After the three high-profile acquittals in murder trials this past week, I was feeling rather good about our justice system.
I am of the persuasion that it is far better for 10 guilty persons to go free after a trial than a single innocent one be found guilty and rot in prison as a result. This is the foundation upon which our entire “innocent until proven guilty” justice system is built.
It is hard for a brown, uneducated man accused of murdering babies in a high-profile case to get a fair trial. Chris Kahui was vilified in the news media and on talkback radio after he was charged with murdering his baby sons. That a jury last week found him not guilty after deliberating for just 10 minutes was a cause for pride in our justice system, I felt. The fact that the very experienced Crown prosecutor Simon Moore publicly stated after the verdict that the jury had carefully followed the case and made up its own mind, which he accepted without demur, was something also to be proud of, I thought.
We also saw Murray Foreman found not guilty of the high-profile murder of Hawkes Bay farmer Jack Nicholas, and Zimbabwean immigrant George Gwaze acquitted of the alleged rape and murder of his 10-year-old niece, Charlene Makaza, after a defence case that argued she died from natural causes of AIDS.
In the Kahui case in particular, these were verdicts reached despite the baying for blood of the media and talkback mob. Even if they were wrong, they were all verdicts arrived at after the full due process of the law, and the law might have been expected to accept them. Even if they were wrong, better that a guilty person go free than an innocent one go to jail.
Just as it is hard to be acquitted in a high-profile case, it is also very hard in New Zealand for somebody who is innocent of any crime but is found guilty in a trial to have the resulting miscarriage of justice overturned. The Court of Appeal has long been reluctant to overturn any jury verdict, saying that it is for jurors to decide the facts.
I strongly believe that our police arrest the guilty person in almost every case that comes before the courts. But they do get it wrong from time to time. If we assumed that everyone arrested by the police was guilty as charged, we might as well do away with the courts and impose a tyranny. Our court system exists as much to protect the innocent as to convict the guilty, something our judges both know and uphold.
However, mistaken verdicts have tended only to be reversed if there was some technical fault in the trial or if incontrovertible evidence of innocence is provided, such as in the case of David Dougherty, wrongly found guilty of raping a 12-year-old girl who lived next door, finally freed on updated DNA evidence, which also proved that the multiple rapist Nicholas Reekie was the guilty man.
Other demonstrably innocent men have spent years in jail because of the appellate courts’ reluctance to reverse a jury decision. Arthur Thomas was framed by the police for the 1970 Crewe murders, but was only freed when a politician, Sir Robert Muldoon, intervened. Peter Ellis served the full non-parole term imposed on him in 1993 for allegedly abusing children at the Christchurch Civic Creche, crimes that never even happened, and which have long since been shown as the fantasies of some parents and social workers. Because there was no crime, there was no DNA to “prove” someone else did it. The “justice” system continues to turn its infamous blindfold to him.
But if there was one principle of our system I thought was sacrosanct, it was the one commonly known as “double jeopardy.” It means you cannot be tried twice for the same offence, if you are acquitted at the end of a trial. This fundamental principle of our common law justice system was created centuries ago in England and was designed to stop somebody being repeatedly tried for the same offence until finally the state got the guilty verdict it desired.
As far as I know, there has never been a case in New Zealand where the Crown has sought a new trial of somebody who has been found not guilty by a jury.
Until now. The Solicitor General, David Collins, has announced tonight that he is considering asking the Court of Appeal for a new murder trial for George Gwaze. He said he could not go into details but said he could “foreshadow the possibility of a retrial”.
This is a disturbing development indeed. Whether Mr Gwaze is guilty or not, he has been found not guilty by a jury. His defence was that there was not even a crime, but a natural death. The jury accepted this.
If the Court of Appeal refuses to intervene in case after case even in such palpably wrong jury decisions as Thomas and Ellis, one can only assume it will give the same short shrift to any Crown attempt to retry a man resoundingly found not guilty. Otherwise, it invites asking why even bother with a trial.
15 Comments
May 30, 2008 at 6:45 pm
Excuse my ignorance but if significant new evidence is discovered, a person can be re-tried can’t they?
The only thing that bugs me about the Kahui case is that whoever murdered those babies is still a free person and its quite possible they might do something similar again.
