Crime in New Zealand wikipedia page

The current wikipedia Crime in New Zealand page is a vandalised version of the information below.  The wikipedia page was attacked on 19 May, 2015 by an Australian editor calling himself Nick-D who doesn’t like my contributions to wikipedia on New Zealand justice issues. 

Nick-D blocked me from editing Wikipedia indefinitely in May 2013. However, I was able to continue editing under a different pseudonym. Whenever Nick-D finds out I have contributed something to an article, he deletes the new content. He is willing to remove accurate, well-referenced information simply because of a personal grudge – thereby diluting the quality of wikipedia pages about justice issues in New Zealand.

I have posted the pre-vandalised wikipedia page about Crime in New Zealand below because it contains a great deal more information than the current wikipedia page. If you want to restore the version below to wikipedia, try clicking on the Undo button next to Nick-D’s pseudonym. However, being the pig-headed individual that he is, he will probably ‘undo’ your undo. 


Crime graphIntroduction

Crime in New Zealand is generally measured by the number of offences being reported to police per 100,000 people. However many crimes go unreported, especially sexual crimes, and do not appear in official statistics.[1] Crime rates in New Zealand rose for much of the 20th century but began to decline during the 1990s (see graph). The decline continued into the 21st century and, in 2013, the recorded crime rate was the lowest it has been in 29 years.[2] 

Despite the drop, crime often dominates much of the political debate in New Zealand. The media often focus on violent crime even though a relatively small proportion of criminal offending involves murder or serious violence.[3] This leads to misperceptions that crime is increasing and generates public apprehension and fear of being a victim of crime, as opposed to the actual probability of being a victim.[4] Victimization surveys collect information about people’s perceptions of crime and the criminal justice system and tend to give much higher figures than reported crime.

Crime statistics

Crime statistics in New Zealand are collected in different ways. Each method provides a different type of information and has different limitations which is why so many claims about crime trends reported in the media are inaccurate or misleading.[5] For instance New Zealand Police publish monthly statistics for a range of crime indicators,[6] as well as statistical reports for each calendar (ending 31 December) and fiscal (ending 30 June) year.[7] Historically, the Police have published crime statistics with its annual reports, from as early as 1900. Statistics New Zealand also publish crime statistics, based on Police data, in a web application that can produce statistical tables for each offence code.[8] Statistics New Zealand also publishes the results of its own research and analysis of crime statistics, based on data from Police, the Ministry of Justice and its own surveys. From 1 July 2010, statistics for the New Zealand Justice sector began using the Australian Standard Offence Classification (ASOC) to classify and aggregate offence statistics.[9]

Victimisation surveys

The Ministry of Justice has conducted Crime and Safety Surveys in 2006 and 2009[10] to assess victimisation rates as well as other research about crime in New Zealand. Victim surveys tend to suggest that less than a third of ‘crime’ is actually reported to Police which is consistent with victimisation surveys in similar countries such as Australia, Britain and the USA.[11] However, victim surveys also include reports of relatively minor matters which would not necessarily be seen as crimes by the justice system so interpretation of the figures is difficult.[12]

Resolution statistics

Between 1998 and 2007, the police became more effective at resolving crimes such that the resolution rate has gone from about 36% of all reported crimes to nearly 50%. The trend has not continued and in 2012 the number of cases resolved dropped to 47%.[13] For serious violence the resolution rate has gone from 71% to 80% and the murder resolution rate has gone from 62% to 91%. In the longer term, the percentages of resolved murder cases will be even higher as the Police report, that over time, they resolve close to 100% of all murder cases reported to them.[14]

Crime rates

In the 20th century

Despite different means of measuring crime, the statistics show that crime rates in New Zealand rose through most of the twentieth century, following similar patterns in other Western countries. [15][16] Towards the end of the century, the rate dropped and has stabilised or continued to drop slowly since then.[1] There has been much speculation about the causes of the turnaround. The impact of economic downturns, unemployment rates, local disasters, better security, changing demographic patterns, increased policing and various changes in the culture and life-style have all been examined. Collectively, all these factors may play a part.[17]

In the 21st century

The crime rate has continued to decline in the twenty-first century. In 2010, the number of murders in New Zealand dropped by nearly a quarter over the previous year (from 65 to 46), while overall reported crime fell 6.7 percent.[1] In 2011, New Zealand’s recorded crime rate was at its lowest in 15 years, down another 5.6% on the figures from 2010.[18] In 2012 (financial year), the crime rate dropped another 5.9 per cent on the previous year – taking into account an increase in the population of 0.7%. Homicide and related offending dropped by 21.5%.[19]

The total number of offences in 2012 was the lowest since 1989, and gave the lowest crime rate per head of population since before electronic records were maintained. Police said the largest decrease was in Canterbury, where recorded crime fell by over 11% – due to a large decrease in recorded theft and property damage offences immediately after the Christchurch earthquakes. However, this doesn’t necessarily mean crime actually dropped. Deputy Police Commissioner Viv Rickard said “This decrease appears to be partly due to the public not wanting to bother us with minor matters when they knew we were dealing with the earthquake.[19]

Factors contributing to reduced crime

Sir David Carruthers, a former Chief District Court Judge and now head of the Independent Police Conduct Authority, says the drop in the crime rate in New Zealand is partly due to a drive to reduce the number of teenagers being suspended or expelled from school. Around 70% of the most serious youth offenders are not in school, and keeping them involved in education is the best way to reduce offending. Education Ministry figures show that school suspension rates have been declining for at least 12 years, from 7.9 for every 1000 students in 2000 to 5.2 in 2011. The decline has been most dramatic for Maori students – down from almost 20 to under 12 for every 1000 Maori students.[20]

Kim Workman of Rethinking Crime & Punishment says another factor is the changing demographic in society; youths aged 18 to 24, who commit most crime, are a declining proportion of the ageing population. Recent changes in police strategy have also reduced the number of prosecutions in the past two years. Police are using diversion and warnings more frequently instead of charging minor offenders and are issuing safety orders for less serious domestic situations – which allow an offender to be ordered out of the house for up to five days without recording this as an offence.[20] Figures released in 2012 show police have issued more than 32,000 warnings for petty crimes, resulting in a 10% drop in charges before district courts. The warnings are most commonly used to resolve disorderly behaviour and breach of liquor ban offences.[21]

Police Minister Anne Tolley believes the decrease in crime is due to increased frontline policing and prevention. In 2014, she said: “Police foot patrols increased by 155 per cent over the last two years, and officers are now equipped with smartphones and tablets which allow them to input and access important information without returning to the station. This is delivering an extra half a million frontline police hours every year, or the equivalent of 354 additional officers.”[22]

