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January 29 2008

Trial system in the dock
by Pat Booth

It seems like a spectre of the Thomas case.

Nearly 28 years after it grudgingly had forced on it the innocence of Arthur Thomas over the Crewe deaths, the New Zealand justice systemís investigation and trial processes are in the dock again.

And the jury is out.

Now, all at the one time, critics of at least four controversial verdicts could point to the report of the Thomas Royal Commission which accepted the validity of a nine-year campaign to free Thomas.

Back then its three high-profile members angrily cited police evidence against him as being "manufactured and other evidence withheld ... an unspeakable outrage" Ė the actual words of the commission.

It found that the campaigners were right, that verdicts of two trials and numerous appeals were wrong, he had been framed and unjustly jailed for those nine years.

The freeing of Arthur Thomas set a precedent. It prompted pledges from people in authority that the public could rest easy, that such a travesty would never be repeated.

In its way it also set a new benchmark for campaigners to fight apparently lost causes and theyíve certainly taken up that challenge Ė including the Sunday Star-Timesí Donna Chisholm on the David Dougherty case. (Freed after three years four months in jail when DNA evidence cleared him of rape at a second trial in 1997, he was later given $868,728 compensation.

Arthur Thomas got $950,000 in 1980 after nine years in jail.)

Other campaigns have followed, notably Joe Karam on the David Bain case, Keith Hunter on the Scott Watson Marlborough mystery, author Lynley Hood on the Peter Ellis creche case.

Add in the unfaltering belief of the Tamihere family that brother David was not the killer of the two Swedish tourists in the Coromandel nearly 20 years ago. They say, David, 37 when jailed, was simply the wrong man in the wrong place at the wrong time.

David Tamihereís fate is a clue to the possible long-term outcomes of suspect courtroom verdicts.

Look at the worrying aspects of key evidence against him Ė that a watch police claimed he took from the body of Urban Hoglin and gave to his son was still on the dead manís wrist when his skeleton was found near Whangamata 10 months after Tamihere was jailed. It was 70km away and over the ranges from the area where the Crown said the two victims had been killed.

The discovery there also contradicted the unlikely "jail confession" evidence of other prisoners wanting favours who claimed Tamihere had told them how he chopped up the bodies and disposed of them at sea.

There were people and tactics involved in the case against Tamihere that took me back to the Thomas case.

But once again, as it had done three times with Thomas before he was pardoned, the Court of Appeal saw no reason to reopen the case as I believe it should have.

David Tamihereís 10-year non-parole period ended in 2000. He has been refused parole five times.

His brother, former Cabinet minister John Tamihere, believes Davidís refusal to admit guilt counts against him.

For his part, David Tamihere apparently says he will stay in jail rather than admit to a crime "I didnít commit".

Which raises the question: Should a man be punished over and over again for sticking to his version of truth?

When former Judge Sir Thomas Thorp warned last year that, on the basis of his studies of overseas experience, as many as 20 New Zealand prisoners may be innocent, he called for an independent authority to identify miscarriages of justice.

He referred to the Tamihere conviction as one he "expected to bubble at some stage".

Sir Thomas has also expressed doubt about the conviction of Peter Ellis in 1993 on 13 charges of sexually abusing children at a Christchurch creche.

His doubts on Ellis clash with the opinion of former Chief Justice Sir Thomas Eichelbaum.

Peter Ellis served two-thirds of a 10-year prison sentence.

He has always protested his innocence and is fighting to clear his name, hoping for a Privy Council hearing.

After a High Court trial and two failed Appeal Court hearings, a ministerial inquiry conducted by Sir Thomas Eichelbaum in 2000 found that the interviewing of children who gave apparently damning evidence at Ellisí trial was appropriate and hadnít been "undermined by contamination by others".

Why no action on the Thorp proposal for independent authority to check for miscarriages of justice? Or will we just go on depending on concerned citizen crusaders to exhaust themselves and their bank accounts fighting for jailed innocents?