May 30, 2008 at 6:59 pm
Even if the Crown had a fair argument (which I doubt as the Evidence Act allowed what took place to happen and the evidence was properly caveated as hearsay), there is the rather important consideration that the other evidence didn’t stack up.
There’s only one circumstance in the Gwaze trial that a new trial could be justified – that the Crown abandons murder and sex abuse charges and seeks to try the Gwazes for failing to provide the necessities of life – they can’t currently do this as the acquittal for murder precludes lesser charges. However this option was available to the Crown originally so really they are SooL.
As for the Kahui case, my opinion is that it was a jury malfunction. Normally the case would have been strong enough to convict but one of the jurors was a doctor was expertise in neurology. All the other jurors would have deferred to his expertise on whether the medical evidence stacked up and once they heard it didn’t, they acquitted. What they should have done was to debate the other evidence and see if that was strong enough. After all sometimes medical experts can be just plain wrong as the Lisa Blakie trial demonstrated.
Excuse my ignorance but if significant new evidence is discovered, a person can be re-tried can’t they?
Not in New Zealand. There is legislation currently before Parliament to allow fresh evidence trials (as well as tainted acquittals) but when it’s passed, it won’t apply retrospectively.
May 30, 2008 at 9:14 pm
Couldn’t agree more – I see all three of these acquitals as cause for celebration, and do not see a single false guilty verdict as acceptable at all. Our system has long established checks and balances, and if we expect to live by the rule of law, then we should accept its outcome with good grace. If we want a populist approach to deciding who is guilty or innocent, then we should be building a Coliseum rather than upgrading Eden Park.
May 30, 2008 at 10:44 pm
better that a guilty person go free than an innocent one go to jail.
even better that a innocent person doesn’t get picked on by the police and a case stacked around that person with the blessings of Crown Law in attempt to convict based on evidence that are not the facts.
May 30, 2008 at 11:01 pm
We should indeed celebrate the verdicts, and at the same time be concerned about possible problems in investigations leading to prosecutions. These concerns have been well articulated by lawyer Barry Hart.
Another three week court case ended this week in an acquittal. The case was not high profile, and not a murder case, but the case is another shocking example of a prosecution that should never have happened – if there only had been a professional and thorough investigation.
A pilot was prosecuted for negligence after the crash of a Devon aircraft at Ohakea Airport. A full aircraft accident investigation was not even carried out. The prosecution case seemed to be based on the fact that in the absence of any other explanation, the crash must have occurred because the weather was bad, and the pilot must have been negligent to have been flying.
In a Hamilton hearing it was left to the defence to prove the defendant’s innocence. Not knowing why the plane crashed, but being certain that the pilot had acted at all times beyond criticism, they hired their own investigator.
Auckland Forensic Mechanical Engineer and aircraft accident investigator Andrew McGregor,
( http://www.prosolve.co.nz/ ) spent weeks on the same case that the prosecution investigator spent less than a day on. And proved that the crash was caused by a component fracture that had occurred in flight and before the inevitable crash on landing. Forensic science in real life that rivals anything ever shown on a TV who-dunnit. The defence case led by lawyer Brett Cooper, coupled with the evidence of Andrew McGregor was dynamite. Brilliant.
Scott Optican spoke some wise words this week: “Wanting to hold someone accountable doesn’t mean you should hold anyone accountable.”
Sometimes there are cases – such as the Peter Ellis case, the Gwaze case, and the Ohakea crash where there is not even a crime. None of the defendants in these cases deserved to have been put through the stress, the costs and the consequences of prosecution.
May 31, 2008 at 12:51 am
The Gwaze case was a prosecution that ought never to have occured.
It was an absolute farce to have a murder trial without first determining the cause of death.
And only now the Coroner is stepping up to the plate.
Makes you wonder about what motivates Crown Law and police these days.
May 31, 2008 at 9:20 am
> Excuse my ignorance but if significant new evidence is discovered, a person can be re-tried can’t they?
No, they can’t. There is a rule which prevents the Crown from re-prosecuting (for want of a better term). However, on points of law, the Crown can appeal. In the Gwaze case, the Crown sought to have the trial aborted on the grounds that hearsay evidence was admitted. The Judge turned down the Crown’s request. It is this decision which the Solicitor-General is considering challenging.
