New Parliamentary Justice Committee report on petition for Royal Commission on the Peter Ellis case, see below. (added 11/8/05)

I have worked with the police for some years as a Police Medical Officer. I respect the police and admire their willingness to work in environment that the vast majority of us would prefer not to think about, until we get into trouble and need their help. I have seen them work long hours, living with great stress which can and often does cause marital and family break up, or personal distress, and deal with stupid, drunk, drugged, obstreperous, and sometimes frankly dangerous people with a great deal of humour and humanity.

However there have been in New Zealand since I arrived here a number of high profile cases, four "murders" and one "sexual abuse" that have caused me to have grave misgivings about certain aspects of the justice system, from the very bottom, the foot-slogging policeman, to the very top, the court of Appeal and the Minister of Justice. New Zealand has experienced one particular high profile case, the Arthur Allan Thomas case, which predates my arrival here, that illustrated graphically the sort of institutional failings that have occurred and seem to continue to occur. I would have thought the experience of that case would have led New Zealanders to say "never again", but obviously memories are short, and these endemic shortcomings of the justice system have not changed.

The cases are these. That is not to say there haven't been others. These are the particular cases that concern me, and not just me, and have been the subject of critical enquiry by many people. As I say later, these cases refuse to lie down, nor should they be allowed to. Internet references are provided. Click on the number to be taken to the reference, use your back button to return to where you were.

David Tamihere was convicted in 1990 of the double murder of Heidi Paakonaan and Urban Hoglan. At the time of the trial no bodies had been found, and when the body of Urban Hoglan was found nearly a year later, it actually cast a good deal of doubt on some of the circumstantial evidence presented. The first thing that should have put us all on guard in connection with this case was the use of three "secret" prison informers, presenting hearsay evidence of supposed confessions overheard in prison. It is now well known that some of the most notorious miscarriages of justice overseas (Canada and USA) have involved the use of this sort of testimony, and in these jurisdictions such testimony is excluded from being used in a trial. What makes it even worse is that these witnesses were anonymous, to protect them from reprisals say the police, but in fact making it incredibly difficult for the defence to mount a robust cross examination or rebuttal. Since the trial, as we know, one of these witnesses has retracted his evidence. Use of these witnesses damns the fairness of the trial from the very start. All the other evidence presented was circumstantial, and we couldn't even be sure there had been a murder, though this certainly seemed the most likely event. We depended on such damning evidence as "he had staring eyes" or the watch Tamihere gave away was the same one as Urban Hoglan had on his wrist (which of course wasn't true, as it was found on the body) (1) (2) (9)

This case bears striking similarities to the Scott Watson case, a young couple missing, presumed murdered, no bodies, and entirely circumstantial evidence and secret jail-house narks procured a conviction, except in the Scott Watson case, two hairs that possibly linked him to a victim and in the David Tamihere case there is a history violent offending in the past, including the manslaughter of a young woman. Therefore it is unlikely, despite the suspect nature of this trial, that there is much public sympathy for his plight, and it is doubtful too that many would consider this trial a miscarriage of justice. But if we can judge the Scott Watson trial as a miscarriage, then this trial, in which many of the same dubious tactics were used, should be considered similarly.

This case has been controversial from the start, but with the advantage of hindsight, and the sterling work of some very clever and thorough research from a number of people, but particularly Lynley Hood, this conviction looks completely unsafe. I am not going to go through this case at all, some links are provided, and I have yet to read A City Possessed. He should be pardoned and compensated. (3) (4) (5) (6)

NEW I have now (14/2/05) read the truly exellent book A City Possessed. Rather than add my comments in to this already long web page, I have made a separate entry about this book. There are also a few further internet site references. Please click here to visit my update on this case.

This case is not quite so clear cut. The murderer was one of two people, David or his father, Robin. Many people who have examined the details of this case, most notably Joe Karam, have come to the conclusion that it was possible for Robin to have committed these murders, and then shot himself, leaving David alive. At any rate there is more than enough doubt about the evidence to demand a retrial. My personal feeling is that psychologically it makes much more sense that the father did the murders and then shot himself, see the Schlaepfer killings. (6A)

Another fascinating case, According the prosecution's own figures of timing phone calls etc, it appeared impossible for Mark to have committed this offence. Of all the evidence presented at the trial and reviewed by others since then, he just didn't have the time to do it. It appeared to be a physical impossibility to do what he was supposed to have done. So why did he get convicted, was it the forensic evidence? What do we make of the forensic evidence? . This, like the hairs in the Scott Watson case, seems to be a major blow for the defence, yet if Mark literally couldn't have physically done this murder, then by deduction, there is only one conclusion, the forensic evidence was flawed, I won't repeat all the arguments against this evidence, check on the internet sites, but there does in fact seem to be quite a lot of doubt about the quality of this evidence, and the expert who presented it was able to avoid having his unique and never previously used forensic methods expertly scrutinised and queried. It is impossible to escape the conclusion that Mark Lundy has been wrongfully imprisoned. (7).

