focused focused largely largely on on the the accuracy accuracy of of 86 proceduresprocedures followed followed by by police. police.86 The The Court Court was was not not so so concerned concerned with with the the characteristics characteristics of of the the offender, offender, such such as as his his 87 levellevel of of intelligence intelligence and and memory, memory, which which are are known known to to affect affect the the likelihood likelihood of of a a confession confession being being false. false.87 “Any “Any pertinentpertinent characteristics characteristics of of the the defendant defendant including including any any mental mental disability disability to to which which the the defendant defendant is is subject” subject” could could 88 affectaffect the the reliability reliability of of the the statement. statement.88
Page 18 of 28 Appeal Process AppealThe fact Process that Pora’s accounts were “strewn with inconsistencies” and incoherency, the confession was not given Theweight fact untilthat the Pora’s case accounts reached thewere Privy “strewn Council. with89 inconsistencies”Therefore, the courts and arguablyincoherency, need the to placeconfession greater was attention not given on 89 weightthe individual until the characteristics case reached ofthe the Privy accused. Council. Therefore, the courts arguably need to place greater attention on the individual characteristics of the accused. When Pora’s convictions were quashed in 1999, the court noted that false confessions were an established Whenpossibility. Pora’s90 Factors convictions relevant were to quashed this include in 1999,indications the court of the noted defendant’s that false general confessions immaturity were and an inability established to 90 possibility.read, which Factorswere known relevant by topolice this includebefore the indications confession of thewas defendant’s made. Pora generalwas also immaturity diagnosed and with inability foetal alcoholto read, whichsyndrome, were which known further by police established before reasons the confession why his confession was made. may Pora have was been also unreliable. diagnosed Pora’s with conviction foetal alcohol was syndrome,quashed by which the Privy further Council established in 2015 reasons and a retrial why hiswas confession not ordered. may have been unreliable. Pora’s conviction was quashed by the Privy Council in 2015 and a retrial was not ordered. Addressing the Gaps AddressingThere may bethe cases Gaps in which, even with a comprehensive explanation, there remains a risk that rights are not Theresufficiently may beunderstood cases in which,so that evenany purported with a comprehensive waiver will be explanation,ineffective. Police there officers remains should a risk be that alert rights to this, are and not sufficientlyin such cases understood the wise soapproach that any is purported to arrange waiver for the will suspect be ineffective. to be seen Police by a officerslawyer. 91should This would be alert allow to this, suspects, and in 91 suchwho casesdo not the understand wise approach their is rightsto arrange but claimfor the to suspect for any to reason, be seen the by abilitya lawyer. to be This represented would allow and suspects, advised who by dosomeone not understand who fully their understands rights but the claim suspect’s to for any rights reason, and thecan abilitygive frank to be advice represented about theand rationalityadvised by of someone such a 92 whowaiver. fully92 understands The late diagnosis the suspect’s of foetal rights alcohol and syndrome can give frank had advicea pivotal about effect the on rationality Pora’s case. of such It suggested a waiver. thatThe with late diagnosishis mental of state, foetal it alcohol was highly syndrome unlikely had that a pivotalhe could effect have on understood Pora’s case. the It suggestedconsequences that of with waiving his mental his right state, to ait waslawyer highly and unlikely his confessional that he could evidence. have This understood clearly demonstrates the consequences the need of waiving to consider his right the to full a context lawyer and of the his confessionaldefendant when evidence. determining This clearly whether demonstrates confessions theand need other toevidence consider are the reliable. full context of the defendant when determining whether confessions and other evidence are reliable. Following the Pora case, New Zealand politicians spoke out about the opportunity for an independent criminal Followingcase review the commission. Pora case, New Labour Zealand MP Jacindapoliticians Ardern spoke articulated out about concerns the opportunity about the for independencean independent of criminal the current case reviewprocess commission. where the Governor-GeneralLabour MP Jacinda must Ardern apply articulated to the Minister concerns of about Justice the in independence exercising the ofRoyal the currentPrerogative process of whereMercy: the “It’s Governor-General hardly an independent must apply process to the if Ministeryou are actuallyof Justice making in exercising an application the Royal to Prerogative a political ofindividual Mercy: “It’s to hardlymake ana decision independent around process a miscarriage if you are of actuallyjustice.” 93making an application to a political individual to make a decision around a miscarriage of justice.”93
Page 19 of 28 4. Common Themes Across the Three Cases
PolicePolice and and Prosecution Prosecution Process Process AllAll three three cases cases demonstrate demonstrate a common a common theme theme of police of failing police to failing adhere to to adhere proper protocol to proper during protocol the investigation during the andinvestigation evidence collection and evidence processes. collection processes.
