Still working for justice

Sir Thomas Thorp

Sir Thomas Thorp has forbidden himself from discussing the merits of this case or that. So we can't expect him to tell us that the Peter Ellis case piqued his interest in the issue of miscarriages of justice, but it's a fair bet.

The former High Court judge and Parole Board chairman has spent much of the past two years researching and writing a report about how we and comparable justice systems deal with claims of wrongful conviction.

His verdict is that the occurrences of miscarriages of justice in New Zealand are under-estimated. By his estimate, up to 20 victims of unjustifiable convictions could be in jail now.

And he recommends we set up a special authority, independent of the Justice Ministry, with adequate funding and resourcing, including its own investigative capacity.

Sir Thomas funded the project himself. His work during two years involved travelling to England and Scotland and numerous journeys to Wellington.

His findings will carry additional weight because of who he is, one of the country's most-respected High Court judges. He had 31 years of involvement in Crown prosecution work, having prosecuted his first case at the tender age of 23.

Labour and National governments have called on him to conduct ministerial inquiries.

Seated in the sunny study of his Parnell home, he's unsurprisingly judicious as he discusses his paper, called simply "Miscarriages of Justice".

About how his interest in the topic arose sufficiently for him to put in the time, effort and money, he says this much: It came from being asked by the Justice Ministry to give an opinion on a number of claims of miscarriage. "Ellis in 1999 was the first of them."

He follows with a pre-emptive apology. For the purposes of his research the ministry gave him access to its files so long as he respect confidence and privacy. He can't, therefore, kiss and tell. "So, I'm afraid I'm not being very helpful."

We know, however, from media reports that at least some of the inquiries the ministry requested he do were into the convictions of Ellis, David Bain and Alec Waugh (see accompanying story). In only one of those three cases was he confident the conviction was safe.

That work led him to make his study. "I became concerned about limitations which procedures which were then current seemed to me to impose. I persuaded the ministry to let me look broadly at the procedures and that's how the thing developed."

He doesn't go out of his way to be critical or to be an advocate for a particular petitioner but it's clear he found numbers of weaknesses in our system.

He got to examine 53 claims of miscarriage of justice filed with the ministry from 1995 to 2002, all of which had been determined. A retired judge or senior counsel was asked to look at only five of them.

Sir Thomas does not comment on the outcome of the 53 claims but the Weekend Herald understands there have been half a dozen cases in which some relief was given or the convictions were quashed completely.

"One thing that staggered me," says Sir Thomas, "was there seemed such unanimity in the overseas literature that there had been conservatism in the estimates of the frequency of miscarriages."

From the early 1900s those who had claimed that injustices were more frequent than was recognised were discounted, only to be proved right with the passage of time.

The pattern is similar in New Zealand. In 1992 the Court of Appeal said there was no need for a separate authority because one or two claims a year of a miscarriage would be a "generous estimate". By the turn of the century claims averaged 10 a year, by 2003 the estimate was 10 to 15.

"I think law of necessity has to be conservative," says Sir Thomas. "You don't want people who are supposed to be administering the law to become active reformers.

"Most of these people try their damnedest to achieve justice and there's a reluctance to accept that because the work involves human judgment it is going to be faulty at times." Healthy systems, though, continually work to minimise such errors.

In his research, Sir Thomas found that Maori and Pacific Islanders were far less likely to make claims of miscarriage of justice than Pakehas, when there was nothing to suggest it would affect that group any less.

"I don't know the reason. I hypothesise that it may be that they are outside, that they are not understood by the justice system.

"I think that there is in our racial difficulty a sense that people are not understood, which is complex and not open to simple resolution. But, surely, changing from the present self-generating system, which requires complainants to hold their hand up and come up with a written petition or claim, to a system which actually goes out to make sure that all convicted people are aware there is this authority and it will help them formulate a claim if need be, that should make some difference."

Concern that this may open the floodgates to fictitious claims, be merely a new level of appeal and lower the public estimation of the courts was not been borne out by the experience of the United Kingdom Criminal Cases Review Commission (established 1997) or its Scottish counterpart, set up two years later. The proportion didn't much change; there was an increased number of claims and also of cases held to be meritorious.