Public perceptions of crime

New Zealand perspectives

Despite the drop in crime, many New Zealanders continue to believe that violent crime is out of control. A Ministry of Justice study in 2003 found that 83% of New Zealanders held inaccurate and negative views about crime levels in society and ‘wrongly believed’ that crime was increasing.[23] A more recent study in 2009 by Dr Michael Rowe, also from Victoria University, found “an overwhelming public belief that crime has got worse” despite New Zealand’s murder rate dropping by almost half in the past 20 years.[24] Reflecting the depth of these misperceptions, between 2006 and 2009, only 57% of New Zealanders reported feeling ‘safe’.[25] This means that despite reductions in crime, and despite our international standing as a peaceful country with high levels of human development, New Zealanders feel no more secure than the citizens of former communist states like Bulgaria (where only 56% feel safe) and Albania (54%). New Zealand is also on a par with Middle Eastern countries like Iran (55%) and Lebanon (56%) and African countries such as Angola (53%), Nigeria (51%) and Uganda (51%).[26]

International perceptions of NZ

New Zealanders’ perceptions of safety are also out of sync with the way the country is perceived internationally. In 2010 and 2011, New Zealand topped the Global Peace Index issued by the Institute for Economics and Peace – out of 149 countries.[27] The index is based on 23 indicators including corruption, violence, crime rates, military spending and access to primary education. According to the 2014 Corruption Perceptions Index by Transparency International, New Zealand is second to Denmark as the least corrupt nation in the world[28] although there are different views on this – see Corruption in New Zealand.

Characteristics of victims

A victim survey undertaken in 1996 found that 67% of the population were not subject to any criminal activity, 14% suffered from two or more criminal offences, and 4% had been the victim of five or more criminal activities.[29] The New Zealand Crime and Safety Survey conducted in 2006 showed that Māori have a much higher risk of victimisation than other groups. The figures showed that each year around 47% of Māori were victims of crime and Māori were also more likely to be victimised multiple times (4.3 incidents per victim compared with 2.7 for European victims). The risk of victimisation for Māori was particularly high for serious offences, including sexual violence and violence by partners. For example, 8% of Māori women experienced sexual victimisation – twice as high as the national rate for women (4%).[30]

Analysis of the 2006 New Zealand Crime and Safety Survey showed that a number of factors contribute to the high rate of victimisation of certain groups of Maori over other Maori. These included being young, being on a benefit, being single, living in a sole-parent household, living in neighbourhoods with high social disorder and being female.The survey also that offences involving violence by strangers and damage to property were less likely to be reported and that four in ten Māori were unable to name any community service that was available for victims.[31]

Characteristics of offenders

Offenders can be classified according to their individual characteristics or from a population based perspective.

Common characteristics

Lord Bingham, former Chief Justice for Britain and Wales describes the profile of a typical offender like this: “He is usually male, often of low intelligence, and addicted to drugs or alcohol, frequently from an early age. His family history will often include parental conflict and separation; a lack of parental supervision; harsh or erratic discipline; and evidence of emotional, physical or sexual abuse. At school he will have achieved no qualification of any kind, and will probably have been aggressive and troublesome, often leading to his exclusion or truancy. The background will be one of poverty, poor housing, instability, association with delinquent peers and unemployment”.[32] This description applies equally well in New Zealand although it does not take account New Zealand’s particular ethnic situation.

Over-representation of Maori

New Zealand’s crime statistics are compounded by the over-representation of Maori at every stage of the criminal justice process.[33] Though Maori make up only 12.5% of the general population aged 15 and over, 42% of all criminal apprehensions involve a person identifying as Maori, as do 50% of those in prison. For Maori women, the picture is even more acute: they comprise around 60% of the female prison population.[33] The rate of imprisonment for Maori is over 700 per 100,000 of Maori in the community, seven times higher than the rate for non-Maori which is around 100 per 100,000.[33] This gives New Zealand an overall imprisonment rate of just under 200 per 100,000 of its population.[34]

These statistics are open to a variety of interpretations. A report by the Corrections Department says: “The figures lend themselves to extremist interpretations: at one end, some accuse the criminal justice system of being brutally racist, as either intentionally or unintentionally destructive to the interests and well-being of Māori as a people. At the other, there are those who dismiss the entire Māori race as constitutionally ‘criminally inclined’.”[33]

The drivers of crime

Family dysfunction

A forum held at Parliament in 2009 on the Drivers of Crime in New Zealand identified mainly socio-economic factors contributing to crime such as: “Family dysfunction; child maltreatment; poor educational achievement; harmful drinking and drug use; poor mental health; severe behavioural problems among children and young people; and the intergenerational transmission of criminal behaviour.”[35] The forum noted that “Many of these issues are concentrated within socially and economically disadvantaged families and communities.” In New Zealand, it seems these life circumstances are more likely to affect Maori families than non-Maori – which contributes to the comparatively high rates of offending by Maori.[33]

Alcohol and drug abuse

In 2010 the Law Commission released a report on the social destruction caused by alcohol in New Zealand and quoted district court judges who said that 80% of all offending in New Zealand occurred under the influence of alcohol and drugs.[36]

Fetal alcohol spectrum disorder

An associated risk factor is fetal alcohol spectrum disorder (FASD) caused by the mother drinking while pregnant. This can cause damage to the frontal lobe of the baby’s brain resulting in learning disabilities and lifelong physical, mental, and behavioural problems. Researchers at the University of Washington have estimated that more than half of children born with FASD encounter trouble with the law, whilst 35% are incarcerated at some stage during their lifetime. Canadian research with young offenders has found that more than one fifth are behaviourally impaired due to the condition.[37] In New Zealand up to 3000 children a year are born with fetal alcohol spectrum disorder.[38] Auckland Judge, Tony Fitzgerald, has called for greater public and professional awareness of this issue and the need for better assessment and support facilities to respond to the high offending rates of individuals affected by FASD.[37]

Traumatic brain injury

A range of developmental and early-age risk factors are known to be associated with a developmental pathway that increases the risk of (among other things) criminal involvement. One of them is suffering a traumatic brain injury (TBI) as a child. Professor Randolph Grace of the University of Canterbury, and Dr Audrey McKinlay from Melbourne’s Monash University, studied children in Canterbury who had received a head injury before the age of 17. They found that moderate to severe TBI led to ‘higher levels of malevolent aggression’ and was a significant predictor of offending behaviour.[39] About 36,000 new cases of TBI occur every year in New Zealand surpassing the number of heart attacks and more than five times the number of strokes. The number of cases is significantly higher than in other developed countries, and those most at risk are children, young adults, men, Maori and rural inhabitants.[40]

Income disparity

Internationally, the gap between the rich and poor has also been identified as a contributor to crime.[41] It has been argued that as the income gap grows wider, statistics for child mortality, mental illness, teenage pregnancy, crime, imprisonment and a range of other factors all tend to increase.[42][43] This has particular relevance to New Zealand because income inequality has risen sharply since the mid-1980s coinciding with the introduction of neo-liberal economic policies by former Labour Party finance minister, Roger Douglas.[41] A report released in 2011 by the Ministry of Social Development showed the gap had widened even further putting income inequality at its highest level ever.[44] However, care needs to be taken in applying this theory to New Zealand; while income inequality has been growing, the crime rate in New Zealand has been dropping. Other social indicators, including the rate of imprisonment, have been increasing.

