A Worthy Private Initiative

Bad Smells

A private foundation is being set up to investigate and review criminal convictions which are "unsafe"--that is, potentially unsound.  Usually, such convictions have been upheld in successive courts of appeal or higher courts.  But the smell remains.  Something is not right.

Unfortunately these things happen.  We believe, however, that in the NZ justice system there could well be an institutional bias towards upholding convictions.  The NZ legal fraternity is small.  The possibilities of "group think" in New Zealand where most of the participants all went to the same few schools are high. Magistrates and justices often know each other; they have often served  as colleagues in one capacity or another.  To overturn the decisions of one court may mean that tomorrow the same judge or judges will be sitting in judgement upon moi.  To overtune a case with consequent embarrassment to a judge or magistrate may have consequences for one's career advancement.  After all, promotion depends upon the approbation of colleagues.  Easier to go along with the status quo.

The system's status-quo has resolutely refused a review system which is reasonably independent and beyond the courts or the Ministry of Justice--despite high profile precedents in the UK, the US and other countries.  Now, the New Zealand Public Interest Project has been set up.  We believe this is a sound move.  Jarrod Gilbert explains the background.

Wrongful Convictions Blight on Law

Jarrod Gilbert
NZ Herald

Sometime before I met Michael October in a small cafe in the seaside community of Sumner, he had taken part in the hostage drama at Christchurch Men's Prison.  The planning was meticulous. It would require timing and confidence. There was so much that could go wrong. There were 89 men in the East Wing in the spring of 1997, many with violent histories, and how they might react when the tide of the jail turned was unknown. There was also the matter of making the explosives.

The operation began straight after meal parade, when the prisoners were about to be locked in their cells. One of the conspirators told the officer in charge that there was an urgent matter that needed addressing. In the upstairs office the prisoner produced a stick of gelignite connected to a remote detonation device.  The other guards were rounded up: five men and one woman in total. Their keys and radios were taken from them with threats of violence. The wing was now under the control of the inmates.

The five hostage-takers told their captives they would be safe. But the guards knew they could not guarantee that. One of them described it as the most frightening experience of his life.  Each man had a job; Michael October held the keys and was charged with keeping order among the prisoners and specifically protecting the female guard. If the prisoners ran amok it was thought she would be vulnerable.

Some skinheads began to destroy whatever could be destroyed. There were also fights as prisoners took the opportunity to solve disputes within the wing. The situation was tense and volatile. Around a dozen prisoners took up the offer of being locked in their cells. Most simply kept to themselves but all were mindful of the threat that existed - nobody but the hostage-takers knew the explosives were fake. They were a mix of candle wax, rubber ends from crutches, cardboard, batteries and prison ingenuity.

Amid all of this, relative order was maintained while negotiations occurred. The female guard was released around midnight and 26 hours after it began the hostage-takers locked all of the prisoners in their cells, walked out of the wing and surrendered. For just over a day, Michael October had a sense of empowerment and control, things he had not felt since being convicted of a brutal rape and murder - a crime he did not commit. The hostage situation was devised to highlight his and Rex Haig's cases. Nobody was listening.

When I met Michael, I was doing some research for The Investigator television series. I found it interesting that despite so much physical evidence at the scene of the crime, not a skerrick of it belonged to October, and the limited circumstantial evidence didn't stack up. I spoke with Nigel Hampton QC who had dealings with October and was convinced of his innocence. But if he didn't do it, who did? Two men have admitted their guilt, one of whom joined the hostage drama to support the innocent man. He has told me about the crime and says he and his co-offender had never seen Michael October before they met in prison.

I decided to set up a team of people to advance October's case and I sat down with Tim McKinnel, who led the charge of investigating the conviction of Teina Pora, for advice. A couple of drinks later and we were formulating what would become the New Zealand Public Interest Project (NZPIP).

The NZ justice system is not overtly corrupt--although examples of "bent" police officers surface from time to time.  But that does not mean there is no "soft corruption" in the system--particularly a kind of institutional bias, where the legal and judicial fraternity are protecting their joint reputations.  The last government decision on this matter was pronounced by Judith Collins as Minister of Justice, alleging that there was no need for an independent judicial review panel because there were “robust safeguards against miscarriages of justice through the appeals process and the royal prerogative of mercy”.

These safeguards are so "robust" that miscarriages of justice have demonstrably occurred and been ignored by the appeals process and the justice system's status quo.  In our view there have been far too many of them in such a small country to justify such complacency.  

A collection of prominent scholars, scientists and legal experts, NZPIP launches on Saturday and will, among other things, investigate potential miscarriages of justice. It is loosely based on successful state-run criminal case review panels in England and Scotland. Sir Thomas Thorp was perhaps the first to call for such a body here after an investigation in the early 2000s but successive governments have ignored his and all other calls since.

A body like NZPIP may act as a valve against situations like the hostage drama at Christchurch Prison, but it is much more than that. It will help in the not-too-small matter of upholding the integrity of our criminal justice system. Mistakes will always be made but we must seek to rectify them. Michael October is not a rapist and murderer but he carries that stigma with him every day of his life.

• For more information see nzpip.nz

What a slap in the face for institutional bias and the soft-corruption of the judicial system that experts and authorities in their private capacity are forced to take this move.  Good on them.  But they should never have had to do so.  Shame on our justice system and courts.  Shame on Judith Collins.