5 March 2015

Arthur Alan Thomas, David Bain and now Teina Pora are all high-profile New Zealand cases where murder convictions have been quashed after external review, after each had served long years in prison. (An overwhelming argument against the death penalty – but that was the subject of the blog three weeks ago!)

Thomas was pardoned after a Royal Commission; Bain was acquitted after a retrial ordered by the Privy Council, and Pora has just freed by the Privy Council. At the same time, there is continuing speculation about the reliability of other verdicts, notably that against Scott Watson.

Are these cases just very unfortunate coincidences – the type of case that could have happened anywhere – and the outcomes even more unfortunate? (After all, Britain pardoned Timothy Evans and Derek Bentley in recent years, long after they were both hanged for murders they did not commit, and doubts persist about the fairness of Ruth Ellis’ conviction.) Or, is there a more fundamental issue here, and if so, what is it, and how can it be resolved?

It is tempting to suggest that each of the Thomas, Bain and Pora cases benefitted from well organised campaigns to overturn their convictions, which in turn makes a mockery of the New Zealand justice system. I do not accept that argument, although I accept that the subsequent outcomes have severely adversely reflected upon the credibility of our justice system.

The role of the Police needs to be considered. It was well-established in the Thomas case that Police frustration at being unable to find enough evidence against their preferred suspect, Thomas, led to the infamous planting of the cartridge cases that convicted him. The Bain case raised questions about the way the Police focused almost exclusively on him from an early stage, and quickly ruled out other possibilities, including Robin Bain in particular. The Pora case raises serious questions about how statements from Pora were obtained.

So, on the face of it at least, Police practice needs to be improved to prevent similar miscarriages of justice in the future. But that is only part of it – there are always going to be situations analogous to these in cases of this type. That is not an attempt to justify them, but to acknowledge reality. A way to do that would be to require the Police – who are after all are criminal investigators, not prosecutors – to make available to the defence and the Court pre-trial all the evidence they have collected. Trial by one’s peers should be about all the relevant facts being tested, not just the presentation of those which put the case in the best possible light. The presumption of innocence till proven guilty needs to be reasserted as paramount (it has been weakened by the approach of various non-criminal inquiries of late) and the focus has to be on establishing all the facts and circumstances, ahead of the more narrow emphasis of securing a conviction at almost any cost.

All this also raises questions about the Court process itself. It too needs to become more about establishing and testing the facts than simply establishing guilt or innocence, although that is obviously a critical aspect of any trial process. In each of the Thomas, Bain, and Pora cases, had all the relevant facts been before the Court and the jury originally, convictions would have been most unlikely. Therefore, the question that needs to be asked (and resolved for the future) is why that did not happen. 

Trial by jury remains a fundamental component of our judicial system – but to work effectively, juries need to have all the facts before them, not just those the Police, the lawyers and even the Court think suit them best.

Thomas, Bain and now Pora are awful reminders of what happens when they do not.