What I find interesting in this case is that a Crown witness, paediatrician Spencer Beasley, advised the police during their investigation that they should obtain the advice of an expert on Aids from South Africa. Police apparently did not accept this advice. However, the opinion of a South African expert, Heinz Rode, was proffered at trial via another party. Mr Rode did not testify, and it is his opinion which the Crown apparently wants to challenge. But it begs the question: why didn’t the Crown simply call Mr Rode, or a similarly qualified expert, as a witness? If the Soliticor-General does appeal to the Court of Appeal, I would expect the bench of the appeals court to ask this very question.
May 31, 2008 at 10:53 am
However, the opinion of a South African expert, Heinz Rode, was proffered at trial via another party. Mr Rode did not testify, and it is his opinion which the Crown apparently wants to challenge. But it begs the question: why didn’t the Crown simply call Mr Rode, or a similarly qualified expert, as a witness?
The story was that Mr Beasley after testifying, went overseas to a conference where he discussed the case with Heinz Rode. Realizing the impact of what he had been told, he informed the Crown who then informed the defence of the nature of this new evidence (it’s also noteworthy that Rode thought on the basis of what was said to him that the case was still one of sexual abuse but he had to discuss this with his colleagues).
Hereupon the Judge had several options. He could ignore the evidence, adjourn the trial for several weeks to get Mr Rode to testify, declare a mistrial or introduce the evidence as hearsay. The first three options would have involved considerable hardship to Mr Gwaze.
May 31, 2008 at 12:04 pm
Which highlights the stupidity of proceeding to trial without first medically establishing the cause of death.
May 31, 2008 at 1:51 pm
Peter,
My understanding is that Spencer Beasley advised the police during their investigation that they should seek expert advice. Indeed, George Gwaze’s lawyer, Mr Eaton, made the point during Gwaze’s trial that police had not sought such advice.
I note that in January 2007, Christchurch police were investigating the beliefs and sexual practices of African men. (See the report in the link provided.) Clearly, police also had time to investigate HIV and whether it was the cause of Charlene Makaza’s death. One can only speculate as to why they didn’t do so.
http://www.nzherald.co.nz/topic/story.cfm?c_id=124&objectid=10420250
May 31, 2008 at 2:25 pm
[...] as usual has a thoughtful post today on aspects of this situation, and the comments on the post are essentially constructive also. [...]
May 31, 2008 at 3:40 pm
Good post Poneke. I share your concerns over the Gwaze acquittal. It smacks of “sour grapes” from a prosecution which failed to prove, beyond reasonable doubt, that a crime had even been committed. Meantime the Gwaze family has suffered from “triple jeopardy” – the death of their adopted daughter, the ordeal of Gwaze’s trial, and the lasting (but naive) perception than many will hold that the police wouldn’t have charged him if he wasn’t guilty. It will make the Gwaze family’s integration into New Zealand doubly difficult.
June 2, 2008 at 2:18 am
Very well put. It was quite worrying to see people writing into the paper also arguing that jury trials are old fashioned. The implication is that the police should arrest the best available suspect, the system should conduct repeated trials on the same charge until the suspect is found guilty, then the suspect can go to jail and the rest of us can rest easy. Until we are the suspect.
I found the PM’s comments on the Kahui trial to be distasteful, possibly made for political gain. The parents are surely guilty of child neglect or abuse. Surely that could have been prosecuted or still could be?
And Mr Gwaze is not guilty as the jury has found him so. That should be the end of the matter.
June 2, 2008 at 12:09 pm
Mr Gwaze is not guity of the crime laid against him – but like the Kahui’s I wonder about whether charges of child neglect can be brought against the family.
From what I can see of the case was that they did not seek medical treatment for the child until it was too late.
With the advances in medicines there should be no reason why a child with HIV should die in this manner.
June 2, 2008 at 3:01 pm
With the Kahui case the older injuries the babies had indicate longer term abuse (not that they had been out of hospital that long) so someone in the house (apart from Kahui) could be charged with failing to provide the necessities of life couldn’t they? I am not of the “someone has to pay” camp but am worried that the person or people who hurt these babies could have other children in their care one day