Addressing the drivers of crime

In 2009, following the Drivers of Crime forum, the National led Government established four priority areas to reduce crime in New Zealand. This included improving support for maternity services and early parenting, addressing conduct and behavioural problems in childhood, reducing the social destruction caused by alcohol (and increasing treatment options for problem drinkers), and improving the management of low-level repeat offenders.[45]

Early interventions

Improving support for maternity services and early parenting is considered important because conduct and behavioural problems in childhood are an important predictor of later chronic antisocial behaviour, including crime. Interventions the National led Government has adopted in this area include increasing the number of intensive case workers to support vulnerable teenage parents and attempts to improve participation in early childhood education.[46]

Addressing conduct and behavioural problems in young children is also important. The Justice Department says if early intervention with the five to ten per cent of children with the most severe conduct and behavioural problems is effective, this has the potential to reduce subsequent adult criminal activity by 50 to 70 per cent. A key government proposal in this area is the establishment of programmes to strengthen positive behaviour and reduce bullying at school.[47] In 2008 three-quarters of primary school children reported being bullied, ranking New Zealand second worst out of 35 countries in a major international study.[48]In 2012, youth helplines in New Zealand were still being inundated with soaring numbers of bullying-related calls; Youthline reported bullying-related calls jumped from 848 in 2010 to 3272 in 2012. The youth services say schools are failing to protect students.[49]

Reform of liquor laws

To address the harm caused by alcohol, the Government asked the Law Commission to conduct a comprehensive investigation into New Zealand’s liquor legislation. The Commission received thousands of submissions and their investigation took over two years leading to the release of a 500 page in-depth report: Alcohol in Our Lives: Curbing the Harm. The Government incorporated many of the less important recommendations made by the Commission into the Alcohol Reform Bill. However, the Bill was widely criticised by health professionals for failing to address six key evidenced-based recommendations put forward by the Commission.[50] The six included raising the price, making the extra revenue available for the treatment of problem drinkers, banning television and radio advertising of alcohol, reducing trading hours of bars and clubs, reducing the number of outlets allowed to sell alcohol and raising the purchase age back to 20 years.[51][52] A NZ Herald on-line survey showed 80% of respondents thought the Government’s reforms were a ‘token gesture’ or ‘could be stricter’.[53]

When the issue of the purchase age reached the floor of parliament in August 2012, MPs voted to keep the purchase age at 18.[54] Around the same time, Justice Minister Judith Collins also revealed she had dumped a plan to ban the sale of RTDs (ready-to-drink) with more than 6 per cent alcohol content.[55]After meeting with liquor industry representatives, Collins agreed to allow the liquor industry to make its own regulations on RTD’s instead.[56]

The relationship between crime and imprisonment

New Zealand’s imprisonment rate

New Zealand has followed the pattern of many Western countries by locking up more and more of its citizens and the crime rate has fallen. The number of people in prison has been growing steadily for the last 50 years and since 2010, the rate of imprisonment has been just under 200 per 100,000 of population. This gives New Zealand the second highest rate of imprisonment out of 29 countries in the West.[57] New Zealand’s rate is much higher than countries it tends to be compared with, such as Canada (117), Australia (129), England and Wales (154) and is more on par with many third world countries like Morocco (where the rate is 199), Gabon (196), and Namibia (191).[58]

Penal populism

In New Zealand, as in most western democracies, the rate at which people are sent to prison primarily depends on trends in penal policy and sentencing law – in particular laws affecting the availability of community-based sentence options for judges, the use of remand, and the maximum length of sentences for any given offence. Penal policy is inevitably affected by the prevailing political climate.[59] Indeed, Professor John Pratt of Victoria University in Wellington says that while crime is driven primarily by socio-economic factors, the growing rate of imprisonment in Western countries has been driven by penal populism – a process whereby the major political parties compete with each to be “tough on crime” by proposing laws which create longer sentences and increase the use of remand prior to sentencing.[60] The news media contribute to penal populism by sensationalising violent crime[61] and the process is fuelled by victims groups like the Sensible Sentencing Trust vilifying judges, politicians and the Parole Board for failing to lock offenders up or keep them in prison.

In addition to sending more and more people to prison, New Zealand also seems to have had a history of locking people up for relatively minor offences.[62] In 1930, the Under Secretary for Prisons reported that “34% of the total number of persons committed to prison were serving terms of less than one month, 58% for terms of less than three months and 73% were for terms of less than six months”.[63] The proportion of people in prison for serious crimes was relatively small. Even today, 70% of all offenders in prison will be released within seven months.[62]

Prison overcrowding

In July 2009 Dame Sian Elias, the Chief Justice, argued against what she described as the “punitive and knee-jerk” responses to crime because of its potential consequences for prison overcrowding.[64] In a controversial speech to the Wellington District Law Society, she called for a more rational approach to penal policy and said the focus on victims had made courtrooms “very angry places”[65] and had put at risk the impartial system of deciding criminal blame. She also said that if action to address the growing prison population was not taken, Government might be pushed into the use of executive amnesties to reduce the growing prison population.[66] In response, Minister of Justice Simon Power said “The Government is elected to set sentencing policy. Judges are appointed to apply it.”[67]

The cost of crime

The Corrections Department estimates that one criminal with a lifetime of offending generates $3 million in costs to victims and taxpayers.[68] In 2011, the cost to the taxpayer for Police, Courts, and Corrections was estimated at over $3.7 billion a year.[69] This figure does not include the costs incurred by victims such as medical expenses and replacing stolen property. In 2006, when all other costs were included, crime was estimated to cost New Zealand $12.5 billion.[70]However, this figure does not include the cost of white collar fraud and economic crime because the Serious Fraud Office has so far been unable to generate a methodology to calculate the annual cost, although officials believe the cost was “likely to be in the region of many billion of dollars per year.”[71]

Legislation and sentencing

Criminal law

Legislation has a number of purposes – not least of which is to impose penalties and sanctions for breaches of behaviour proscribed by a particular Act of Parliament. New Zealand has codified its criminal law through various pieces of legislation. Most criminal offences that would result in imprisonment in New Zealand are set out in the Crimes Act 1961, including the Crimes (Repeal of Seditious Offences) Amendment Act 2007 and the Misuse of Drugs Act 1975 – although criminal offences related to specific situations also appear in other legislation. Less serious breaches of the law are dealt with under legislation such as the Summary Offences Act 1981 and the Land Transport Act 1998 where penalties are more often a fine or other community sanctions rather than imprisonment.