This criminal case has considerable similarities to the David Tamihere case. However in the Tamihere case, any doubts about the methods of obtaining a prosecution would have been offset by the knowledge of his previous criminal convictions. This doesn't apply in the Watson case, where there was no such criminal history. However what does apply is the use of circumstantial evidence, the suppression and ignoring of evidence that might compromise the prosecution and secret prison narks. Another difference in this case is the possession of a single piece of what could be damning forensic evidence, the two hairs on the blanket, one of which was able to be DNA profiled to one of the supposed victims. However after the trial it comes to be known there are grave concerns about the quality of the ESR in-house proceedures, and in this particular case with the analysis of hair specimens taken from a hair brush, and the analysis of the hairs from the blanket done on the same work area, and only being discovered after analysis of hair samples from the brush. It's all very well to give evidence such as 1 in 68,000 chance this hair was from the victim, when it was from the victim anyway and only got there by carelessness during the investigation. Those statistics which sound so impressive to the jury and can be so important to the verdict, are then completely meaningless, in fact worse than meaningless, they are actually completely wrong. Scott Watson not only should never have been found guilty, he is almost certainly innocent. He should be freed, pardoned and compensated. (8)

I have signed the free Scott Watson petition - these were my remarks This (the Scott Watson case) is just one of several major cases that I have had grave doubts about for some years. (The Ellis case, Tamihere case and the Bain case - and now I would add the Lundy case ) There is an urgent need to make the appeal process less restrictive, to allow the questioning of debatable evidence, bias, unheard evidence etc. and allow the further questioning of "expert witnesses" if it can be shown that their evidence has not been interpreted correctly, is plainly wrong or misleading, or subject to possible contamination, or is likely to be biased, Additionally so-called prison "confessions" should not be admissible as evidence. Miscarriages of justice will continue to occur if such reprehensible prosecution practices (as illustrated in this case and the Ellis case particularly) are not open to further scrutiny.

All these cases have very similar threads running through them:

All but one are murders, or presumed murders.

They are all high profile, with great pressure to secure a conviction

Two of the cases make use of (misuse of) prison informers. All prisoner informers are liars

Forensic evidence in three cases is likely to be wrong, either by contamination or by misinterpretation.

Forensic evidence in one other case was of a psychological kind, and was almost certainly biased and flawed.

The ignoring or deliberate concealing or withholding of evidence that would prove damaging to the prosecution case.

To misquote the Mikado, there seems to have been a readiness to "make the evidence fit the crime"

There seems to have been a disquieting acceptance of the use of circumstantial evidence and hearsay in all these cases.

All of these case have caused major disquiet in New Zealand about the shakiness of the evidence and convictions, leading to campaigns, books, articles and TV programmes - over many years, they refuse to lie down.

Further evidence and information has appeared after the trial in all these cases that puts grave doubt on the reliability of the original evidence.

The appeals process has failed all these cases. This is because the appeals process itself is flawed, just as in the Arthur Allan Thomas case.

It is my belief that there are five wronged men in New Zealand, and three murderers still at large. Four of these wronged men are still in jail, three with long sentences still to serve. The other has been released, but having been denied early release because of his continued insistence he is innocent.

The continuing occurrence of such dubiously achieved convictions brings the New Zealand justice system into disrepute. Although it would be very easy to blame the police for most of these failings, and there certainly is blame, I think the fact that these issues continue to recur is not related to the police alone, but the whole thread of justice, especially in high profile cases. After all it is the police's job to find a culprit and get a prosecution and then a conviction, and in all these cases this is what they have done, and mostly they would be congratulated in doing this. The police are only part of the prosecution, it also depends on the prosecution counsel, the judge, and the ability of the defence to have all the necessary information, and not be hamstrung by procedure. There is a need to consider all these cases again, but not just as individual cases, but as a pattern running through justice system ­ from the collection of evidence, to the way it is used, the subtle ways that the defence can be disadvantaged (from secret witnesses to discriminatory funding of expert witnesses), the over-reliance on hearsay and circumstantial evidence, the use of prison narks, and an uncritical acceptance of some doubtful expert testimony. You would think that the higher the profile of the case the more need there would be for the justice system to get it right but as you can read from this Canadian report (9), the opposite applies: the higher the profile, the more heinous the crime, the greater the likelihood of miscarriage of justice.

