Report on the Equal Justice Project Outreach Symposium: Miscarriages of Justice – Are We Putting the Wrong People in Prison?

Jason Kim

In light of the recent high-profile decisions in the David Bain, Mark Lundy, and Teina Pora cases, the Equal Justice Project Outreach Team hosted a symposium discussion to discuss whether there are any gaps in the prosecution, trial, conviction, and appeal processes and what we can do to address these issues and deliver more just results. (You can read the full Symposium Paper here). We were lucky enough to host a star-studded lineup of guests, including Jacinda Ardern (Labour MP based in Auckland Central and Justice Spokesperson), Marie Dyhrberg QC (counsel for Pora, ADLSi Criminal Law Committee Chair, former (and first female) Chair of the Criminal Law Committee of the International Bar Association), Julie-Anne Kincade (barrister from Lundy’s defence team), Peter Jenkins of the Sensible Sentencing Trust, and Dr John Buttle (senior Criminology lecturer at AUT).

The evening began with a discussion of the lessons learned from the three high profile cases. Marie Dyhrberg QC emphasised the fallibility of people conducting the trial process. There will always be gaps and imperfections in any process with a human element: unconscious biases which sway juries and investigators; strange coincidences which occur in the course of life which may place the accused in a circumstantially unfavourable light; and of course general incompetence and mistakes made during the entirety of the process from police investigations to the trial and appeal processes. At the same time, such gaps can be minimised if not completely eliminated, but there are structural inadequacies which do not help the matter all. Particularly, she noted “we keep coming back to resources, funding, and money.”

Peter Jenkins also noted that the original Crown case had many notable flaws in the Lundy trial – for instance if Lundy actually did manage to drive from Petone to Palmerston North in the time alleged, Jenkins remarked that perhaps Lundy should have pursued a career as a racing driver. There was unanimous agreement from the panellists that there were indeed intolerable gaps in the process which led to unjust results: “the Sensible Sentencing Trust wants longer sentences for guilty people, not for innocent people,” said Mr Jenkins, “if we have longer sentences we must be sure that they are genuinely guilty.” Moreover, Mr Jenkins compared the feeling of powerlessness that a wrongly accused person would feel is similar to that which a victim of crime would feel, and therefore the Trust was especially sympathetic of their plight.

In her opening remarks, Jacinda Ardern wanted to emphasise that in addition to these high profile instances of failure by our criminal justice system, there are many other ways in which are justice system is less than perfectly fair or accessible. For instance, she talked about the difficulty in obtaining legal aid, as well as the phenomenon of trials occurring in different regions sometimes producing markedly different outcomes. There is a natural advantage to those who are well-resourced and have a “white knight” assisting their case. Again, there is broad agreement that the lack of adequate resourcing in the justice sector is contributing to the gaps evident in our system.

Dr John Buttle’s area of emphasis was in the pre-trial phase of the process – notably relating to police conduct. Whilst he was sympathetic to the political pressure put on the police due to the public outrage which accompanies these crimes, such pressures distort the investigative process in a way where the primary goal is to “bring someone in for the crime.” Jacinda Ardern added that, as the daughter of a Hamilton area police detective, she is uniquely placed to understand the insular culture of the police. Given how difficult a job it is, when placed under criticism the police will often feel that the public don’t truly understand what goes into an investigation. As such there will be a closing of ranks when something highly controversial happens and such cultural factors can play a role in how the police enact (or more accurately, fail to enact) organisational improvements in relation to procedure.[1]

But Marie Dyhrberg QC shed light on how difficult such attitudes make her job as defence counsel, as without the assistance of her own “Deep Throat” feeding her information, there would certainly have been an unjust outcome in her trials. She noted also, however, how she has been assisted by forthright disclosure from police officers in some cases. This highlights, arguably, the significant role played by the attitudes of individual actors in the criminal justice system to the integrity of convictions in a system featuring a high level of discretion. Ms Kincade would like for there to be a greater access to technology which would help bridge such information gaps.

The next area of discussion revolved around the unreliability of certain kinds of witness evidence at trial. It was asked whether there should be stricter rules on who can give witness at a trial, to prevent situations like in the Bain case which featured perjured jailhouse informant testimony. From a practical point of view, allowing prisoners to give testimony presents difficulties for defence teams, as they have to go through an extensive vetting process to examine the prison files and investigate whether the witness was receiving some kind of benefit as a result of testifying. Officials have a naïve view that prisoners testify not for their own benefit but because it’s the “right thing to do.” Ms Dyhrberg seemed sceptical of that notion. Indeed, Ms Kincade expressed some amazement at the standard of evidence allowed in high profile New Zealand cases, compared to her experience practicing in the United Kingdom.

