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Report from 2007 Innocence Project NZ Conference

Filed under: Law & Courts — JohnPotter @ 9:41 pm Mon 17th December 2007

The Innocence Project New Zealand Conference at Wellington’s Victoria University last week proved to be an extremely interesting and educational three days.

Organised by Matthew Gerrie & Maryanne Garry, the project is primarily a group of scientists, writers and lawyers who aim to investigate possible cases wrongful conviction in the New Zealand legal system, educate people working in the justice system, and conduct research aimed at making criminal investigations as effective and safe as possible. Sadly, there were no judges at this conference, and I was shocked that nobody from the Ministry of Justice bothered to attend.

Jacqueline McMurtrie, Associate Professor of Law at the University of Washington outlined The History of the Innocence Network: Its Influences and Successes. Since the first project was started in the USA, 210 men have been exonerated after DNA tests showed conclusively that they were innocent. Many of these men were on death row. Recent analysis of the first 200 cases show that they are often a result of systematic defects in the justice system which are potentially able to be reformed. The researchers found that the leading causes of wrongful convictions are:

  • eyewitness misidentification – by far the biggest problem
  • false confessions – an astonishing 25% of the innocent men were pressured into making some kind of admission
  • government mis-conduct
  • ineffective legal representation – one man was refused an appeal even though he complained that his lawyer was asleep during critical parts of the trial!
  • use of jailhouse informants – as happened in the Scott Watson murder conviction

Bernard Robertson, editor of the New Zealand Law Journal spoke about The Evidence Act 2006, particularly the implications regarding expert witnesses. The new criteria is one of “substantial helpfulness” – I guess it will take a few test cases to see how it works out in practice. One positive note is that the special provisions for registered psychologists have been abolished.

Eyewitness Identification

There have also been attempts to define protocols for identifying suspects – which these days are nearly always done with photo montages rather than lineups. Eyewitness Identification expert Prof. Neil Brewer from the School of Psychology at Flinders University, Adelaide showed us videos and photo lineups which demonstrated just how hard it is to identify a person, even when you know a crime is going to take place and are observing carefully. We also saw how easy it is to pick the wrong person!

If these photo montages are done correctly people who were NOT witnesses should be able to pick the suspect at a rate no greater than that of chance. Unfortunately some studies have shown that in as many as 25% of identification lineups, the photograph is manipulated to make the suspect obvious. In this regard the new law is not consistent with the latest research – for example it requires that the photographs should be substantially similar to the suspect, when it should specify that they be similar to the eyewitnesses description.

Some of the lawyers present were extremely concerned to hear that the police do not typically report when witnesses fail to identify a suspect, or when witnesses identify the wrong person, all of which affect the credibility and reliability of the positive identifications which do get presented in court.

Police interviews

Ross Grantham & Nina Westera from the NZ Police described the PEACE interviewing framework, which sounded pretty sensible to me. I think the biggest challenge will be getting front-line police to actually use it properly.

When the audience was asked if they would like to see all police interviews recorded on video there was almost overwhelming support, although John Rowan QC said he was concerned that many of his clients might be disadvantaged if video interviews were used in court. Many of them are not articulate, swear continuously, likely to be hostile towards police, and may look disreputable after arrest, all factors which could have a negative influence on a jury.

Criminal cases review commission

There was considerable discussion about the establishment of some kind of review authority to look at cases to investigate possible miscarriages of justice, as recommended by Justice Thorp last year. He estimated that there are approximately 20 falsely convicted men currently in New Zealand prisons, but others suggest the number may be 10 times higher. I asked Nandor Tanczos – the only politician to show up, what he thought the prospects were, and he replied that he was quite hopeful that progress could be made without it becoming a party political issue.

Felicity presented a paper Does gonorrhoea in pre-adolescent children always indicate sexual abuse? in which she revealed that possibly dozens of families (many from the Pacific Island community) have lost custody of children because DSAC doctors testify as expert witnesses that gonorrhoea is only caused by sexual transmission. A review of the literature shows that non-sexual transmission has been recognised a major problem in the past, and demonstrates yet again that DSAC evidence is ideologically based rather than scientific.