Common law

It is up to the courts to apply particular statutes. In the process they may need to interpret what the legislation actually means and decisions made by the courts create what is called common law. Common law is based on precedents – decisions which are used as a guide, or as an authoritative rule, in later, similar cases. Parliament may subsequently disagree with the courts’ interpretation of a particular statute, and in such situations, may amend the legislation to make its meaning clearer.[72]

Need for better scrutiny

As time goes by, most Acts of Parliament are amended by successive Governments which sometimes creates irregularities in their application and has the potential to create confusion and inconsistency. In 2006 the Law Commission issued a report which said different courts and even different judges were inconsistent when it came to sentencing, particularly for less serious offences in the District Court.[73] Highlighting this inconsistency, research at Victoria University has found that, on average, judges in provincial areas of new Zealand are six times more likely to send repeat drink drivers to prison than judges in metropolitan areas.[74] In one province, drink drivers are ten times more likely to be sent to prison. VUW researcher, Wayne Goodall, says there are “systematically different approaches” coming from different regions, because there is “a problem with sentencing policy”.[75]

Former Prime Minister Sir Geoffrey Palmer believes that when legislation is introduced to parliament it needs ‘more and better scrutiny’ than it currently receives. He says the volume of new Bills being introduced is greater than Parliament can manage and “The quality of legislation is getting worse. Not enough time and effort is spent on getting it right.”[76] Although Parliament is responsible for passing legislation, the courts have responsibility for deciding how laws are to be interpreted and applied – a task made more difficult if parliament has ‘not got it right’.

Sentencing Council

In 2007, the Labour Government announced it would appoint a sentencing council which would be responsible for bringing greater consistency to legislation, and developing sentencing guidelines. The Government had particular concerns that judges were taking an unduly hard sentencing line with low level offenders leading to prison overcrowding. It put $5.8 million towards developing the council over a period of four years, but it never got off the ground.[77] When National won the election in 2008, Justice Minister Simon Power scrapped plans for the Sentencing Council and also scrapped the Criminal Justice Advisory Board set by Labour in response to a recommendation from the Ombudsman.[78]

Law enforcement

Several agencies enforce New Zealand criminal law, although the New Zealand Police is the national agency responsible for enforcing criminal and traffic law, enhancing public safety, maintaining order and keeping the peace throughout New Zealand. The Police frequently co-operate with other enforcement agencies both on a case by case basis and also through multi-agency taskforces targeted at Organised and Transnational Crime. Fisheries, Immigration, Organised Crime, Serious Fraud, Aviation and Border Security all have dedicated enforcement agencies. In addition to Police, road controlling authorities, such as local city or district councils, have the power to enforce their own parking by-laws.[79]

References

  1. Large drop in reported crime, murder rate, 1 April 2011
  2. Crime rate falls to 29-year low, New Zealand Herlad, 1 April 2014
  3. Gabrielle Maxwell, Changing Crime Rates 1998 -2007, Paper prepared for “Addressing the causes of Offending” IPS Forum February 2009, p 5
  4. Judy McGregor, “Crime news: The cutting edge” in What’s News? Reclaiming journalism in New Zealand, Eds: McGregor, J and Comrie, M., Dunmore Press, 2002, p 88-91.
  5. Gabrielle Maxwell, Changing Crime Rates 1998 -2007, Paper prepared for “Addressing the causes of Offending” IPS Forum February 2009, p 2.
  6. Monthly Statistical Indicators
  7. Crime Statistics
  8. New Zealand Recorded Crime Tables
  9. Progress report for 2009 review of crime and criminal justice statistics: July 2011 p. 10.
  10. Crime and Safety Survey
  11. The NZCASS in an International Context (PDF).
  12.  Gabrielle Maxwell, Changing Crime Rates 1998 -2007, Paper prepared for “Addressing the causes of Offending”      IPS Forum February 2009, p 2
  13.  Fewer crimes committed, solved
  14.  Gabrielle Maxwell, Changing Crime Rates 1998 -2007, Paper prepared for “Addressing the causes of Offending” IPS Forum February 2009, p 4
  15. The curious case of the fall in crime, The Economist
  16. Where have all the burglars gone?, The Economist
  17. Gabrielle Maxwell, Changing Crime Rates 1998 -2007, Paper prepared for “Addressing the causes of Offending” IPS Forum February 2009, p 3
  18. 42,444 crimes reported in Wellington, DominionPost 2 April 2012
  19. NZ crime rate at all-time low – Police, NZ Herald 1 October 2012
  20. Schools do their bit to cut crime NZ Herald 28 November 2012
  21. Warnings reduce court load, NZ Herald 3 December 21012
  22. Crime rate falls to 29-year low, New Zealand Herald, 1 April 2014
  23. Attitudes to Crime and Punishment: A New Zealand Study, Ministry of Justice, Wellington, 2003, pp. 4 & 66
  24. Collins, Simon (7 April 2009). “NZ murder rate halved in past 20 years”New Zealand Herald. Retrieved 9 June 2013.
  25. Human Development Report 2010 – 20th Anniversary Edition, United Nations, p 180.
  26. Human Development Report 2010 – 20th Anniversary Edition, United Nations, p 44.
  27. Peace index ranks Canada 14th in world, The Canadian Press, 8 June 2010.
  28. 2014 Corruption Perceptions Index, Transparency International
  29. Crime in New Zealand: a statistical profile, Parliamentary library
  30. A profile of victimisation in New Zealand, Ministry of Justice website
  31. New Zealand Crime and Safety Survey 2006 – Analysis of the Māori experience, Ministry of Justice website
  32. Tom Bingham, The Sentence of the Court in The Business of Judging, Oxford University Press 2000, p 308.
  33. Over-representation of Maori in the criminal justice system, Policy, Strategy and Research Group, Department of Corrections, September 2007, p 6.
  34. New Zealand, International Centre for Prison Studies
  35. Addressing the Drivers of Crime, Ministry of Justice, 17 December 2009, 2009 p 3, para 14
  36. Alcohol In Our Lives: Curbing the Harm, New Zealand Law Commission, April 2010
  37. Fetal Alcohol Syndrome Disorder, Rethinking Crime & Punishment website
  38. Catastrophic damage of alcohol hard to ignore, The Press 3 September 2012
  39. Child’s brain injury could lead to crime later in life – study, NZ Herald 29 November 2012
  40. Epidemic’ of brain injuries in NZ – study, NZ Herald 22 November 2012
  41. Social problems linked to wealth gap: study, NZ Herald 22 November 2010
  42. The Evidence in Detail, The Equality Trust
  43. The Spirit Level: Why More Equal Societies Almost Always Do Better. London, Allen Lane, 5 March 2009. ISBN 978-1-84614-039-6 UK Paperback edition ISBN 978-0-14-103236-8 (February, 2010)
  44. NZ inequality at highest level, NZ Herald 23 August 2012
  45. Drivers of crime priority areas, Ministry of Justice.
  46. Improving maternity and early parenting support.
  47. Addressing conduct and behavioural problems in childhood
  48. NZ schools lead world in bullying Dominion Post 14 december 2008
  49. What needs to be done to reduce bullying at school? NZ Herald 7 May 2012
  50. Alcohol Action New Zealand
  51. Alcohol reforms too diluted for public taste, NZ Herald 28 August 2012
  52. Alcohol bill diluted to an insipid brew, NZ Herald, 29 August 2011
  53. Alcohol reforms ‘watered down’
  54. No age rise for alcohol sales, DomPost 30 August 2012
  55. 6% alcohol limit for RTDs dumped, Dominion Post 23 August 2112
  56. Liquor lobbyists press Collins, Dominion Post 25 November 2012
  57. International Centre for Prison Studies
  58. International Centre for Prison Studies
  59. New penology and new policies, On-line Resource Centre P 10
  60. Pratt, John; Clark, Marie (2005). “Penal populism in New Zealand”.Punishment and Society 7 (3): 303–322. doi:10.1177/1462474505053831.
  61. Judy McGregor, ‘Crime News: The Cutting Edge’ in What’s news? Reclaiming Journalism in New Zealand, Dunmore Press, 2002, p 88-91
  62. Politics and Punitiveness – Limiting the Rush to Punish, Kim Workman Executive Director, Rethinking Crime and Punishment, November 2011
  63. Report of the Under Secretary of Prisons (Wellington: AJHR H20, 1930)
  64. Chief Justice suggests amnesty to clear jails, NZ Herald, 16 July 2009
  65. Editorial: Populist pitch on justice just posturing, NZ Herald 26 August 2010
  66. Dame Sian Elias (9 July 2009). “Blameless Babes – Address to the Wellington District Law Society” (PDF). The New Zealand Herald.
  67. Espiner, Colin (2009-07-17). “Minister tells judge to butt out”The Press. Retrieved 19 October 2012.
  68. About Time, Report by the Department of Corrections, Wellington, 2001, p 5.
  69. Simon Power, Minister of Justice, Speech to Institute of Policy Studies ‘Costs of Crime’ forum, 21 February 2011.
  70. Simon Power, Minister of Justice, Drivers of Crime ministerial meeting opening address, 3 April 2009, beehive.govt.nz.
  71. Economic crime costs NZ billions each year, Stuff 12 February 2013
  72. The Role of the Courts, Courts of New Zealand
  73. Sentencing Guidelines and Parole Reform Law Commission website
  74. Justice inconsistent across New Zealand, Wayne Goodall, Victoria University
  75. Place of sentencing factor in severity, Stuff
  76. Sir Geoffrey Palmer, What is Parliament For? New Zealand Law Journal 378 (2011)
  77. National to scrap sentencing council, Stuff 2 August 2008
  78. Criminal Justice Advisory Board disbanded, Scoop 12 January 2009
  79. Bylaw-making and operation, Auckland Transport