According to Dr Buttle, any kind of eyewitness testimony will present problems. For instance he cited studies where a witness may be convinced that the person they identified in a police lineup was who they saw at the crime scene, but that in fact internal unconscious cognitive biases led them to pick the wrong person. Ms Dyhrberg QC added an amusing anecdote to that effect as well, recalling a trial where a witness was asked to identify the offender. She pointed, with great conviction at someone sitting in the court room. Defence counsel asked her whether she was sure, and she said she was. Counsel then, with a perfectly straight face, declared: “let it be noted on the record that the witness identified the New Zealand Herald reporter.”

Given these evidentiary flaws in the system, it is a lot to ask juries to assess ambiguous and conflicting evidence impartially. But Mr Jenkins dismissed the idea that we should have a higher standard of evidence – he believed that juries are helped out by having as much information as possible, and that should include access to all witness testimony, no matter the source. He believes that juries take their responsibilities seriously, but that they are simply being asked of too much. Rather, Mr Jenkins advocated for a professional class of trained juries to cope with complex cases such as the ones we highlighted for discussion.

Next up was a more in-depth discussion of where the lack of resources for defence counsel (and the accused) can lead to miscarriages of justice. To qualify for legal aid, a case must be shown to have merit – but as Ms Dyhrberg QC points out, unless you can examine the case then you’re not going to know whether it has any merit. Such examination requires resources, and currently is only being undertaken by “white knights” who take up your case.

Following this examination of the investigative and trial processes, we turned our attention to the ambulance at the bottom of the hill: what role an Independent Criminal Review Commission could play in rectifying miscarriages of justice. Ms Kincade said it was sad that such a Commission was not in place, and that we have a system where prisoners feel like they’re not getting a “fair crack of the whip.” Indeed, the existence of such a Commission in New Zealand would have made a difference of five years for Pora, by her estimation.  Dr Buttle supported establishing such a body in the abstract, but had concerns about how truly independent such a body could be. He concluded that for an Independent Commission to have any teeth, it would need to be built in a way that makes it resistant to political and public pressure.

Finally, the discussion concluded with some questions from the floor. One particularly interesting question related to whether shifting to more of an inquisitorial system would have any merit. Ms Dyhrberg QC was a staunch supporter of the adversarial system – if we didn’t have lawyers representing each side, then who would “run the show”? The judges we pick come with their own sets of biases, and ditching the adversarial system should not be seen as a panacea to the biases present in the current system. She thinks the solution is to make sure that the sides are on an even playing field (in terms of resourcing), not necessarily to throw the baby out with the bathwater with a complete system change. Dr Buttle supported an inquisitorial system in a narrow range of cases – for instance in sexual violence trials where an adversarial system requires one side to attack the victim’s credibility. However he noted that inquisitorial systems could be more open to corruption; citing the Indonesian example brought into the public consciousness lately following allegations of corruption in the case of the Bali Nine ringleaders. In an adversarial jury trial, you can’t simple pay off a corrupt judge and walk away as happens in some inquisitorial jurisdictions.

Blackstone’s formulation that “it is better that ten guilty persons escape than one innocent suffer” is a fundamental bedrock of our criminal justice system, underpinning the presumption of innocence. Clearly however, that maxim is more of an aspiration than a reality. As noted during the discussion, it may not ever be possible for the justice system to be correct 100% of the time. But at the same time, it seems an unacceptable state of affairs that the gap is wider than it could be due to a lack of resourcing, which can often lead to significant imbalances between the Crown and the defendant. Meanwhile, the police need to ensure that they improve their processes in order to ensure that investigations are not compromised by public and political pressure. On the other hand, we can play our role in ensuring that the police are held accountable without going so far as putting undue pressure on their efforts to do so. Moreover, the standard of permissible evidence could be improved, to ensure a fairer trial process.

We would like to thank everyone who took the time to attend the symposium, and of course thank you to all of our speakers, who provided an illuminating discussion on some of these crucial issues.

[1] Ms Ardern was unfortunately unable to continue in the discussion beyond this point as she had to depart in order to fulfill a prior commitment.

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