A 2003 Justice Ministry discussion paper on the topic identified two serious options: strengthen the ministry's unit (2.25 staff members as at 2002) which deals with claims or establishing a three-person independent review body supported by the ministry.

Sir Thomas says the latter is preferable but does not go nearly far enough. To be credible as an independent body it had to be self-sufficient and funded to do the job properly.

The experience of the United Kingdom was that unless the examining body was seen to be totally independent of the establishment a lot of people did not apply.

"Looking at it from the situation of the prisoner who has been convicted, wrongly in his view, and has then appealed and been told his case is of no merit, the idea of going back to an office within the same establishment is unattractive.

"I think in New Zealand this may be particularly so because of this strange business of Maori and Pacific Islanders not claiming."

Such an independent body may have appealed to someone like David Dougherty, whose conviction for the rape of an 11-year-old girl was quashed in 1997 after his defence team presented DNA evidence which established that semen in the victim's underwear was not his. Dougherty had spent four years in prison.

The development of DNA technology has proven wrongful convictions in many cases, particularly in the US and Canada.

Sir Thomas regards his work as a start rather than a definitive study but his past two years of inquiry has convinced him we should follow Scotland and the United Kingdom commissions. A commission similar to Scotland's, a country with a similar population and prison population, would cost $2-$3 million a year.

Sir Thomas chose to end his report by quoting the chairman of Scotland's commission, the Very Reverend Graham Forbes. He'd asked Forbes whether the Scottish Government felt it was getting value. Forbes thought so, his government had never quibbled about the cost. Forbes then added: "Of course it all depends how robust you want your justice system to be."

And that, says, Sir Thomas "is exactly what it's all about".

* A seminar on Sir Thomas' paper, organised by the Legal Research Foundation, is to be held at Auckland University on February 24. 
 

Thorp reports cast doubt on high profile convictions 

Two of three cases which Sir Thomas Thorp assessed at the request of the Government gave him cause for concern. A miscarriage of justice had occurred in one and the other led him to express doubts about the safety of the conviction. Thorp reports for Government:

* 1999, Peter Ellis

Report expressed concerns about the safety of Ellis' conviction. It said Ellis' two petitions for a pardon raised "a considerable number of issues sufficiently to point to a need for further investigation".

His report identified the techniques used to interview the children, potential contamination of their evidence and assessment of the children's reliability as central. He said if the concerns expressed by several experts proved to have general support, "it would in my view be difficult to argue against the existence of a serious doubt about the safety of [Ellis'] convictions".

Ellis was convicted in 1993 of 16 charges of sexual abuse against children at the Christchurch Civic Creche. He was sentenced to 10 years' imprisonment and after serving two-thirds of the sentence was released in February 2000.

His bid to prove he is innocent has involved two petitions for pardons and two Court of Appeal hearings.

In his report, Sir Thomas Thorp recommended the Government get a formal opinion from Professor Stephen Ceci, of Cornell University, whose work on the subject of accuracy of children's courtroom testimony has won acclaim. That appears not to have been acted on.

A report by former Chief Justice Sir Thomas Eichelbaum, released in 2001 said Ellis had failed by a "distinct margin" to prove the convictions were unsafe. However, Phil Goff, who was Justice Minister at the time, said the Thorp and Eichelbaum inquiries were based on different material.

In August, Parliament's Justice and Electoral Committee declined a request for a Royal Commission into the Ellis case but recommended New Zealand establish a body to look into possible miscarriages of justice similar to Britain's Criminal Cases Review Commission.

* 2002, Alec Waugh

Found that improper pressures were placed on Waugh, a former police superintendent, to change his plea in a 1998 court case. Waugh had, midway through evidence, pleaded guilty to 10 charges of making fraudulent expense claims. Following Sir Thomas' report, his convictions were quashed, he received compensation and was reappointed to the police as a deputy commissioner.

* 2003, David Bain

Was satisfied on information available that there had been no miscarriage of justice.