PolicePolice Failure Failure to to Conduct Conduct Investigations Investigations Adequately Adequately InIn all all three three cases, cases, police police arguably arguably failed failed to actto act with with due due diligence diligence in conducting in conducting investigations. investigations. For example, For example, in Bain in , theBain failure, the failure of Police of Policeto take to accurate take accurate photographs photographs of the of scene the scene and toand ensure to ensure accuracy accuracy in their in their time-lines time-lines put putthe defencethe defence at a disadvantage at a disadvantage before before the trial the hadtrial begun.had begun.94 94
TheThe gaps gaps inin evidenceevidence thatthat maymay resultresult fromfrom such investigative failures have roll-on effectseffects inin thethe subsequentsubsequent trialtrial processes.processes. It It ultimately ultimately leads leads to to ambiguous ambiguous or or inadequate information being presented to to the the jury jury as as incontrovertibleincontrovertible fact; fact; risking risking the the jury jury being being provided provided with with misleading misleading information. information.9595
PolicePolice Failure Failure to to Procure Procure and and Preserve Preserve Evidence Evidence PolicePolice are are obliged obliged toto ensureensure allall evidenceevidence remainsremains intactintact and accessible for the duration ofof thethe trialtrial process.process. InIn allall threethree cases, cases, police police failed failed toto preservepreserve keykey evidenceevidence crucialcrucial to the defence case forfor thisthis period.period. Arguably,Arguably, thisthis revealsreveals biasbias on on the the part part ofof thethe policepolice inin undertaking investigations; failing to discharge theirtheir basicbasic responsibilitiesresponsibilities toto bothboth sidessides of of the the case case equally. equally. ThisThis raises raises the the question question of of whether the failures are a result result of of the the police police acting acting on on preconceivedpreconceived notions notions of of guilt, guilt, or, or, perhaps, perhaps, are are a a manifestation manifestation of of other other s systemicystemic issues issues within within the the police police system. system.
PolicePolice ‘Tunnel ‘Tunnel Vision’ Vision’ InIn both both Bain Bain and and PoraPora, , psychologicalpsychological evidenceevidence waswas aa strategicstrategic prosecution tool. The policepolice lackedlacked anyany evidenceevidence ofof aa crediblecredible motive motive on on the the part part of of David David Bain Bain to to kill kill his his family. family.9696 In In the the lead lead up up to to the the first first trial, trial, although although police police knew knew of claimsof claims regarding regarding Robin Robin Bain’s Bain’s mental mental instability, instability, they didthey not did conduct not conduct further further investigations investigations into this into claim. this Instead, claim. policeInstead, collected police collectedevidence evidenceof David ofBain’s David “odd Bain’s and “odd disturbing and disturbing behaviour” behaviour” before and before after and the aftermurder the withmurder the objectivewith the objectiveof attempting of attempting to present to the present evidence the asevidence an indicator as an ofindicator guilt.97 of guilt.97
InIn PoraPora, , althoughalthough therethere werewere signssigns ofof thethe defendantdefendant havinghaving made a false confession,confession, policepolice diddid notnot attemptattempt toto investigateinvestigate the the factors factors influencing influencing the the confession; confession; such such as as Pora’s Pora’s mental state.98 As As a a result, result, his his foetal foetal alcohol alcohol syndromesyndrome was was not not diagnosed diagnosed until until the the time time of of the the 2015 2015 appeal appeal to to the the Privy Privy Council. Council. This This behaviour, behaviour, which which might might be takenbe taken to suggest to suggest a desire a desire to toensure ensure Pora’s Pora’s conviction, conviction, occurred occurred despite despite police police having having initially initially ruledruled Pora out asas aa suspectsuspect as as there there was was nono supportingsupporting DNADNA evidence.9999 Furthermore, a seniorsenior