Mark Lundy’s wikipedia page

LundyOver the years, I have made numerous contributions to the Wikipedia page about convicted murderer Mark Lundy (right). The information below was on Lundy’s Wikipedia page up until 18 May, 2015. The following day, the page was vandalised by an Australian editor calling himself Nick-D. It is now looks like this.

Nick-D blocked me from editing Wikipedia indefinitely in May 2013. However, the blocking process is ineffective and allowed me to continue editing under a different pseudonym. Whenever Nick-D finds out I have contributed something to an article, he deletes the new content.

I have posted the original page about Mark Lundy below (but added some photos) because it contains a great deal more information than the current wikipedia page. If you want to restore the version below to wikipedia, try clicking on the Undo button next to Nick-D’s pseudonym.


Lundy familyChristine Marie Lundy, 38, and her 7-year-old daughter Amber Grace Lundy were murdered in Palmerston North, New Zealand, on 29 or 30 August 2000. Mark Edward Lundy (then age 43), Christine’s husband and Amber’s father, was arrested and charged with the murders in February 2001.[1] In 2002 he was convicted of the murders after a six-week trial and was sentenced to life imprisonment with a minimum non-parole period of 17 years. Lundy maintained he was innocent and took his case to the Court of Appeal; the appeal was rejected and the court increased his non-parole period to 20 years.[2]

In June 2013 Lundy appealed to the Privy Council in Britain.[3] In its decision, announced four months later, the Council focussed on three main points: the reliability of evidence surrounding the time of death, the accuracy of the testing of brain tissue given the state of the samples and an alternative explanation for the alleged tampering of the family computer.[4] The Council ruled the convictions “unsafe” and ordered a re-trial.[5] Lundy served nearly thirteen years in prison but after the Privy Council decision was temporarily freed on bail.[6] The retrial was held in early 2015. Lundy was found guilty and sentenced to life imprisonment once again.[7]

Background

Mark and Christine Lundy met at a Scouts and Guides gang show when Christine was still in her teens. Mark was three years older. They married in 1983, and their only child, Amber, was born 10 years later.[8] The couple were part of a group that held wine tastings in each other’s homes and had a wide circle of friends.[9] One witness said Christine had wanted her husband to give up drinking for three months.[10]

Lundy started his working life as a builder and joiner; once he got together with Christine, they set up a business selling kitchen sinks and tapware.[11] Christine did the paperwork and other jobs for the business, and Lundy made fortnightly sales trips to Wellington to visit kitchen suppliers.[12] At the time of the murders, they had been together for 18 years[13] and the kitchen business had on-going debts of about $100,000.[14]

In regard to Lundy’s character, witnesses at the retrial “almost all agreed he was an affectionate husband and adoring father”, although it was also revealed he had been to prostitutes on a few occasions, including on the night that Christine and Amber were killed.[15] At the retrial, statements by Christine Lundy’s late mother, Helen Weggery, and Mark Lundy’s late father, Bill, were read out. This indicated they were both frequent visitors to the Lundy home and believed the couple were ‘well matched and loved each other’.[16]

In 1999, the Lundys tried to buy two blocks of land in Hawkes Bay, at a cost of $2 million, which they intended to turn into a vineyard. Lundy was looking for other investors to help make the purchase and registered a prospectus to raise money.[17] As part of their commitments, they owed $140,000 of penalty interest on the deal to buy the land due to missing settlement deadlines.[18] On one parcel of land, on which the Lundys had missed two deadlines, the final settlement was due on August 30, 2000, the day that the bodies of Christine and Amber were found.[19] Forensic accountant, Reginald Murphy, testified (at the retrial) that at the time of the murders, the Lundys had $439,000 in commitments but “no assets of any consequence” and were effectively insolvent.

The murders

James PangOn the morning of Tuesday, 29 August 2000, Lundy drove to Wellington on one of his regular business trips. He checked into a motel in Petone at around 5:00 pm. Records show his wife or daughter called him on his cell phone in Petone to say they were going to McDonald’s for dinner. Receipts showed they purchased dinner at 5.43pm.[20] The time of death was estimated by pathologist James Pang (right) to be about 7pm. He concluded the deaths occurred an hour and 10 minutes after they ate basing his opinion on the relatively undigested state of Christine and Amber’s stomach contents.[21]

Lundy made a cell phone call from Petone to a business partner of his Hawke’s Bay wine-making venture at 8.28 pm.[20] The computer at the Lundy home was switched off at 10:52 pm.[22] Witnesses, including a next door neighbour, described seeing lights on in the Lundy house about 11pm (but they were off the next morning when Christine’s brother came round to the house.) At 11:30 pm, Lundy called an escort service in Petone and the escort was driven to his motel.[23] Afterwards, she called the agency and at 12.48am was picked up by a driver.[24]

Christine’s brother went to the house at about 9:00 the following morning after Lundy called and asked him to check on Christine who was not answering her phone. The brother broke into the house and found the bodies of Christine and Amber bludgeoned to death. Christine’s body was on her bed; Amber’s was on the floor in the doorway of Christine’s bedroom.[25] Both had died of head injuries caused by multiple blows from what was determined to be a tomahawk-like weapon or small axe.[26] No weapon was found. A rear window had been tampered with and had Christine’s blood on it. A jewellery box was later determined to be missing.