Then there is the problem of getting these cases reviewed adequately at the Court of Appeal, as we already know from what happened in the Arthur Allen Thomson case. An editorial in the New Zealand Law Journal reviews the Peter Ellis Case. (3) The first paragraph alone is worth reading. The Minister of Justice appears proud to say that he refuses to read Lynley Hood's book "A City Possessed". This is unfortunate as there are numerous lessons to be learned from the saga that are of value today, regardless of the issue of Ellis's guilt. On that issue alone, we are witnessing the kind of establishment obstinacy and public dissatisfaction that led in Britain to the Criminal Cases Review Commission. . The editorial ends with this comment: The position in a criminal appeal appears to be this. If you are an undoubted criminal caught red-handed but you can point to some defect in police procedure, the Court of Appeal will exercise a power it has arrogated to itself and which Parliament never intended it to have, to rule the evidence inadmissible and set you free. If on the other hand, you argue that you are innocent and have only been convicted because of misjudgements by the trial Judge and by the jury, the Court of Appeal will refuse to exercise the power Parliament intended it to have to revisit the conduct of the trial and the evidence available. This is not how to create confidence in the criminal justice system. Or other words: Some minor technicality will get you off, but if the whole process is flawed, you might as well whistle.


Of course, I an no legal expert, and analysing what exactly has gone wrong and how to correct it is beyond my competence. (11) But these are some of the things that seem to be happening.

The scope of challenging a conviction in the appeal court is just too limited, and some of these are considered in this list

Once a jury has given a guilty verdict, the appeal process is loath to review or challenge this, whatever further information is later available

That for new evidence to be considered, it has to be of such a degree that it just cannot be ignored, e.g. a confession, an irrefutable DNA analysis etc. Lesser degrees of bias, unfair proceedure, misinformation, failure to present information, or new information, even if a repeated or a major part of the case, whilst not proving someone innocent, but certainly making the conviction unsafe, just don't seem to be able to be dealt with.

Changes in standards of evidence acceptability or expert opinion, or new understanding of this type of evidence, (and this applies particularly to the Ellis case, where there must be grave doubt about the justice of the psychiatric opinion), do not seem to be able to be considered or accepted.

We will shortly be seeing the deliberations of the Supreme Court. I write elsewhere about this. I can't help thinking that a Canadian judge sitting alongside some of our judges might bring some useful expertise.

Whilst improving the system of appeal is urgently needed, for there will always be issues with court proceedings, wouldn't it be more efficient to get the trial system fair and just from the very start. The common factors related to miscarriages of justice are well known, so why do they keep recurring? Perhaps the adversarial court system that we have needs some moderating and more particularly the role of the police in being both investigator and prosecutor needs to be changed. After all, what we are seeking above everything else, is the truth of what happened, if we can. Making sure that every high profile crime gets a conviction is not the same as getting the truth. I would suggest that an independent Courts Office be established, who will be in overall charge of the prosecution, but who will also have a statutory duty to aid the defence by making sure all matters pertaining to the case are available to them. They should also be able to help during the trial by ensuring arbitration between defence and prosecution. They will ensure that the police collect and use their evidence fairly, and should be able to direct police if they have not pursued other lines of enquiry. They should also be able to make a judgement about the admissibility or not of evidence, and aid the presiding judge if needed. The bigger the case, the more important will be their role.

As a final comment, one can't help but notice the widespread criticism of the Ministry of Justice, and by implication Phil Goff and his predecessors, in not dealing with these matters adequately. They are causing widespread concern, and not just in ordinary members of the public like myself, but with the Law Society, in the Listener and other periodicals, on television, Lynley Hood, and members of Parliament. For instance, Lynley Hood writes in connection with a petition to appoint a Royal Commission into the creche case:
(This) was signed by 28 MPs (from every party in the House), two former prime ministers, four former cabinet ministers, 12 law professors, 10 QCs, a retired High Court judge, four psychology professors, several psychiatrists, scores of doctors, lawyers and teachers, academics from every discipline, child protection workers, mental health workers of every sort, and hundreds of New Zealanders from every walk of life. (14)

Mr Goff's intransigence and stonewalling about these concerns does him no credit at all.