We learned lots about DNA evidence, fingerprinting, the Scott Watson double murder case, Peter Ellis, and problems with memory, but I haven’t time to write any more. The Innocence Project New Zealand will fill a much needed role in our society, and I feel privileged to have had the opportunity to meet so many interesting and dedicated professionals.

Media reports on this conference


  1. Wonderful to read the progress. For more information on another doubtful conviction visit

    Comment by Alastair — Mon 17th December 2007 @ 10:04 pm

  2. Actually, I won’t comment. I don’t need the negativity!

    Comment by David T — Mon 17th December 2007 @ 10:50 pm

  3. All right thinking people will agree that it is preferable for a few innocent people to go to prison, than for many guilty criminals to go free?

    In fact, since it now apparently possible to determine which people are predisposed to be criminals, (Men of course are known to be responsible for all violence) why do we not detain them in advance!

    And since prisons in NZ are so expensive to build and maintain, why do we not contract out the prison service to those under-developed nations which need to be brought out of their third world ignorance and introduced to the ways of the so-called enlightened nations.

    Comment by John Brett — Tue 18th December 2007 @ 8:20 am

  4. Only one politician turns up to the event. Well that explains the contempt Lairbore and Nanny National Wimps have and why they crawl to the judiciary, which enables corrupt judges to crush innocent victims. Both parties put justice well down the list of priorities (just below appalling child abuse stats) !! The trouble with our justice system is simple. We have never had a justice minister of any substance and moral character and not until we get a hard nose, no tricky business person who has experienced a travesty of justice to take control of these ludicrous judges can we expect the same old dysfunctional white elephant too change.Yeah right , what century will that be ? Anybody know if a female has ever been referred into criminal jurisdiction from the snake family court to face charges of perjury and contempt? No thought not!!

    I rest my f##king case the Ministry of Injustice is snake pit of vipers and a gravy train for the unscrupulous!

    Comment by dad4justice — Tue 18th December 2007 @ 9:33 am

  5. In point of fact John, though I accept the tongue in cheek post, the original quotation dating back to the Magna Carte is “Better that guilty people are srt free than one innocent person is convicted.” Hence the dictims that an accused person’s past is never revealed to a jury, and that the prosecution prove a case beyond reasonable doubt, not that the defence prove innocence.

    There is an excellent book on this subject by Kevin Ryan entitled “Justice without fear or favour” and subtitled “Defending the innocent, the not so innocent, and the downright guilty”

    the 2 chapters on Arthur Allan Thomas, make scary reading.

    I fully support Project innocence. We must never have “Closure” any conviction must always be open to scrutiny. This especially true with the advances in science to enable a fresh examination of forensic evidence.

    Comment by Alastair — Tue 18th December 2007 @ 10:08 am

  6. There is more detail of the first day’s presentations on Poneke’s Weblog here:

    Innocence Project seeks redress for wrongly jailed victims of NZ’s flawed “justice” system

    and here:
    Civic case child interviews “worse than the worst” questioning in similar American miscarriage of justice

    No, I don’t know who ‘Poneke’ really is, but it is good reporting.

    Comment by JohnP — Tue 18th December 2007 @ 9:55 pm

  7. Peter Ellis approaches the Legal Services agency.

    Project Innocence appear to be making some noise.

    Found on Stuff 21/12/07

    Doubts on child interviews may fuel appeal
    Fresh doubts about evidential interviews of children in the 1993 Peter Ellis sex abuse case will be used to try to secure legal aid funding for his appeal to the Privy Council.

    Ellis’ lawyer, Dunedin QC Judith Ablett Kerr, is seeking a meeting with new Justice Minister Annette King early in the new year in her bid to take his case to the London law lords in one of the last New Zealand appeals they are likely to hear.