Trial 2002

After a police investigation of six months, Lundy was arrested and charged with their murders. The trial took place in the High Court in Palmerston North.[27]

Prosecution case

The Crown called more than 130 witnesses.[28] They contended that Lundy killed his wife for her life insurance money because of financial pressures, and then killed his daughter because she was a witness. They said that after talking to his wife and daughter on the phone from Petone, Lundy got in his car and drove back to Palmerston North, bludgeoned his wife and daughter to death, changed his clothes, got rid of the evidence, altered the time on the family computer, ran back to his car wearing a blonde wig and then drove back to his motel in Petone at high speed.[29] The Crown alleged Lundy changed the time clock on his home computer so it would look like it was turned off at 10.52pm.[30]

No weapon and no blood stained clothes were ever found and no blood was found in Lundy’s car.[31] However, paint found in the hair of the victims was said by the prosecution to match the paint Lundy used to mark the tools in his toolshed.[32] An ESR scientist who was called to testify said the paint samples were contaminated and no chemical analysis of the paint was done to prove the flecks ‘matched’.[29]

Rodney MillerThe prosecution also alleged that a speck of tissue found on one of Lundy’s polo shirts two months after the murders[29] was brain tissue; the shirt was found along with other clothes and miscellaneous items on the back seat of his car. Although New Zealand pathologists could not identify it as Christine’s brain tissue, a pathologist from Texas, Rodney Miller (left), said it was. Miller used a technique known as immunohistochemistry, a technique he had previously tested on a chicken, to identify the human tissue as brain matter.[33] The prosecution argued the only way this brain tissue could have got on the shirt was if Lundy himself was the murderer. However, the prosecution failed to disclose a report by neuropathologist, Dr Heng Teoh, questioning the reliability of the ‘brain tissue'[34] and other experts subsequently cast doubt on Rodney Miller’s conclusions.[35]

The Crown also relied on a witness who claimed she had seen Lundy in Palmerston North at the time of the crime. Margaret Dance was a 60-year-old woman, who said at the trial she had “psychic powers and a photographic memory”. She lived about 500 metres from the Lundy home and said she had seen a man wearing a blond wig who ‘appeared to be trying to look like a woman’ running on the street at about 7:15 pm. She also said she saw seven other people outside a takeaway shop in the area. Nobody else, including the seven people she described, saw anyone running in the area that night.[36]

Defence case

The defence called three witnesses including Lundy himself, who emphatically denied killing his wife and daughter. He says that evening he drove to the Petone foreshore where he read a book, before heading back to the motel. Once there, he said he watched TV while drinking rum. Around 11.30pm he called an escort agency and spent the next hour with a prostitute who came to the motel.[37]

Lundy’s cell phone records proved he used his phone in Petone at 5:43 pm and at 8:28 pm. A key defence argument was that he could not possibly have made the round trip of 300km from Petone to Palmerston North and back in less than three hours during peak hour traffic – in addition to committing the murders, disposing of the murder weapon and blood stained clothes and changing the time on the family computer.[38] The defence pointed out that there was blood and tissue splattered everywhere including on the walls, the bed and the floor around the bodies but not on his car, his glasses, his wedding ring, or his shoes or other clothes which were “all tested for blood or other tissue and absolutely nothing was found”.

In regard to the ‘minute specks of tissue’ found on the polo shirt two months later, the defence said Christine’s DNA might have got there if she gave him a hug or put away his shirt.[29]

Verdict

The jury deliberated for seven hours before finding Lundy guilty of the murder of his wife and child.[26] He was sentenced to life in prison with a minimum non-parole period of 17 years, including time already served.

Court of Appeal

In 2002, Lundy took his case to the Court of Appeal on the grounds that the verdict was unreasonable and not supported by the evidence.[39] His appeal was not only unsuccessful, the Court increased his non-parole period from 17 years to 20 years. The judges felt that 17 years was insufficient recognition of “the need for very strong denunciation of the killing of Amber as well as that of Mrs Lundy.”[2]

Concerns about conviction

Support of Geoff Levick

Geoff levickGeoff Levick (right), ran a campaign to have Lundy’s conviction overturned for 13 years after reading a story in the New Zealand Herald about Joe Jessup in January, 2003.[40] Jessup, a friend of Lundy’s, was disturbed that five people considered suspects by police at the time were never investigated to the point that they were eliminated as suspects. He became the first to campaign on Lundy’s behalf.[41] The story caught Levick’s interest, and marked the beginning of a lengthy campaign.

Levick used to own a business in the area and visited clients in Petone and Palmerston North, near the Lundy home. He drove the route taken by Lundy dozens of times and says it always took him about two hours. When he heard how quickly Lundy was alleged to have done the trip, he simply didn’t believe it. Lundy would have had only three hours to make the return journey from Petone to Palmerston North, a round trip of approximately 290 km (180 mi), kill his wife and daughter, change his clothes and dispose of evidence.[29] In order to make it back to Petone by 8.28 pm, Lundy would have had to drive to Palmerston North in rush hour traffic at an average speed of around 117 km/h (the maximum open road speed limit in New Zealand is 100 km/h),[29] commit the crimes, and make the return journey back to Petone at an average speed of 120 km/h.[29]

Levick speculates that a creditor of Lundy’s paid someone to go to the house to “teach him a lesson”, but Lundy was not there and matters “got out of hand”.[42] At the retrial in 2015, the Lundys’ former cleaner, Rowena Collett, said she saw a white car with three people in it drive slowly past the Lundy’s house two days before the murders. One of them, a woman, was staring down the Lundy’s driveway and “she thought the woman was being nosey”.[43] Seven unidentified fingerprints and a palm print were also found around the house – but this information was not given to the jury at the first trial.[29]

2012 documentary

In 2012, documentary film maker, Bryan Bruce made an episode examining the Lundy case as part of his series The Investigator. Like others, Bruce concluded that Lundy could not possibly have made the return trip in three hours,[44][45] but he thought Lundy could have made the trip and committed the crimes later that night, returning to Petone in the early hours of the morning.[45] The prosecution presented this scenario as their version of what happened at Lundy’s retrial in 2015.

Appeal to Privy Council

Ten years went by while Lundy’s small group of supporters, led by Geoff Levick, “continued working behind the scenes”.[46] Legal aid was not available and there were difficulties funding an appeal. In 2009, North & South magazine published the results of an investigation into the case by journalist Mike White. White went through all the research and documentation that Levick had accumulated over 13 years, interviewed pathologists and others about brain tissue, and the digestion of stomach contents, and produced an 18 page analysis titled The Lundy murders: what the jury didn’t hear.

David HislopThe article eventually helped persuade David Hislop QC (left) to take the case to the Privy Council.[47] Later that year, Lundy’s legal team announced an appeal was “imminent” but it was not until three years later, in November 2012, that an application was made to the Judicial Committee of the Privy Council seeking permission to appeal his convictions.

