Today, it’s a no-brainer that Alan Hall was wrongfully convicted of the 1985 murder of Arthur Easton and of wounding his son Brendan. Why it took so long and whether we will pause to learn the inherent lessons are important questions.
The prosecution case had multiple problems, the most alarming being changes to an eyewitness’s statement without his knowledge. In its unaltered form, the statement would have meant Hall, a Pākehā, could not have been the man the witness saw the night Easton died of stab wounds in his Papakura home.
In the altered version, the witness’s emphatic description of the offender as Māori was removed and an assertion was added that the witness had identified a sweatshirt from Hall’s home as the one worn by the man he saw, when the witness had not been shown it. All other evidence that might have alerted the defence to these prejudicial changes was concealed.
In its judgment quashing Hall’s convictions, the Supreme Court said, “The crown accepts that such departures from accepted standards must either be the result of extreme incompetence or of a deliberate and wrongful strategy to secure conviction.” As well as a renewed homicide investigation and an Independent Police Conduct Authority inquiry, police are looking into the deception at the heart of this miscarriage of justice.
Hall was denied justice by a series of failings following his wrongful conviction. For cases like his, getting to the point of exoneration is often frustrating and almost always exhausting. It can take years, sometimes decades. Then, when we get there, too often we are content to learn very little.
The $5 million in compensation awarded to Hall is the biggest sum for a miscarriage of justice, surpassing the $3.5m paid in 2016 to Teina Pora, who was jailed for a 1992 rape and murder he did not commit. It took 22 years to put Pora’s case right. Yet there was no inquiry and no public indication of any police review. Over decades, Hall’s family got accustomed to official deafness. Evidence about the eyewitness statement has been known to justice officials since 1988. Two royal prerogative appeals failed to register its importance. So, what is the problem?
Hall’s lawyer, Nick Chisnall, KC, speaking on August 18, the day Hall received a formal apology: “What is required is a reduction in the human frailty, which is people hanging on to convictions, being dogged about it. And that’s what I think went wrong in Alan’s case.”
The frailty Chisnall refers to is an aversion to acknowledging mistakes. Bruce Stainton, the lawyer who presented Hall’s third application for the prerogative of mercy appeal in 1993, told the Listener that in his opinion, the application failed because the advice from justice officials was “biased in favour of the status quo”. Stainton believes they applied the wrong test and overstepped their role. He has asked for an explanation.
Both Pora and Hall ran up against a detachment, sometimes an arrogance, and a form of neglect inherent in an appeals system ill-equipped for the substantive review these cases required. Hall succeeded with his fifth appeal only after a sequence of serendipitous circumstances triggered by a journalist’s investigation. Pora’s supporters went overseas to get his justice; the Privy Council in 2015 quashed his convictions. Serial rapist Malcolm Rewa, whose DNA was at the scene, has since been convicted of the 1993 murder for which Pora spent 20 years in jail.
There are undoubtedly other unrecognised miscarriages. Until the Criminal Cases Review Commission (CCRC) was set up in 2020, with its own resources and investigative powers, our system was not capable of a full review. That absence made the impulse of some in authority to doggedly hang on to convictions all the more concerning. History offers examples indicative of a defensive mindset. An apparent lack of enthusiasm among officials for a CCRC to be introduced so frustrated Sir Thomas Thorp, the former High Court judge whose research eventually led to its formation, that in 2008 he described the Justice Ministry as “regrettably turf conscious”.
Successive National justice ministers responded to efforts to bring Pora’s wrongful convictions to light with stock defensive statements: “The New Zealand justice system has a highly regarded, robust appeal process for dealing with people who consider they have been wrongly convicted.” That system failed Pora for two decades and Hall for nearly four. Eventually, the Labour Government brought the CCRC into being.
Is the glacial process of attitude changes societal or generational? In the wake of the Hall miscarriage, Solicitor-General Una Jagose has reminded crown lawyers they “must be officers of justice as well as officers of the court”, and “when they recognise a problem, they need the authority and the support to act on it”.
How that plays out remains to be seen, because they do not have investigative powers and the processes they operate under are not, in general, set up to be proactive. A spokesperson for the Crown Law Office, the government department that oversees criminal prosecutions, said it would depend on the specific circumstances, and action was likely to be taken in the context of litigation.
It is good that, however belatedly, Crown Law recognised a miscarriage of justice had occurred, and supported the application that last year led to Hall’s convictions being quashed. But it did so in response to an application that took four years to pull together. In 2018, and again in 2020, investigative journalist Mike Wesley-Smith had provided the crown with the detailed evidence now accepted, only for it to be ignored. An independent inquiry ordered by the Solicitor-General cleared Crown Law of wrongdoing, but also found it gave Wesley-Smith’s correspondence only “a cursory” look. It may not even have been that. Crown Law later told another journalist it had no record of receiving anything from Wesley-Smith.
Whether Hall’s and Pora’s cases suffered from bad process or bad faith, there is reason enough not to leap to the lazy assumption such miscarriages would not happen now.
The investigative flaws in Pora’s case occurred in the 1990s, but disturbing instances arose quite recently during efforts to clear his name. One roadblock was the refusal, citing privacy issues, to release information to him from his case file. Pora sued over that and won. It transpired records of payments made to several crown witnesses who gave false but incriminating evidence were missing from the police master file. There has been no inquiry into why they weren’t there.
Both Hall (autism spectrum disorder) and Pora (fetal alcohol syndrome disorder) had disabilities that were only later diagnosed but contributed to the prosecution case against them. Pora would still be in prison had former police detective Tim McKinnel not taken an interest.
Hall’s family fought to clear his name for more than half of his lifetime. Even though his mother, Shirley Hall, sold the family home to help fund their campaign, there was not always sufficient money to take every step the system required. After such a battle, it is uncomfortable to realise Hall’s exoneration came about as much by chance as anything. It took Wesley-Smith researching a deep podcast (Grove Road) to become alarmed and, when he didn’t get a helpful response from justice officials, to bring together a team – including McKinnel – that could not be denied.
No wonder the Hall family are calling for a commission of inquiry.
Journalist Phil Taylor reported on the campaigns to prove the innocence of both Teina Pora and Alan Hall. He wrote on Hall for the Listener in May 2022.