policepolice psychologistpsychologist hadhad concludedconcluded thatthat therethere was was a a link link between between previous previous rapes rapes committed committed by by Malcolm Malcolm Rewa Rewa and and the the Burdett Burdett murder. murder. Indeed, Indeed, police police had had a stronga strong suspicion suspicion that that the the murder murder was was the the work work of of a aserial serial rapist. rapist. However, However, PoraPora waswas sent to trial beforebefore DNADNA testtest resultsresults for for RewaRewa hadhad beenbeen concludedconcluded inin orderorder toto fullyfully explore this possibility. As aa result,result, thethe juryjury convictedconvicted PoraPora withoutwithout hearing hearing this this crucial crucial piece piece of of evidence evidence available available to to them. them.100100
Page 20 of 28 BothBoth the the Bain Bain and and Pora Pora cases cases raise raise the the question question of of police police ‘tunnel ‘tunnel vision’, vision’, and and whether whether police police attempted attempted to tojustify justify an initialan initial assumption assumption of guilt of guiltwith the with selective the selective use of usesuch of psychological such psychological evidence; evidence; even in eventhe absence in the absenceof apparent of indicaapparent of credible indica of alternative credible alternative hypothesises. hypothesises.
TrialTrial and and Conviction Conviction Processes Processes
Incomplete,Incomplete, Contested, Contested, or or Weak Weak Evidence Evidence Presented Presented to to the the Jury Jury InIn Bain Bain, ,contested contested andand ambiguousambiguous evidenceevidence waswas presentedpresented asas fact to thethe juryjury byby thethe Crown.Crown. ForFor example,example, the the first first trialtrial proceeded proceeded on on the the assumption assumption that that the the bloody bloody fingerprints fingerprints discovered discovered on the on murderthe murder weapon weapon were wereDavid David Bain’s fingerprintsBain’s fingerprints captured captured in human in human blood. However, blood. However, it was discovered it was discovered after the after trial the that trial the that rifle the gave rifle no gave positive no readingpositive for reading human for DNA. human DNA.
Furthermore,Furthermore, a a 111 111 call call made made by by Bain Bain on on the the morning morning of ofthe the crime crime including including the the words words “I shot “I shot that that (the) (the) prick” prick” was 101 playedwas played to the tojury the in jurythe originalin the original trial. trial.Despite101 Despitethe fact thatthe nonefact that of the none experts of the giving experts testimony giving weretestimony prepared were to confirmprepared the to phrase confirm was the more phrase than was an more “accidental than an arrangement “accidental arrangement of sound resulting of sound from resulting an exhalation from an of exhalation breath”, it 102 wasof breath”, presented it was to presented the jury as to factthe jury that as those fact that words those were words uttered; were anduttered; this and was this as evidencewas used againstas evidence Bain. against The presentationBain.102 The of presentation such contested of such or ambiguous contested or evidence ambiguous to a evidence jury risks to the a jury jury risks discarding the jury expert discarding evidence expert and comingevidence to andtheir coming own conclusions. to their own Subsequently, conclusions. theSubsequently, Supreme Court the Supremedid not accept Court thatdid notthis acceptwas a questionthat this wasof fact a thatquestion should of havefact that been should put to have the beenjury; putand tofound the jury; the mannerand found in thewhich manner the prosecution in which the framed prosecution the indistinct framed theand 103 inaudibleindistinct soundsand inaudible risked speculation.sounds risked speculation.The Court’s 103rebuke The Court’s that juries rebuke should that bejuries reminded should beof thereminded limitations of the of certaintylimitations in regardsof certainty to forensic in regards evidence; to forensic and evidence;strongly advised and strongly to proceed advised with to cautionproceed in with relying caution on such in relying evidence on insuch deciding evidence whether in deciding to convict. whether to convict.
