Can wrongful convictions be avoided?

Wrongful convictions are a blight on any judicial system. Obviously they should be avoided as much as possible.

An often cited expression from English jurist Thomas Blackstone in Commentaries on the Laws of England (published in the 1760s) :

It is better that ten guilty persons escape than that one innocent suffer

The reality is that many innocent people suffer by being prosecuted for crimes they didn’t commit, even if they are eventually found not guilty.

And some suffer substantially more when wrongfully convicted. Two prominent cases in New Zealand that were eventually put as right as is possible were Arthur Allan Thomas and Teina Pora. Other people convicted controversially remain in prison.

One uncorrected apparent travesty of justice is the Peter Ellis case. This looks like a very unsafe verdict, but our judicial system and our politicians have been unwilling to address it adequately.

Once a person is convicted is our judicial system stacked too much against those who are innocent? The eventual clearing of Thomas and Pora were very difficult, lengthy and costly processes.

The Nation looked into all of this in Calls for new body to end wrongful convictions

It’s unrealistic to think that wrongful convictions can be avoided altogether but there must a better way to determine when mistakes have been made.

Ministry of Justice comments on royal of prerogative mercy process (RPM) 

The New Zealand RPM process operates within, and needs to be evaluated within, the context of our own particular legal system. What may work in another jurisdiction is not necessarily required or appropriate in New Zealand’s system.

The New Zealand RPM process provides a constitutional safeguard against miscarriages of justice. The process is effective – in cases such as David Dougherty and David Bain convictions have been referred back to the Courts and ultimately quashed. In fact, the referral rate in New Zealand is approximately 9.25 percent, which is higher than the Scottish CCRC (at 5.95 percent). 

The particular form of the RPM in New Zealand (exercised by the Governor-General on the advice of the Minister of Justice) reflects our constitutional arrangements. It respects the constitutional separation of powers in two important ways:

  • If a matter has been fully determined by the court system (including the exercise of appeal rights) the executive branch of Government will be reluctant to interfere as this would tend to compromise the finality of jury and judicial decisions and undermine the credibility of the criminal justice system.
  • However, if a new matter arises that was not able to be considered by the court process and it appears that a miscarriage of justice may have occurred, the Minister of Justice will normally recommends that the Governor-General refer the case back to the appeal courts. This is because the courts (not the Government) are responsible for deciding questions of criminal responsibility.

The ministry’s role is to assess applications and provide independent advice to the Minister of Justice. Accordingly the ministry cannot gather evidence or make an applicant’s case for them.

While it is true that the ministry does not have statutory powers to compel people to provide information, this has not inhibited our ability to gather information and the overall consideration of RPM applications. Police and other Government agencies routinely co-operate with requests for information and assistance, as do counsel for the applicant and the Crown, and the applicant’s previous lawyers. Applicants are able to apply for relevant information under criminal disclosure rules, the OIA or Privacy Act, and can ultimately have recourse to the courts.

Where necessary a senior lawyer may be engaged to interview witnesses, and expert commentary and analysis will also be sought if necessary.

We are not aware of any examples where a deserving applicant has been unable to challenge their conviction (as opposed to disagreeing with the outcome). Many of the problems that commentators allege appear to be theoretical.

Governor General: The Royal Prerogative of Mercy

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20 Comments

  1. Pickled Possum

     /  17th October 2016

    Teina Not Teino … just another wrong spelling dilemma in the lives of the wrongfully convicted

    Jails are Fulled up to the brim of “I didn’t do it” people which are different from the wrongfully convicted.
    In America there are groups like The Innocence Project who spend time and energy getting the wrongfully convicted out of jail.
    This is what has happened in USA
    https://en.wikipedia.org/wiki/List_of_wrongful_convictions_in_the_United_States

    Reply
    • Kitty Catkin

       /  17th October 2016

      Teino was, I imagine a typo-like Fulled for ‘full’ or ‘filled’. To full something is to wet it and shrink it, as one does with felt.

      Reply
    • Pickled Possum

       /  17th October 2016

      Evening Miss 😉
      Doesn’t matter the miss spell has been rectified.
      fulled full fill??? I am at a loss to what that may mean 😉

      Miss spelling peoples names… therefore changing who where what and why, and can have drastic consequences on people, families, whole countries and can lead to Obfuscation

      Obfuscation is the obscuring of intended meaning in communication, making the message confusing, willfully ambiguous, or harder to understand. … The name comes from Latin obfuscatio, from obfuscāre (“to darken”).

      Reply
  2. Alan Wilkinson

     /  17th October 2016

    Bureaucrats protecting their jobs and power. They would say that, wouldn’t they.

    Reply
  3. Pickled Possum

     /  17th October 2016

    The Innocence Project was established in the wake of a landmark study by the United States Department of Justice and the United States Senate, in conjunction with the Benjamin N. Cardozo School of Law, which found that incorrect identification by eyewitnesses was a factor in over 70% of wrongful convictions.
    I have just done a little experiment with people in my office and asked them to give a discription of what I was wearing.
    After being with me since 6.00am this morning NO ONE got it right.
    Yet people have been convicted on eye witness accounts.
    https://en.wikipedia.org/wiki/Innocence_Project

    Reply
    • Alan Wilkinson

       /  17th October 2016

      Yes, that is well established, Possum. Another big factor in many wrongful convictions is so-called experts giving evidence based on opinion or supposed experience rather than cold hard science. IMO that kind of evidence should not be allowable.

