NZ POLITICS DAILY: The Politics of justice

What’s wrong with the justice system? There are elements of the justice system that do not appear to be working, judging by a flurry of recent controversies and stories. Many of these concerns relate to recent retrials and miscarriages of justice, and they are producing some debate about the health of the justice system and how it might be reformed.

Police under scrutiny
I critiqued the frontline of the justice and law enforcement system in an article for the Herald on Sunday – see: NZ Police are failing the public. In this, I put forward some of the problems with law enforcement (following on from my previous online column which asked Can we trust the Police?) The Herald on Sunday also dealt with the issue in its editorial, Police must earn public's trust.

A number of other recent stories about the police have raised concerns. Last night TVNZ’s 2-minute report revealed a less-than-responsive police – see: Death threats for turban wearing student, police say they can't help. Similarly, see yesterday’s column by Mike Yardley, about “a worrying tendency by police to appear flat-footed and phlegmatic, when presented with the evidence of criminal culprits by enterprising victims” – see: Social media should not usurp police response.

The police have also been criticised for some of their investigation methods – see David Fisher’s Police given personal information without search warrants and the response of blogger Martyn Bradbury: Secret Police investigations of NZers using spineless corporations. 

Other suspect methods used by police in the recent past are outlined in John Weekes’ article, Drug lord Max Beckham: Police illegally intercepted phone calls with lawyer. And Hawkes Bay Today reports on a recent death by police taser – see: Man dies while being arrested in Napier - taser, pepper-spray and dogs. These two items receive scathing responses from blogger No Right Turn – see: NZ police violated legal privilege and Police aggression kills.

Even the police investigation of the 1080 threats is being criticised by the Labour Party, which says “Police have taken too long finding the person responsible for threatening to contaminate infant formula with 1080 poison” – see Jo Moir’s 1080 threat: Labour slams police investigation speed. Are such criticisms fair? Not according to David Farrar – see: Labour’s O’Connor says Police are crap. But another report, from TVNZ, quotes a police insider as suggesting the police didn’t initially give the issue priority – see: Police failed to take 1080 threat 'seriously' – source.

Some recent official reports from the Independent Police Conduct Authority are also critical. One, about deaths in custody, says “Police do not always meet the level of care required when holding people in police cells” – see TVNZ’s Cops lack skills, training in dealing with at-risk people – police watchdog. Another critcises the police in terms of how they dealt with a sexual abuse complaint – see the Herald’s Police failed in sex assault complaint against hospital security guard – IPCA. 

The Office of the Auditor General continues to monitor the police’s implementation of the recommendations of the 2007 Bazley Inquiry, and last week gave a report to Parliament with the message that “Police need to pick up the pace in their management of adult sexual assault cases and police misconduct” – see Demelza Leslie’s Speed needed in police reform, MPs told. 

But what about the police’s core role in resolving crime? The annual crime stats report is out, with details that crime is down, but the resolution of reported crime is also down – see Adriana Weber’s Crime resolution rate drops. In this item, criminologist Greg Newbold complains that “not enough is being done to solve petty crimes like burglary or theft”, explaining that "Resolution rates depend very much on what sort of crimes are being reported, so if you get a lot of smaller crimes, petty crimes and burglaries reported, the police tend not to follow them up because they're too difficult”.

For an interesting discussion of the latest stats, see today’s Herald editorial, Drop in crime figures only part of story.

The police are even being criticised for not keeping their cars clean enough – see Rodney Hide’s column, Our cops should come clean. He says, “New Zealand police cars are a disgrace. They are too often dirty and scruffy. They send the message that the police don't care and lack pride”. 

The Landmark Teina Pora verdict

Perhaps the greatest recent indictment of the police is the Privy Council’s decision to quash the conviction of Teina Pora. After the verdict, Duncan Garner declared “This is a shameful day for our justice system and the NZ Police” – see: Teina Pora retrial pointless. He says, “There has been disquiet for years among top police officers about this conviction, but they all stayed silent. It’s a disgrace.  Shame on them. They’re a club who shut up shop. No one wanted to break the rules of the club” 

In another column, Garner states that “Pora was thrown under a bus by shabby and incompetent policework, an initial defence team that failed him and a justice system desperate for a culprit at any cost” – see: Teina Pora needs a payout, not a retrial. Similarly, see No Right Turn’s We need to talk about our police. 