InIn LundyLundy, , the the Privy Privy Council Council considered considered that that Lundy Lundy had had not been given given a a fair fair trial. trial. This This largely largely hinged hinged on on the the 104 conflictingconflicting oror under-developedunder-developed evidenceevidence ofof thethe Crown’sCrown’s expert witnesses. 104 In both both this this and and the the BainBain case, case, the the presentationpresentation of of such such contested contested oror ambiguousambiguous evidenceevidence to a jury may present thethe riskrisk ofof thethe jury jury discarding discarding expert expert evidenceevidence and and coming coming to to their their own own conclusions, conclusions, or orfavouring favouring one one line line of expertof expert evidence evidence over over another another based based on non- on objectivenon-objective factors. factors.
InIn Pora Pora, ,the the key key evidenceevidence thatthat MalcolmMalcolm RewaRewa suffered from erectileerectile dysfunctiondysfunction waswas withheldwithheld fromfrom the the second second jury, jury, whowho convicted convicted Pora Pora at at hishis retrialretrial inin 2000.2000. This evidence is key to Pora’s defence;defence; asas itit indicatesindicates thatthat it it was was unlikely unlikely thatthat Rewa Rewa took took PoraPora alongalong withwith himhim inin thethe rape of Susan Burdett.Burdett. TheThe CourtCourt ofof AppealAppeal upheldupheld thethe conviction conviction later later thatthat year year and and Pora Pora served served another another 13 13 years years in in prison prison before before the the Privy Privy Council Council heard heard his his case. case.
Juries’Juries’ Ability Ability to to Assess Assess Complex Complex and and Contested Contested Expert Expert Evidence Evidence TheThe presentation presentation of of complexcomplex scientificscientific evidence,evidence, suchsuch asas in the Lundy cases,cases, raisesraises thethe questionquestion ofof juries’juries’ ability ability to to objectivelyobjectively assess assess this this type type of of evidence. evidence. This This is isparticularly particularly important important in inrelation relation to evidenceto evidence that that relies relies on novelon novel and developingand developing forensic forensic science science theories theories and methods and methods,, which oftenwhich produce often produce inconclusive inconclusive results and, results in many and, cases,in many are latercases, called are later into calledquestion into following question developments following developments in the field. in the field.
Page 21 of 28 ThisThis issue issue also also needs needs to be to beanalysed analysed in the in context the context of the of Crown’s the Crown’s superior superior ability to ability pay and to pay call andfor expert call for witnesses expert 105 comparedwitnesses tocompared the defence. to the defence. In this situation,105 In this there situation, may bethere an mayinherent be an risk inherent that the risk jury that may the accord jury may the evidentiaryaccord the valueevidentiary of certain value expert of certain testimonies expert moretestimonies weight more than others.weight than others.
JuryJury Bias Bias AA common common problem problem inin high-profilehigh-profile casescases isis the significant level of mediamedia scrutinyscrutiny andand reportingreporting beforebefore the the matter matter proceedsproceeds to to trial. trial. ThisThis increasesincreases thethe possibilitypossibility of jury bias. For example, fromfrom thethe beginningbeginning ofof LundyLundy, ,the the media media engagedengaged in in speculation speculation surroundingsurrounding Lundy’sLundy’s possiblepossible rolerole in the killings that maymay havehave resultedresulted inin somesome in in some some membersmembers of of thethe juryjury beingbeing influencedinfluenced byby public opinion at large, and thereforetherefore convictingconvicting himhim onon thethe basisbasis of of preconceivedpreconceived ideas ideas of of his his guiltguilt ratherrather thanthan evidence before the Court. MostMost notably,notably, hishis weepingweeping and and collapsing collapsing at at thethe funeral funeral of of his his wifewife andand daughterdaughter waswas popularly derided as aa performanceperformance duedue toto itsits melodramatic melodramatic nature, nature, with with attitudesattitudes such such as as thosethose containedcontained inin thethe remarkremark “remember him at the funeral?funeral? AllAll thatthat overover thethe toptop distress distress and and 106 collapsingcollapsing bullshit bullshit masked masked by bydark dark glasses... glasses... How Howvile and vile despicable... and despicable... big fat filthy big fatbastard” filthy bastard” gaining106 significant gaining currencysignificant at thecurrency time; atsuggesting the time; publicsuggesting suspicion, public verging suspicion, on predetermination,verging on predetermination, as to Lundy’s as guilt. to Lundy’s guilt.