‘Revelation’ of undisclosed document

A few days before the appeal, and 11 years after he was found guilty, a report by a New Zealand neuropathologist, Dr Heng Teoh, questioning the reliability of the ‘brain tissue’ was given to Lundy’s legal team. Police had failed to disclose the report to his defence lawyers, or to the court, at the time of the trial,[48] a strategy known as noble cause corruption. One of the law lords described the discovery of this document as a “revelation”.[49] In the end, the Privy Council decided the science used to identify the speck of tissue found on Mark Lundy’s polo shirt was controversial and there was reason to doubt its accuracy.[50] At the retrial in 2015, the Crown acknowledged they got the timing wrong and argued the murders occurred at least eight hours later – in the middle of the night.

Other issues before the Council included the time of shutdown of Christine’s computer, and the examination of stomach contents used to determine the time of death.[51] Mr Lundy’s legal team submitted that examination of stomach content to determine time of death was internationally discredited as bad science.[52]

Decision

The hearing which included Chief Justice of New Zealand Dame Sian Elias began on 17 June 2013. The Privy Council announced its decision in October 2013, declaring Lundy’s convictions “unsafe” in light of the new evidence, quashed the convictions and ordered a retrial.[53]

Release on bail

After his convictions were quashed, Lundy applied for bail. In his decision to grant bail, Mr Justice Young noted that “Mr Lundy has no history of offending other than the two murder convictions which are now quashed.” He went on to say: “Mr Lundy is entitled to the presumption of innocence. He is back to the stage where he is charged and the Crown has not proved a case of murder against him.”[54]

Retrial 2015

The time of death

The retrial began in February 2015 and on the first day, the Crown led by Phillip Morgan Q.C took a different approach to the case. They said they now believed that Lundy drove up to Palmerston North after spending an hour with a prostitute (who left his motel at 12.48am), and killed his wife and daughter in the early hours of 30 August. Pathologist James Pang said it was impossible to pinpoint the exact time of death and so Amber and Christine Lundy could have died at any time within a 14 hour period before the bodies were discovered at about 9.00am the following morning.[55] Defence counsel, Ross Burns, said the Crown’s introductory statement was “an affirmation that Lundy had been wrongly convicted in the first trial”.[56] Mr Burns also said there was fresh evidence implicating someone other than Lundy.

Computer evidence

Evidence by computer experts also contradicted testimony given at the first trial suggesting that Lundy had manipulated the time at which the family computer had been turned off. A former police electronics expert, Maarten Kleintjes (right), and FBI contractor, Troy Kelly, both said there was no evidence the computer had been tampered with.[57] Kleintjes agreed that if Christine Lundy had turned off the computer at 10.52pm, it was not possible that her husband had killed her at 7pm.[58]

The possible motive

Questions were also raised in the retrial about the Crown’s theory on Lundy’s possible motive. In the first trial the prosecution claimed the Lundys had recently increased their life insurance and Mark then killed his wife to claim the insurance and pay off debts. In the second trial, the court was told that a proposed increase in the Lundys’ life insurance policy was initiated not by Mark Lundy but by insurance broker, Bruce Parsons, as part of a regular review. The increase was to be from $200,000 to $1 million each, but the Lundys thought that was too much, and agreed to $500,000. However, the new policy was not in place at the time of Christine Lundy’s death.[59]

The paint flecks

The defence led by David Hislop Q.C (an English barrister originally from New Zealand) began presenting its case on 2 March, 2015. Their first witness was British forensic expert, Gillian Leak, who challenged the prosecution case about paint flecks found in Christine Lundy’s hair. She said she would have managed the risk of contamination very differently from the way ESR forensic scientists approached the crime scene,[60] described practices employed by officers examining Mark Lundy’s car as “unusual”[61] and suggested the police may have inadvertently introduced contamination.

ESR scientist, Bjorn Sutherland, conceded that paint flecks found on and around Christine Lundy’s body could have come from somewhere other than the murder weapon. The court heard that two people, Christine’s brother and an ambulance officer, went near Amber’s body before the police turned up.[62] On the 19th day of the trial, police photographer Sergeant Robin Walker admitted he sometimes left and re-entered the Lundys’ house without changing his protective gear.[63]

DNA evidence

A significant focus at the retrial was on the nature of the stains on Lundy’s polo shirt. Early in the trial, the defence challenged Ross Grantham, the detective in charge of the police investigation before Lundy’s first trial. Grantham acknowledged that New Zealand pathologist Dr Heng Teoh told him, “A man could not be convicted on the strength of one glass slide – they were too degenerative and should remain a mystery.”[64]

Later on in the trial, American pathologists called by the prosecution testified the tissue in the stains was central nervous system tissue. Manchester-based neuropathologist, Dr Daniel du Plessis, agreed the sample contained central nervous system tissue but also said he was unable to tell if the tissue came from a human or an animal, or what gender the origin of the tissue was. Dr Colin Smith, a UK-based pathologist called by the defence, confirmed that central nervous system tissue is allowed in meat products in New Zealand.[65] Earlier in the trial the jury was told that police found a wrapper for a beef and chilli pie in Lundy’s car raising the possibility that the DNA testing done by the pathologists had been conducted on “the spilled remains of a meat pie”.[66]

The court also heard evidence via video link from German scientist Marielle Vennemann. She made wide-ranging criticisms of scientific evidence presented by the Crown especially the work done at the Netherlands Forensic Institute where scientists tried to identify the origin of central nervous system tissue. Vennemann said the tests used at the Dutch laboratory were not yet reliable enough to provide conclusive results for forensic purposes. She also criticised the standards and steps taken to avoid contamination in the American laboratory where the samples were originally processed in 2001.[67]

Other DNA evidence presented at the trial concerned new tests conducted in 2014, in which DNA of two unknown men was found under the fingernails of both Christine and Amber.[68]

Alternative suspects

It was revealed that at the time the murders occurred, a man with mental health problems was temporarily regarded as a suspect. Police had to get a court order to obtain his medical file from MidCentral Health which showed he had been under the care of mental health services since 1998. The man, who has name suppression, has convictions for violence including wounding with intent to cause grievous bodily harm. He lived in the same Palmerston North suburb as the Lundys and was believed to dislike Christine Lundy. At the first trial, police believed the murders occurred at about 7.00pm, at which point the man had an alibi. The prosecution is now saying the murders occurred in the early hours of the following morning.[69]

At the retrial, defence counsel David Hislop, QC, suggested Christine’s brother, Glenn Weggery, had been having an improper relationship with Amber Lundy and accused him of the murders. He said that when police examined his car, blood was found inside the boot. Blood was also found near the driver’s seat and on a towel in Weggery’s truck.[70] Traces of blood were also found in the bathroom of his house, on a pair of his underwear and a handkerchief in his house,[71] which were an 83% match to Christine’s DNA and an 88% match to Amber’s.[72][73]

Verdict

After deliberating for almost three days, the jury of seven men and five women unanimously found Lundy guilty of both murder charges. Mr Justice France re sentenced Lundy to life imprisonment with a minimum non-parole period of 20 years.[74]