    The right for New Zealanders to appeal to the Privy Council was abolished from January 1, 2004, with the establishment of the Supreme Court. But appeals can still be made in cases where the Court of Appeal made its final judgment or decision before that date.

    Research findings by Otago University academic Professor Harlene Hayne (crrct), head of the psychology department, suggest there is a “strong risk” that the evidence of children who told of sexual abuse by Ellis was contaminated by the way the interviews were carried out.

    She urged the courts to consider the case again.

    Ellis, convicted in 1993 of 13 charges of sexually abusing children while he was working at the Christchurch Civic Childcare Centre, has always protested his innocence and is fighting to clear his name.

    After Ellis’ High Court trial and two failed Appeals Court hearings, a ministerial inquiry conducted by former Chief Justice Sir Thomas Eichelbaum in 2000 found that the interviewing of children who gave evidence at trial was appropriate and hadn’t been undermined or contaminated by others.

    But after analysing hundreds of pages of verbatim transcripts of the pre-trial interviews with the very young children involved in the Christchurch creche case and comparing them with a very similar American case Prof Haynes has taken issue with Sir Thomas’ conclusions.

    She found the Christchurch children were each subjected to an average 400 questions by Social Welfare department specialist staff, compared with an average 200 questions in the American case.

    New Jersey daycare worker Kelly Michaels, aged 23 when she was arrested in 1985, was convicted of 115 counts of child sexual abuse and jailed for 47 years.

    But she was released on appeal after five years when the New Jersey Supreme Court ruled the children’s interviews were “highly improper” with interviewers using “coercive and unduly suggestive methods”.

    Prof Hayne told the recent Innocence Project conference in Wellington her analysis pointed to a “strong risk” the children’s evidence in the Ellis case was contaminated by the way the interviews were done.

    Mrs Ablett Kerr today hailed the Hayne report as a further positive move in Ellis’ bid to clear his name.

    “The research that they’ve done is excellent,” she said today. “It reinforces what it was that we were telling the Court of Appeal in 1999.”

    Mrs Ablett Kerr said Ellis’ appeal to the London law lords was stalled by a lack of funds.

    She and her small legal team have been working for Ellis on a pro bono basis and her office was “wall to wall with Ellis material”.

    Ellis, unfortunately did not have a financial backer such as Joe Karam, who financed David Bain’s successful appeal that led to the law lords quashing his 1995 convictions for murdering his parents, two sisters and a brother in Dunedin.

    “There is an awful lot of work involved in a petition to the Privy Council,” she said.

    “Here we are at the end of the day in a good strong position to take it (to London) and yet we don’t have the financial resources to put (the petition) into the kind of shape the Privy Council wants.”

    A parliamentary select committee in 2005 recommended the Attorney-General not oppose a Privy Council bid by Ellis.

    Mrs Ablett Kerr said Ellis could be eligible for legal aid to cover the substantial costs of getting a petition to London if the Solicitor-General made such a recommendation to the Attorney-General.

    She said her next step was to seek a meeting with the new Minister of Justice early in the new year.

    “I’d like to take Harlene Hayne’s new material to the minister and talk to her about how we can advance things. It’s in the interests of the integrity of the criminal justice system in this country,” Mrs Ablett Kerr said.

    “Something needs to be done.”

    She said she and Ellis had been buoyed by the latest revelations which reinforced their Appeal Court arguments, but frustrated that after eight years there had been no real progress.

    “If we were on the right track in 1999, why are we not there now in 2007?”

    Comment by Alastair — Fri 21st December 2007 @ 6:58 pm

  8. It is sad that new zealanders get dragged thru this process when they are innocent not just costing hundreds of thousands of dollars but an emtional toll on them and there families which i can not describe how painful it is when I read someone say better to have one innocent person in jail then many more crimanls out there i hope that one person is you and not my loved one.

    Comment by Sad — Wed 23rd January 2008 @ 3:54 pm

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