Indeed,Indeed, according according to to Bennett,Bennett, jurorsjurors oftenoften suffersuffer from implicit biasesbiases thatthat areare “unstated,“unstated, unrecognisedunrecognised and and operate operate 107 outsideoutside the the conscious conscious awareness”awareness”107that that willwill notnot be caught by pre-trialpre-trial screening;screening; potentiallypotentially resultingresulting inin jurors jurors in in high-profilehigh-profile cases cases being being subject subject to to preconceptions preconceptions that that bias bias them them towards towards a a particular particular outcome. outcome.
FallibilityFallibility of of Eyewitness Eyewitness Identifications Identifications 108 EyewitnessEyewitness identifications identifications areare aa crucialcrucial partpart of criminal trials, and areare accordedaccorded significantsignificant weightweight byby thethe jury. jury.108 EyewitnessEyewitness identifications identifications were were aa keykey partpart ofof thethe prosecution’s case in all threethree ofof thesethese cases.cases. However, However, research research hashas demonstrateddemonstrated thatthat eyewitnesseyewitness examinationsexaminations are “systemically fallible”; and may may therefore therefore serve serve to to obstruct obstruct 109 ratherrather than than further further the the objectivesobjectives ofof fairnessfairness and securing a safe convictionconviction thatthat underpinunderpin thethe rules rules of of evidence. evidence.109 AsAs noted noted by by Justice Justice Binnie, Binnie, it is it always is always tempting tempting for a forwitness a witness on re-examination on re-examination to add self-serving to add self-serving details knowing details thatknowing opposing that counselopposing are counsel no longer are noat libertylonger toat cross-examine;liberty to cross-examine; potentially potentiallyleading to leadingthe putting to the of puttingextraneous of 110 evidenceextraneous to theevidence jury capable to the juryof endangering capable of endangering the safety of theany safetyconviction. of any conviction. 110
AppealAppeal Processes Processes
Crown’sCrown’s Disproportionate Disproportionate Resources Resources Compared Compared to to the the Defence Defence ThereThere is is aa significantsignificant disparitydisparity inin resourcesresources between the Crown and thethe DefenceDefence -- especiallyespecially followingfollowing thethe recent recent decreasedecrease in in legallegal aidaid fundingfunding -- andand restrictions on the process associatedassociated withwith suchsuch fundingfunding meansmeans aa significant significant 111 amountamount of of defence defence time time isis takentaken upup by seeking funding rather than onon thethe legallegal work.work.111 The The expenses expenses associated associated withwith appealing appealing a a conviction conviction therefore therefore present present a asignificant significant obstacle obstacle to to justice justice insofar insofar as as both both parties parties do do not not have have an equalan equal ability ability to bear to bear the coststhe costs of the of appeal,the appeal, or to or employ to employ resources resources in contesting in contesting the process.the process.
AsAs the the Privy Privy Council Council noted, noted, Lundy Lundy wanted wanted to to appeal appeal to to the the Board Board immediately immediately after after the the Court Court of Appealof Appeal decision, decision, but 112 wasbut unablewas unable to do to so do due so due to lackto lack of oflegal legal aid aid and and inability inability to to fund fund an an appeal. appeal.112 ThatThat Bain,, Lundy, andand PoraPora were were successfullysuccessfully brought brought to to appeal appeal due due to to campaigning campaigning by by champions champions such such as asJoe Joe Karam, Karam, Geoff Geoff Levic, Levic, Tim Tim McKinnel McKinnel and David Hislop QC indicates that the opportunity of pursuing appeal may rely on others being willing to invest their Page 22 of 28 ownown time time andand resourcesresources inin thethe case.case. InIn turn, this may result inin thethe overturningoverturning ofof unsafeunsafe convictionsconvictions hinginghinging on on publicpublic sentiment sentiment and and media media exposure.exposure. ThisThis statestate of affairs is encapsulated byby NigelNigel HamptonHampton QCQC when when he he remarks remarks thatthat the the currentcurrent systemsystem mustmust relyrely heavilyheavily onon “white knights” willing toto workwork forfor littlelittle payment,payment, withwith thosethose falsely falsely 113 convictedconvicted depending depending on on assistance assistance from from lawyers, lawyers, private private detectives, detectives, scientists scientists or or journalists journalists to to clear clear their their names. names113
114 RecentlyRecently Justice Justice Winkelmann Winkelmann suggested suggested justice justice services services have increasingly have increasingly become a product become to abe product“marketised.” to be Although“marketised.” these114 remarkable Although these comments remarkable were commentsmade in the were context made ofin the contextwidening of theunmet widening need forunmet access need to forthe justiceaccess system to the in justice civil cases, system her in words civil cases,resonate her with words the resonatesteady decrease with the in steadylegal aid decrease funding in available legal aid to fundingcriminal defendants,available to and criminal draw attention defendants, to the and broader draw attentionimplications to theof the broader relationship implications between of theimposing relationship fiscal constraints between onimposing supporting fiscal defendants constraints and on the supporting accessibility defendants of reliable and justice the accessibilityand, by extension, of reliable the fairness justice ofand, our by Courts. extension, the fairness of our Courts. and David Hislop QC indicates that the opportunity of pursuing appeal may rely on others being willing to invest their
Page 23 of 28 5. If there are gaps, how can we address them to deliver more
adequate justice?