John Campbell broadcast an interesting 5-minute item asking Should Teina Pora receive compensation? But perhaps the must-read item is by the two TV3 journalists who pursued Pora’s story for many years – see Paula Penfold and Eugene Bingham’s Teina Pora’s Long Road to Freedom. 

Penfold and Bingham relay how one of Malcolm Rewa’s early victim’s went to the Police with identifying information about her attacker, which apparently produced no effective police action: “She told the police who he was, she even supplied them with his name. It took six months for the police to visit him, to ask about the attack, which he of course denied, saying he was on the booze that night with a mate. The police didn’t even follow up with that mate to verify the story. The point being, if police had properly investigated Malcolm Rewa from the outset – a named offender with a sex attack record - all those women who came after wouldn’t have been raped. Including Susan Burdett. And then the Teina Pora case would never have happened”.

Penfold and Bingham are also scathing about police obstruction towards their investigation, saying that “the lengths some officers went to in deliberately failing to answer our questions was extraordinary”. In general, they complain about “how difficult authorities make it to investigate cases of miscarriage of justice”. 

Now that Pora’s is deemed innocent, there is pressure on the police to re-open the investigation into who killed Susan Burdett, but they won’t – see Aimee Gulliver’s Police won't reopen Susan Burdett case despite quashed Teina Pora conviction. 

This police inaction is strongly questioned by TV3’s 2-minute item in which Brook Sabin is stonewalled by the Police Commissioner – see: Police: Burdett case can't reopen without new evidence. Sabin concludes: “So while one miscarriage of justice has been dealt with and Mr Pora has been freed, another injustice remains – no one has been held accountable for Ms Burdett's murder.  It appears police have given up trying to find out who was responsible”.

Compensation for Pora
The injustice against Teina Pora means that the calls for compensation are loud. For instance, the Dominion Post editorialises that a $2.1 million payout “is the absolute minimum that he should be paid, both in law and in justice” – see: Pora deserves a big payout. The editorial complains that “this Government in particular has a questionable record over compensation issues”.

The Government itself is stressing that the compensation could take a while to decide – see Aimee Gulliver and Kate Kenny’s 'Long process' to seek compensation for Teina Pora.

Law professor, Andrew Geddis discusses the issue of compensation and also suggests that “if there's any justice in the world”, Pora should also “get a formal statement from the Crown that he was innocent of the accusations against him” – see: Why having no retrial for Teina Pora matters.

But lawyer and blogger Graeme Edgeler says that Pora’s entitlement to compensation is less clear cut than is being assumed because, despite what various commentators and even the Minister of Justice have been saying, the Cabinet Manual does not actually include compensation guidelines for cases that have gone through the Privy Council. Pora could therefore be turned down – see: Compensation for Teina Pora?

Other botched cases
David Bain’s pursuit of compensation continues, with the Government announcing a new judge will examine whether a payment should be made – see Nicholas Jones’ Oz judge to head new Bain inquiry.

The relevant figures and issues are discussed in Brian Rudman’s Bain compo - no magic answer, so try humanity and The Press’ Taxpayers get big bill for Bain compo case. 

Problems with the initial prosecution of Mark Lundy also caused a retrial, but last week’s guilty verdict has blunted criticisms of the justice system. An editorial in The Press says, “The consensus from those who observed the seven-week trial seems to be that with the verdict justice has been done” – see: Verdict delivers justice in Lundy retrial.

Similarly, the Police Association has welcomed the guilty verdict, with president Greg O'Connor declaring, "We hope this will be the end of the criticism of the police and prosecution teams involved, and we hope that the family and officers can now move on with their lives” – see Gerard Counsell’s Lundy guilty: Police 'hope it provides some form of closure’. 

However not all are convinced by the Lundy verdict. Steve Braunias has penned a fascinating essay about his own experience with Lundy and why he still questions the verdict – see: Operation summer: My time with Lundy. 

The costs associated with the Lundy case have been huge – see Rob Kidd’s Mark Lundy's $5 million case. 

Time for justice reform?
With so many miscarriages of justice, or at least “unsafe convictions”, is there now a need for more significant reform of the justice system? After all, convictions have been quashed in the last three cases taken to the Privy Council. 