      Reply
      • Pickled Possum

         /  17th October 2016

        Yes quite right Alan
        The one that comes to mind is the young girl in Lower Hutt that died and an ‘expert’ from another country came to give a statement on how people die with Aids and that the childs death was in line with this.
        And how the sperm found on her undies was just a transfer from his to hers in the washing machine. I didn’t follow this to the end but the man was later recalled to court to face charges again.

        Reply
      • It’s not about science, it’s about matters of fact. Witnesses can be impeached when they present opinion as if it were fact, eg that a man or woman is a (legal) person.

        Reply
        • Kitty Catkin

           /  17th October 2016

          One useful piece of advice that I heard was ‘Don’t try to think in numbers.’

          In other words, if you are a witness, don’t try to work out how tall the person is in cm or what they weigh in kg, just think that they are much or not much taller or shorter than you and what their build is.

          I am quite good at remembering clothes, as it happens, but would be useless at remembering a car rego number in the right order, if at all.

          Reply
      • Kevin

         /  17th October 2016

        One of the biggest factors is false confessions. I believe most confessions are false and should not be allowed into evidence without corroboration.

        Reply
  4. Pickled Possum

     /  17th October 2016

    Here in NZ we had COSA = Casualties of Sexual Allegations
    MENZ … Masculinist Evolution New Zealand

    “With the complainant adamantly claiming that David Dougherty was her assailant, evidence which did not support Dougherty as the suspect was downplayed or ignored by the police”.
    http://menz.org.nz/cosa/newsletters/november-december-1998/

    Wrongful conviction and wrongful witness statements are still a big part of NZ Justice and the MSM Mad Snide Media … “We have the highest reported intimate partner violence in the world”. That statement is utter nonsense and the NZ Herald recently had to retract the same claim following our successful complaint to the Press Council. We understand the NZ Herald got the claim from the Ministry of Justice.”
    In fact we are not even registering in the first 28 countries!!
    http://menz.org.nz/2016/ministry-of-justice-spreads-more-misinformation/#more-16142

    Why are MOJ so adamant that we are worst than we are???
    Ok going home to mow lawns now, clean all this wrongfulness outta my head,
    otherwise it will/may become scrambled eggs again 🙂

    Reply
  5. Chuck Bird

     /  17th October 2016

    I have trouble finding your point Pete. Are you saying the current system for bring justice for those wrongfully convicted is satisfactory or not.

    Reply
    • I wasn’t really making a point of my own apart from saying that I didn’t think wrongful convictions could be avoided altogether. I was reporting on what The Nation had covered for discussion.

      I don’t think the current system for sorting out wrongful convictions is good enough, there’s room for a lot of improvement.

      It seems that our police and our judicial system are too resistant to overturning decisions they have made.

      Reply
      • Kitty Catkin

         /  17th October 2016

        They can never be eliminated altogether, I think. DNA is the wrongfully committed person’s best friend, of course. But that only works under some circumstances.

        Peter Ellis was a victim of his era-the age of hysteria about bizarre and Satanic practices. Is it even physically possible to push burning paper up someone’s bum ? I doubt it. And one claim was that he sodomised ? children one after the other-taking, I think, seconds for each, unobserved in a loo with no doors. It is interesting that the other prisoners didn’t give him the usual treatment given to kiddyfiddlers, not once.

        One young man supposedly remembered that Peter had done all those things to him, too-I heard this on National Radio. He and his mother were being interviewed. They didn’t have the sense to make sure that they told the same story, or even that their own stories were consistent-my heart-sinking feeling that Peter Ellis HAD done things was soon replaced by disbelief.again. The one thing that REALLY told against these two attention seekers was that the boy was only at the creche for a short time-before Peter Ellis was. And I seem to remember that the mother had made such a pest of herself that she was asked to remove her wee lad-something that they omitted to mention. A creche is a business, businesses don’t send customers away for no good reason.

        Reply
        • Alan Wilkinson

           /  17th October 2016

          Yes, the Ellis case was subverted by b.s. from “experts” and a feminist cabal.

          Reply
        • Kevin

           /  17th October 2016

          Ellis is as guilty as sin. Kids make up things, exaggerate etc, but beneath all the satanic cult and secret tunnels nonsense (that Ellis tried to take advantage of) the truth is that he molested at least one of the children. That’s why review after review Ellis was given the middle finger by the justice system.

          Reply
          • Alan Wilkinson

             /  17th October 2016

            And all the other staff who were initially accused and charged along with him?

            Reply
  6. Chuck Bird

     /  17th October 2016

    Your proof Kevin.

    Reply
    • Kevin

       /  18th October 2016

      1. Most confessions are made under duress which makes them unreliable.
      2. Even when not made under duress (e.g. person calls the cops and confesses) it’s more than likely that the person is innocent and is confessing due to a mental problem or other reason (yes, there are people who will “confess” to a murder they didn’t commit).
      3. In any case modern techniques render confessions next to useless. Why the need to take the word of someone who says “I killed `em!” when you have DNA evidence that cannot lie?

      Reply
  7. Chuck Bird

     /  18th October 2016

    Where is your proof about the Ellis Kevin. You are changing the topic to confessions.

    Reply

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