EstablishEstablish an an Independent Independent Criminal Criminal Review Review Commission Commission ItIt has has been been proposed proposed that that establishing establishing an an Independent Criminal Review Review Commission Commission as as an an alternative alternative to to the the currentcurrent use use of of the the Royal Royal Prerogative Prerogative of of Mercy Mercy may may reduce reduce the the number number of of innocent innocent individuals individuals in in our our prisons. prisons.115115
ThisThis recommendation recommendation is based is based on the on model the model provided provided by the United by the Kingdom’s United Kingdom’s Criminal Case Criminal Review Case Commission Review (theCommission ‘CCRC’). The (the CCRC ‘CCRC’). has Thethe CCRCpower has to send,the power or refer, to send, a case or back refer, to a an case appeal back courtto an ifappeal it considers court ifthat it considers there is a realthat possibilitythere is a thereal courtpossibility will quashthe court the will conviction quash the or reduceconviction the or sentence reduce the in thatsentence case. in Typically, that case. courts Typically, at an appellatecourts at level an appellate focus on level matters focus of on law matters and regard of law only and errors regard in only law errors as grounds in law for as appeal. grounds An for independent appeal. An commissionindependent would commission instead wouldmake inquiriesinstead make into casesinquiries where into there cases is wherea possibility there isthat a possibility the court hasthat madethe court a wrong has findingmade a on wrong the matter finding of on factual the matter evidence. of factual116 There evidence. are several116 There potential are several advantages potential to constituting advantages an to independentconstituting reviewan independent body such reviewas the CCRC:body such as the CCRC: •• SuchSuch aa bodybody wouldwould createcreate greatergreater oversight and accountability for for the the judicial judicial process process through through reviewing reviewing allegationsallegations of of bias bias and and misjudgement misjudgement in in criminal criminal cases; cases; promoting promoting public public confidence confidence in inthe the reliability reliability of theof justicethe justice process, process, and thereforeand therefore respect respect for judicial for judicial outcomes. outcomes. •• SuchSuch a a body body may may aid aid in inallowing allowing convicted convicted persons persons who who do notdo nothave have the resourcesthe resources to make to make an appeal an appeal to enjoy to equalenjoy accessequal toaccess justice to justicecompared compared to better to resourcedbetter resourced prisoners prisoners - particularly - particularly in the incase the of case prisoners of prisoners whose caseswhose do cases not attract do not the attract sympathy the sympathy that elicited that private elicited funding, private funding,such as in such the Bainas in andthe PoraBain casesand Pora - but cases whose - convictionsbut whose areconvictions equally unsafe.are equally unsafe. •• SuchSuch a abody body may may well, well, in cases in cases such suchas Bain as whereBain wherethere is there significant is significant incomplete, incomplete, inconclusive, inconclusive, or otherwise or questionableotherwise questionable evidence, be evidence, able to beundertake able to aundertake more thorough a more andthorough impartial and investigation impartial investigation than the police, than prosecution,the police, prosecution, or defence. or defence. •• SuchSuch aa bodybody maymay wellwell aidaid inin ensuringensuring that, in cases where the the high-profile high-profile nature nature of of a a matter matter may may have have resultedresulted in in implicit implicit biasesbiases inin juryjury decision-making,decision-making, by allowing for aa bodybody ofof individualsindividuals betterbetter possessed possessed of of thethe ability ability to to consider consider the the facts facts of of the the case case impartiality impartiality to to have have oversight oversight of of the the matter. matter. However, However, this this must must be consideredbe considered in light in light of James of James P Brady’s P Brady’s admonishment admonishment that that “[t]he “[t]he conclusion conclusion is notis not that that jury jury trials trials should should be avoidedbe