The curse of injustice
Beneath every case of injustice, every claim of the system having gone wrong, lie deep wounds and scars. Eugene Bingham and Paula Penfold report.
Like so much else in this world, you can try to boil down the problem of injustice to numbers. Five million: the sum paid out in compensation over the past 20 years to wrongly imprisoned people.
Twenty: an estimate by the late Sir Thomas Thorp of the number of innocent people in jail when he researched miscarriages of justice a decade ago.
One: the number of innocent people to be freed for Justice Minister Andrew Little to consider that setting up a criminal cases review system was all worth it.
But numbers tell only a fraction of the story.
Because beneath every case of injustice, every rightful claim of the justice system having gone wrong, are deep wounds and scars.
‘‘These injustices have tentacles that stretch well beyond the people directly affected,’’ says Tim McKinnel, a private investigator who knows all about these cases.
‘‘And people don’t understand how wide-ranging those impacts are – psychologically, financially, and in terms of relationships. It’s defining for families and communities – for decades.’’
And that’s what The District, a podcast from the Stuff Circuit team, sets out to examine.
It’s a story about injustice and what happens when investigations go off the rails, about how gossip and whispered accusations take seed in communities; but mostly it’s a story about people – people who are trying to get on with their lives, but can’t.
‘‘These injustices have tentacles that stretch well beyond the people directly affected.’’ Investigator Tim McKinnel
CASES OF INJUSTICE
In the past two decades in particular, cases of injustice have frequently had light shone upon them: the wrongful conviction of Teina Pora, whose case McKinnel stepped in to fix; the imprisonment of David Dougherty for sex offences, despite his innocence; and numerous others whose names are synonymous with claims of a miscarriage – Scott Watson, David Bain, Rex Haig, and Michael October, for starters.
In each case, so much gets said and debated about the merits of the case, the ins and outs of the prosecution and defence, the points of contention.
But as McKinnel says, behind the stack of legal papers and court hearings, there are real people, and not just the person who ended up in handcuffs.
‘‘Teina was directly affected in terms of growing up in prison and what he hasn’t learnt about life and conducting himself as an adult in wider society,’’ McKinnel says of the 21 years Pora spent behind bars for the murder of Susan Burdett until his convictions were overturned.
‘‘But I don’t think people understand there are two other generations that have been impacted as well – his daughter and grandson. And then there’s the wider family who had to deal with what happened. And then you have the Burdett family, her son, and friends who had to live with it and then relive it.’’
"THOSE RIPPLES NEVER END"
Lawyer Nigel Hampton, QC, has been a vocal critic of the system’s ability to deal with miscarriages. But though he is steeped in the law, he has never lost sight of the human toll.
And so he was caught with a bit of emotion when he opened The Weekend Press of November 24 and saw a memorial notice that also stood as a tribute to those engaged in the fight for justice for Rex Haig.
‘‘It is hard to believe one year has passed since your untimely death, you deserved so much better,’’ read the notice, placed by family members.
Haig was found guilty of the 1994 murder of a fisherman, but the conviction was eventually quashed in 2006 when serious doubt was cast on the reliability of the evidence against him.
‘‘The calibre of your friends, family and supporters is testament to the special person you were,’’ says the notice.
‘‘You will be remembered for your clever wit, tenacity, admirable work ethic, creativity, respectful kind nature and being a loving father and grandfather. All of this with a huge cloud hanging over you which was on track to be lifted thanks to the efforts of Mike White, Jonathan Eaton, Mike Kalaugher, Nigel Hampton, Steve Ferguson, yourself and the late Bryan Rowe.’’
Hampton was humbled to be mentioned and notes his initial involvement was due to extraordinary circumstances.
‘‘I only got involved with Rex because he took the extreme step of taking prison officers hostage,’’ Hampton says of the 1997 incident when Haig sought
to force a review of his case.
‘‘To have to take such an extreme step like that to draw attention to your case is woeful.’’
And of course it meant the circle of people affected by the miscarriage only got wider, says Hampton.