(1) http://www.peterellis.org.nz/1996/1996- 0721_SundayStarTimes_AConvictAtAllCostsMentality.htm an article about the David Wayne Tamihere case (the Swedish Tourist case)

(2) http://wwwserver.law.wits.ac.za/humanrts/undocs/session68/view891.htm David Tamihere's case denied appeal to the United Nations Committee of Human Rights. (April 2000) This committeee said: The Committee refers to its jurisprudence that it cannot review facts and evidence evaluated by domestic courts unless it is manifest that the evaluation was arbitrary or amounted to a denial of justice. Again the problem seems to be that once evidence has been presented and accepted at the time, even quite major subsequent discrepencies will not be taken into consideration. This seems to be the problem with all these cases. The fact that the process has been flawed from the start seems to be impossible to overturn.

(3) http://www.menz.org.nz/News%20archive/nzljedfeb02.pdf this link will download a pdf to your computer , with a brief and cogent summary of the likely faults with the Peter Ellis conviction. This document is not the ramblings of some person with a bee in his bonnet but a closely and carefully reasoned editorial for the New Zealand Law Journal.

(4) http://www.menz.org.nz/News%20archive/cityposs.pdf A City Posessed, Lynley Hood. I have yet to read this book, this site will download a flyer. I will read the book, but there is now a great deal of information available on the internet, that reading this book is not an a priori requirement in considering that Peter Ellis's conviction was unsafe, and he should be pardoned. The book won the Montana Medal for non-fiction for 2002.

(5) http://www.homepages.paradise.net.nz/r.christie/ Critique of the Eichlbaum report and matters arising from the Peter Ellis convictions As it says , a critical review of the continued legal failures in this case, this time the government appointed judicial review. His remarks about a priori bias, such terms as "disclosure", "consistent with abuse", "denial", "recovered memory", "children don't lie" etc, set the tone for long, very detailed and thoroughly researched document.

(6) http://users.netaccess.co.nz/winston/ Peter Ellis electronic files archive. There is, for instance, a full transcript of the Ministry of Justice's chief legal advisor, Val Sim, answering the points raised in Lynely Hood's book, also full transcripts of children's evidence, including that witheld from the jury.

(6A) http://www.crime.co.nz/c-files.asp?ID=88 NZ Crime site with details of this case.

(7) http://www.lundytruth.co.nz/ A support site for Mark Lundy, maintained by friends and expert advisors.

(8) http://trudyandtom.tripod.com/homepage.htm Support site for Scott Watson with a good deal of information. .

(9) http://www.gov.mb.ca/justice/sophonow/jailhouse/index.html This site contains the report of an enquiry into a miscarriage of justice in Manitoba, Canada. The Honourable Peter Cory describes the background of this case, and he is highly critical of the police and prosecutors. This includes the misuse and abuse of interviews, not recording interviews, not disclosing pertinent evidence to the defence, failures of eye-witness identification methods, poor defence and he is scathing about the use of prison narks. This is the first paragraph:

Jailhouse informants comprise the most deceitful and deceptive group of witnesses known to frequent the courts. The more notorious the case, the greater the number of prospective informants. They rush to testify like vultures to rotting flesh or sharks to blood. They are smooth and convincing liars. Whether they seek favours from the authorities, attention or notoriety they are in every instance completely unreliable. It will be seen how frequently they have been a major factor in the conviction of innocent people and how much they tend to corrupt the administration of justice. Usually, their presence as witnesses signals the end of any hope of providing a fair trial

Do any of these comments, and I urge you to read the report, ring any bells with the New Zealand cases above? However, the convicted man, Thomas Sophonow, might be considered as lucky as compared with what has happened here in New Zealand. After a failed first trial, both retrials which found the defendant guilty had the conviction quashed on appeal. It was considered a fourth trial could not be held, and he was acquitted. However he had been in prison nearly four years, and he was fighting for exoneration. This was eventually achieved, and this Cory report was ordered, and he was awarded C$1,750,000 for non-pecunary damages and C$100,000 for loss of income. Peter Cory also makes the point that the greater the publicity and the more the notorious the crime, the more likely miscarriages of justice are to occur. I don't need to labour the point of comparison with what happens here.

(10) http://www.crime.co.nz/ - a site dedicated to the crime fan, with a good amount of detail about all these cases, except the David Tamihere one.