avoided or minimised, or minimised, since sincejudges judges are apt are to aptbe evento be more even predisposed more predisposed against dissidents”.against dissidents”.117 This suggests117 This itsuggests will also itbe will important also be to important also take careto also at trial take to care emphasise at trial tothat emphasise jurors disregard that jurors extraneous disregard influences. extraneous • Suchinfluences. a body may well also allow for the streamlining of the appeals process by allowing for the efficient • collectionSuch a body of relevant may well evidence also allow in advance for the ofstreamlining the commencement of the appeals of proceedings. process by allowing for the efficient collection of relevant evidence in advance of the commencement of proceedings. New Zealand’s appeal process is criticised as being too narrow in focus, and places excessive emphasis on technical proceduresNew Zealand’s rather appeal than the process substantive is criticised merits as of being the competing too narrow cases. in focus, Many andbelieve places that excessive the implementation emphasis on of suchtechnical a commission procedures should rather therefore than the be substantive just one part merits of aof broader the competing holistic approach cases. Many to reducing believe that wrongful the convictionsimplementation by interrogating of such a our commission approach to should reviewing therefore the safety be justof convictions. one part of118 a broader holistic approach to reducing wrongful convictions by interrogating our approach to reviewing the safety of convictions.118
Page 24 of 28 TheEstablish CCRC has achieved an Independent significant success Criminal in the United Review Kingdom. Commission Similarly to New Zealand, it was believed that the British criminal appellate system was too constrained and narrow, and therefore not an appropriate instrument to It has been proposed that establishing an Independent Criminal Review Commission as an alternative to the use to try to identify and rectify miscarriages not related to technical matters.119 As a result, the CCRC was given current use of the Royal Prerogative of Mercy may reduce the number of innocent individuals in our prisons.115 wide-ranging powers to make the fullest of factual inquiries. From 1997 – 2009, the Commission has overturned, or taken steps leading to the overturning of more than 200 wrongful convictions.119 This recommendation is based on the model provided by the United Kingdom’s Criminal Case Review Commission (the ‘CCRC’). The CCRC has the power to send, or refer, a case back to an appeal court if it considers that there is a However, such institutional changes face significant challenges. Increased vigilance towards miscarriages of justice real possibility the court will quash the conviction or reduce the sentence in that case. Typically, courts at an has the potential to make the criminal justice system appear uncertain and unreliable; an undesirable outcome as it appellate level focus on matters of law and regard only errors in law as grounds for appeal. An independent may, carried to an extreme, militate against popular support of the rule of law.120 There is also, at-least at the time of commission would instead make inquiries into cases where there is a possibility that the court has made a wrong writing, a lack of support amongst the political elite for such a reform; with Prime Minister John Key and Justice finding on the matter of factual evidence.116 There are several potential advantages to constituting an independent Minister Amy Adams suggesting that an independent commission would replicate the procedures that are currently review body such as the CCRC: in place. Key has stated his belief that 99.9% of cases are up-held on appeal, and an Independent Commission • Such a body would create greater oversight and accountability for the judicial process through reviewing would be unlikely to achieve little more than being redundant costly and undermining the integrity of existing allegations of bias and misjudgement in criminal cases; promoting public confidence in the reliability of the processes. These statements correspond to the immediate past Justice Minister Judith Collins’s confidence in New justice process, and therefore respect for judicial outcomes. Zealand’s safeguards against miscarriages of justice.121 • Such a body may