‘‘Those ripples never end. Those prison officers were rightly terrified, then there would have been the effects on their families.’’
THE JAILING OF PETER ELLIS
Hampton says it was another case, almost 30 years ago, that first brought home to him the gut-kicking unfairness of injustice – the jailing of Peter Ellis, over the Christchurch Civic Creche case.
Ellis was found guilty in 1993 of sexual offending against children at the childcare facility where he worked, but has always maintained his innocence. His case has exhausted legal appeals, but continues to attract highprofile supporters who have campaigned on his behalf even since his release from prison in 2000.
‘‘In Peter Ellis’ case, of course, there was no crime in the first place – not only was an innocent person convicted, he was convicted of crimes that didn’t exist,’’ Hampton says.
In part, it was being haunted by what had happened with the Ellis case – how it became ensnared in the justice system, churning around and around without end – that prompted him, in 2015, to join others in setting up the NZ Public Interest Project (NZPIP), an organisation to help deal with miscarriages of justice.
The appellant system did not have the ability to stand back and examine a case once it had been dealt with by the courts. And the Royal Prerogative of Mercy process was too enmeshed in the system itself.
But resolving these cases is hard, slow work. And NZPIP relies on the work of volunteers scrambling to find the time, resources and funding to properly explore potential injustices.
And so it can be hard to manage the expectations of people who come forward, desperate for help. Because hope for people, whose hopes in the system have been crushed, is extremely fragile. ‘‘I feel it quite acutely,’’ says Hampton.
DESPERATION AND DESPAIR
The dashing of hopes, and the seeming futility of pleading with ‘‘the system’’ is a theme of The District as it examines what happens to people caught up in a fight against injustice.
It can lead to desperation and despair.
McKinnel says these feelings are exacerbated by institutions’ inability to admit when they’ve made a mistake and to address the problems.
‘‘And if you’re not prepared to do that, how do you improve?’’ he says.
In the case of Teina Pora, there has been ‘‘no analysis or review of what happened – there’s just been a collective shrug of the shoulders and we move on’’.
The police became entrenched in their view for a variety of reasons, including an inherent loyalty to the organisation. ‘‘In Teina’s case, I make an argument that when you step back and look at what happened, it was pretty clear, particularly once it was established he had FASD (foetal alcohol spectrum disorder). But not only did the police object to that evidence, they set about trying to undermine it.’’
Police declined to be interviewed for The District .At the time Pora was awarded compensation, though, Acting Commissioner Glenn Dunbier said police acknowledged there were deficiencies in the original investigation, though it was carried out in good faith.
‘‘Police staff strive to do their very best in every matter which is presented to them, particularly with major investigations such as this,’’ Dunbier said.
‘‘It is enshrined in modern investigative practice to ensure that we carry out thorough, robust and professional inquiries which meet the high standards rightly expected by the courts, victims, offenders and the public.’’
A POISONING EFFECT
McKinnel says the Criminal Cases Review Commission proposed by the Government (legislation is before Parliament’s justice select committee) will help deal not only with individual cases but wider, systemic issues – for instance, the use of jailhouse witnesses in prosecutions.
‘‘And that is perhaps where the greatest impact will be had.’’
Hampton hopes the commission will make a difference too – because the stakes are high.
When cases of miscarriage are uncovered, or even when there is an ‘‘aura’’ of a miscarriage, there is a poisoning effect.
‘‘It’s a natural by-product, and those ripples spread out and widen with a belief the justice system has gone wrong and isn’t to be trusted, and that has a particularly corrosive effect,’’ he says.
And when those feelings take hold in certain communities and parts of society – particularly among Ma¯ ori, who Hampton believe are disproportionately affected – that becomes extremely problematic for the whole country. ‘‘It’s wider than just the justice system and individual cases.’’
And that’s the problem with injustice – its impact never ends with one person, one case.
Where to go
The District podcast can be found on Spotify, iTunes, Stitcher, Whooshkaa podcast page and RSS.