(11) http://www.listener.co.nz/printable,757.sm An article in the Listener from last year a about the need for a review of the appeals process, and the settingup of something along the line of the British Criminal Cases Review Commission set up in 1997 to re-examine suspected miscarriages of criminal justice. "It's necessary," he says. "Reviews shouldn't be done in-house the way they are here. Better to have something outside the justice system. If there are problems resulting in wrongful convictions, let's get them out."

(12) http://homepages.ihug.co.nz/~doccy/greatmysteries.html This site contains a page outline of three of the cases above. I don't know who "doc" is, but the accounts are succinct and well argued. There is also an overview of the Arthur Allen Thomas case.

(13) http://www.angelfire.com/theforce/nzpolice/framed.html An article about the three wrongfully imprisoned teenage girls. Some woeful mistakes were made.

(14) http://www.peterellis.org.nz/2004/2004-0415_ODT_Reflections.htm Lynley Hood's reply to a critique of her book.

(15) http://homepage.mac.com/j.monro/MiscarriageOfJustice/ReviewACityPossessed.html My own review of A City Possessed


Report on the Parliamentary Justice Committee on the petition for a Royal Commission on the Peter Ellis case

(Added 18/8/05) A Parliamentary review of the Peter Ellis case has just reported. (The full report can be found here.) The petition for a Royal Commission of Inquiry was declined. While this is very disappointing, the committee have admitted that there are many aspects of the Peter Ellis trial with which they are uncomfortable, and have made quite a number of recommendations because of these concerns. It is a shame that the logical conclusion of these concerns, the setting up of a Royal Commission of Inquiry, was not then forthcoming.

For instance they admit the public disquiet about the declining of legal aid for Peter Ellis's council. They make recommendations about this.

Concerns raised by the petitioners in regard to a) interviews with the children b) the "protected" status of expert witness testimony c) issues around the credibility of the childrens's evidence not presented to the jury were all acknowledged. Recommendations were to examine the operation of amendments to the Evidence Act of 1990 and 1999 in regard to children's evidence, and consider a more inquisitorial approach to criminal cases involving the alleged sexual abuse of children, as in the Family Court.

There seems to have been a lot of correspondence to Judith Ablett-Kerr QC which the committee have not received a reply from. For instance the Ministry of Justice suggested that if Peter Ellis was unhappy with the videotaped evidence he could have challenged this under section 231 of the Evidence Amendment Act 1989.

Issues related to the police investigation were examined, but the Committee seems to have been happy to accept Ministry assurances and thought this was a secondary issue and remote.

Issues related to criticisms of the Eichelbaum Inquiry were examined, I am not sure that I follow the logic of the Committees conclusion that the concerns related to the enquiry were because of the failure of the Inquiry to overturn the convictions, rather than the nature of the Inquiry itself. This is self-evidently not true.

In regard to future legal remedies, these are examined fully. A letter from Judith Ablett-Kerr QC was received later by the committee. In this she stated that she thought it would be correst to pursue leave to appeal to the Privy Council. There is a useful summary of the committees main concerns in regard to this case, which are important. There is a recommendation that the Attorney-General not oppose an application to appeal to the Privy Council, and that legal aid should be available.

At last, there is acknowledgement the New Zealand justice system is not presently capable of examing issues in regard to public concerns about miscarriages of justice through its present formal and restrictive legal framework. The Committee make the recommendation that a Criminal Cases Review Authority be established, along the lines, I imagine, of the similarly named organisation in the UK. Thank goodness. I hope that this recommendation is quickly taken aboard by all the political parties in New Zealand, and is supported wholly by the legal fraternity in New Zealand (perhaps nowadays in New Zealand I should say legal sorority). As such, this body would be able to examine historical cases, then this might allow people like Peter, and my other mentioned victims on this web site, to seek thorough review of their cases. There can never be such a thing as foolproof or absolute justice, but a Criminal Cases Review Authority will go a long way to improving justice in New Zealand and mitigating the closed shop justice system that presently exists here. However I would add that it would be better to get proper justice from the very start, and an independent Courts Office or prosecution service should also be considered along with any review of the appeals system or Criminal Case Review Authority.

There is a single minority opinion which disagrees with the findings of the Committee. He feels the Committees recommendations are inappropriate. He also points out with the passage of time, that two of the petitioners' main concerns have been partly addressed, with the introduction of a new Evidence bill, relating to statements of opinion by expert witnesses and children's evidence, and with the introduction of the Legal Service's amendment bill, in regard to legal aid.