Many are calling for the establishment of an independent Criminal Cases Review Commission. Legal scholar Chris Gallavin has written a very good opinion piece on why “A criminal cases review panel would save taxpayers' money in the long run and restore faith in the criminal justice system” – see: Canterbury law expert calls for a NZ criminal cases review panel.

Two very strong newspaper editorials also back up the call – see the Herald’s Pora's ordeal shows review panel needed and the Dominion Post’s Reasonable doubt about the justice system. The Herald says that “the public is bound to wonder if something is seriously wrong in our prosecutions and conduct of trials”. 

The Dominion Post editorial is particularly strident in outlining why the current system doesn’t work, and why the Government needs to stop opposing reform. 

Unsurprisingly, a number of figures associated with controversial convictions are also backing reform – see Deidre Mussen’s John Barlow calls for justice-review body and Sophie Ryan and Kurt Bayer’s Malcolm Rewa faces 'very rare' trial after Teina Pora's murder convictions quashed. 

The most insightful and in-depth items about establishing an Independent Criminal Cases Review Commission are Gordon Campbell’s blog post, On the Privy Council’s Teina Pora decision, and Bruce Munro’s Otago Daily Times feature, Proving innocence. The latter reports on “the headquarters of Innocence Project New Zealand”. 

Justice modernisation

Much of the dissatisfaction with the justice system relates to how it treats women and Maori. For example, the Maori Party has recently responded to the Pora verdict by saying that Maori suffer from “institutional racism” within the system, and that an inquiry is necessary to “find out why Maori were treated differently” – see Radio New Zealand’s Maori Party calls for racism inquiry. 

In many ways the system is responding to such criticism. The police, in particular, are attempting to improve their relationship with Maori and Pasifika, and have introduced a new level of Maori inspectors into the force’s hierarchy – see Rosemary Rangitauira’s Police target change for Maori. The youth law advocacy group, Just Speak, have applauded the move. 

The police also appear to be increasingly outspoken and focused on combatting racism – see, for example, the Herald’s Top cop pleased to see kiwis standing up against racism. 

There are still significant gender imbalance issues within the wider justice system and part of the problem is the lack of female Queen's Counsels. According to one article, women make up 47 per cent of all practising lawyers, but only 18 per cent of QCs – see Alex Mason’s Call for more female QCs.

One high-flying female judge, Justice Lowell Goddard, has just been appointed to a major British judicial project – see Stuff’s Justice Lowell Goddard aims to bring truth and justice to UK sex abuse inquiry. Justice Goddard says: "One of the most positive things about my appointment is that it reflects well on New Zealand and on the New Zealand judiciary”. 

Another judge with a global reputation for modernising the legal system has just died – see the Herald’s Judge Brown revolutionised youth justice. According to this article, “During his time as the first Principal Youth Court Judge, he was responsible for the overhaul of the system from its punitive state in 1989 to a restorative one that continues today”.  

Of course, not all modernisation is necessary a good thing, and today Richard Cornes of the University of Otago's Centre for Legal Issues makes a plea against aspects of the Judicature Modernisation Bill currently being considered by Parliament – see: Don't drop commitment to the rule of law. 

Money for justice
Some of the current failings and problems in the system simply come down to money. Cutbacks and “book balancing” cause all sorts of changes and today Andrea Vance reports on a major review of police stations, which is leading to some closures – see: Police shut 30 stations in effort to combat budget cuts.

The Government’s reduction in legal aid assistance, might also be a cause of a perceived decline in quality of defence cases – see Amy Maas’ Probe on 'incompetent defence lawyers'.

And two other law authorities are pleading poverty – see Aimee Gulliver’s Law Commission 'stretched to the limit' and Radio New Zealand’s Police conduct authority funding tight. 

The prison system, too, might be suffering from a lack of resources, causing prisons to become more dangerous places – see Kurt Bayer’s Prison beatings a daily danger. For more on prison violence, see Jarrod Gilbert’s The Death of a Prisoner – the beginning or the end of violence?

Finally – in this climate of questioning the justice system, a new TV series is likely to be very successful. TVNZ’s I Am Innocent currently screens on Wednesday nights, and can be viewed on demand. The series is explained by Simon Day in his article, Paying the price of innocence. You can find out more on the I Am Innocent Facebook page.