aid in allowing convicted persons who do not have the resources to make an appeal to enjoy equal access to justice compared to better resourced prisoners - particularly in the case of prisoners whose Othercases Areas do not for attract Reform the sympathy that elicited private funding, such as in the Bain and Pora cases - but whose The threeconvictions cases examined are equally in unsafe.this report suggest that reform should also include, amongst other areas, ways to address• Such wrongful a body confessions may well, inand cases inaccurate such as eyewitnessBain where identifications.there is significant The incomplete,mandatory video-tapinginconclusive, ofor allotherwise police 122 interviewsquestionable may be an evidence, effective safeguardbe able to against undertake wrongful a more confessions thorough being and impartial used in order investigation to obtain than convictions. the police, This wouldprosecution, protect vulnerableor defence. suspects by constraining the use of coercive practices during interviews to obtain confessions.• Such a Mistaken body may eyewitness well aid in identifications, ensuring that, however, in cases are where a more the high-profile difficult problem nature toof aaddress. matter mayResearch have indicatesresulted that expert in implicit testimony biases on in the jury shortcomings decision-making, of using by allowing eyewitness for aidentification body of individuals can be anbetter effective possessed way of of 123 improvingthe jurorability functioning to consider in the considering facts of the this case evidence. impartiality to have oversight of the matter. However, this must be considered in light of James P Brady’s admonishment that “[t]he conclusion is not that jury trials should be avoided or minimised, since judges are apt to be even more predisposed against dissidents”.117 This suggests it will also be important to also take care at trial to emphasise that jurors disregard extraneous influences. • Such a body may well also allow for the streamlining of the appeals process by allowing for the efficient collection of relevant evidence in advance of the commencement of proceedings.
New Zealand’s appeal process is criticised as being too narrow in focus, and places excessive emphasis on technical procedures rather than the substantive merits of the competing cases. Many believe that the implementation of such a commission should therefore be just one part of a broader holistic approach to reducing wrongful convictions by interrogating our approach to reviewing the safety of convictions.118
Page 25 of 28 Endnotes
Section Two: The Facts of the Cases (pp 4-14) national/crime/67412495/Mark-Lundy-murder-retrial-Evidence- 1 Pora v R [2015] UKPC 9 at 3. changes> 2 At 7. 41 R v Lundy, above n 25, at [131]. 3 At 8-11. 42 At [139]. 4 At 9. 43 At [142]. 5 At 3. 44 Lundy v R, above n 38, [127]. 6 Phil Taylor, “'Innocent man' in jail 20 years” The New Zealand Herald 45 At [128]. (online ed, New Zealand, 19 May 2012); Pora v R [2015] UKPC 9 46 At [150]. at [16]. 47 R v Matenga [2009] 3 NZLR 145. 7 R v Pora (1994) 1 HRNZ 273 (CA) at 278. 48 At [151]. 8 At 278; New Zealand Bill of Rights Act 1990, s 23. 49 Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [13]. 9 At 281. 50 R v Bain [1996] 1 NZLR 129 (CA) at 689. 10 R v Pora [1999] NZCA 231 at [24] per Panckhurst J. 51 At 688. 11 At [24] per Panckhurst J. 52 At 689. 12 At [24] per Panckhurst J. 53 Bain v R, above n 49, at [23]. 13 Pora v R, above n 1, at [20]. 54 At [28]. 14 At [20]. 55 R v Bain [2004] 1 NZLR 638 (CA) at [164]. 15 At [55]. 56 At [165]. 16 Ibid. 57 Bain v R, above n 49, at [119]. 17 At [58]. 58 At [118]. 18 At [59]. 59 At [119]. 19 R v Pora, above n 7, at 281. 20 R v Pora CA447/98, 28 September 1999. Section Three: Are there gaps in the prosecution, trial, conviction, 21 R v Pora, above n 19, at 261. and appeal processes in our Criminal Justice System that may 22 Pora v R, above n 1, at [58]. lead to a miscarriage of justice? (pp 15-19) 23 Taroi Black, “Privy Council Recommends no re-trial for Teina 60 Gary Edmon “Constructing Miscarriages of Justice: Pora” (March 30 2015) Maori Television News Page 26 of 28 changes” (15 March 2015) Stuff Page 27 of 28 A Student-Led Pro Bono Organisation Based at the University of Auckland, New Zealand Page 28 of 28 A Student-Led Pro Bono Organisation Based at the University of Auckland, New Zealand