Hearing on scientific evidence

After the guilty verdict was announced, it was revealed that Lundy’s team had tried to have complex scientific evidence excluded from the trial. The evidence objected to was from the Netherlands Forensic Institute where tests were developed that were said to show central nervous system tissue. On the basis of newly developed tests, Dr Laetitia Sijen, concluded that tissue found on Lundy’s shirt was more likely to be human than to come from common farm animals. Professor of molecular medicine Stephen Buston, from Angela Ruskin University in the UK, told the jury Dr Sijen did not follow written instructions when conducting tests on the sample and he “would be highly reluctant to accept the results of the [tests] because of the technique that has been applied.”[75]

The president of the Court of Appeal, justice Ellen France, agreed that the type of testing used by the prosecution lacked validation. The other two appeal judges decided there was a compelling argument to allow the jury to hear the evidence.[76]

Appeal

On 28 April, Lundy’s remaining lawyer, Julie-Anne Kincade, announced that the verdict would be appealed and the appeal would include questions raised about the validity of the scientific evidence presented at the trial.[77]

Costs

The cost to the taxpayer of two police investigations and trials has climbed to almost $6 million. The first investigation called Operation Winter, cost just over $1.3 million. Operation Spring, the second investigation, incurred expenses totaling more than $1.7 million. The $3 million spent on these prosecutions included travel on five international flights by detectives transporting scientific samples to international experts. This is on top of known expense claims from Lundy’s prosecution and defence teams which to date has exceeded $2m. [78]

Public perceptions

Of Mark Lundy

Lundy funeralMark Lundy is tall and used to be overweight. At the funeral held for Christine and Amber in 2000, he was seen on national television wearing dark glasses and holding on to friends for support. The way he behaved was judged by some as ‘acting’. Psychologist Nigel Latta, who profiled Lundy in his TV series, Beyond the Darklands said: “His performance at the funeral was ridiculous. It struck people at the time.” Latta even suggested it was “behavioural evidence” indicating Lundy’s guilt.[79] After he was found guilty at the first trial, Lundy was referred to in a magazine article as a “big fat filthy bastard”.[80]

New Zealand Herald journalist, Steve Braunias, is convinced that Lundy’s demeanour and behaviour played a significant part in the outcome of both trials. Writing about the retrial he said: “The science in his favour was strong, and various assorted evidential circumstances further pointed to his innocence.” But he points out the one thing the jury wanted to see again was a video made of Lundy during the original police interview in 2000. “Once again, he was being damned for the way he behaved. It was the funeral all over again.”[81] An article in LawFuel published shortly after the second guilty verdict also focussed entirely on Lundy’s acting ability rather than analysing the evidence.[82]

Of police

Political commentator, Bryce Edwards, pointed out that legal costs of Lundy’s prosecutions cost the taxpayer $5 million and the case should “shake our faith in the justice system”. In a critical analysis of police tactics he goes on to say that “regardless of the guilt or innocence of Lundy, David Bain and Teina Pora, the fact their original convictions were unsafe means the police are failing the public.” He says the police are eager to ensure convictions at any cost, especially in murder cases and there are signs the public view the police as being affected by ‘noble cause corruption’ or a ‘corruption of zealousness’.[83]

References

  1. Murder accused owed $2 million”TVNZ. 19 July 2001. Retrieved 18 May 2013.
  2. Lundy loses appeal, sentence increased”The New Zealand Herald. 13 August 2002.
  3. Mark Lundy’s sister hopeful over appeal bid TVNZ OneNews 20 June 2013
  4. Privy Council quashes Mark Lundy double murder convictions, TVNZ News 7 October 2013
  5. Lundy’s sister constant in supporting him”co.nz. Retrieved 1 February 2014.
  6. Mark Lundy and the Presumption of Innocence, Lawfuel, 12 October 2013
  7. Mark Lundy found guilty in retrial for murder, Stuff, 1 April 2015
  8. Mark Lundy murder retrial: Week one in review, Stuff 14 February 2015
  9. Mark Lundy trial: the first week, Radio New Zealand, 16 February 2015
  10. Mark Lundy murder retrial: Week one in review, Stuff 14 February 2015
  11. Clues still sought in Lundy caseTVNZ. 24 February 2001.
  12. What the jury didn’t hear, Mike White, North & South magazine, p 34
  13. Conflicting evidence of marriageTVNZ. 15 February 2002. Retrieved 17 July2013.
  14. Lundy trial: Witness denies deal on vineyard, New Zealand Herald, 17 February 2015
  15. Mark Lundy murder retrial: Week one in review, Stuff, 14 February 2015
  16. Mark Lundy murder retrial: Shift in alleged time of killings highlighted, Stuff, 11 Feb. 2015
  17. Mark Lundy retrial: Trial turns to money matters, New Zealand Herald, 17 February 2015
  18. Mark Lundy murder retrial: Day 7, Stuff 17 February 2015
  19. Mark Lundy retrial: Trial turns to money matters, New Zealand Herald, 17 February 2015
  20. The Investigator: Development in Mark Lundy double murder”. Throng. 17 June 2009.
  21. In-depth look at Lundy case, DominionPost, 9 October 2013
  22. Circumstantial evidence vital in Lundy case, says prosecutor, NZ Herald, 21 March 2002.
  23. Lundy committed to trialTVNZ. 19 July 2001. Retrieved 17 July 2013.
  24. Mark Lundy murder retrial: Prostitute – Lundy was nice, Stuff 12 February 2015
  25. Lundy to be tried for murders, NZ Herald, 19 July 2001.
  26. The Lundy murders, Crimeco.nz. Retrieved 17 July 2013.
  27. Lundy keen to get bail hearing as soon as possible, Radionz.co.nz. Retrieved2013-10-09.
  28. Lundy prosecution calls final witness, NZ Herald. 13 March 2002.
  29. The Lundy murders: what the jury didn’t hear , Mike White (Feb 2009). North & South.
  30. Circumstantial evidence vital in Lundy case, says prosecutor, NZ Herald, 21 May 2002
  31. Mark Lundy trial: Scrutiny on police conduct continues, NZ Herald, 25 February 2015
  32. Christine Lundy repeatedly struck in her bed, court hears, 16 July 2001.
  33. Brain Tissue at Crux of Lundy Decision”. Stuff.co.nz.
  34. In-depth look at Lundy case, Dominion Post, 9 October 2013
  35. Brain Tissue at Crux of Lundy Decision, Stuff.co.nz.
  36. The Lundy murders: what the jury didn’t hear North & South, February 2009, p 39
  37. What the jury didn’t hear, Michael White, North & South, p 34
  38. Mark Lundy again takes the standTVNZ. 18 March 2002.
  39. Court of Appeal decision
  40. Operation summer: My time with Lundy, New Zealand Herald, 4 April 2015
  41. The courage of conviction, New Zealand Herald, 10 January 2003
  42. Reward offer for evidence in Lundy case”co.nz. 1 September 2009.
  43. Mark Lundy murder retrial: Day 11, Stuff 23 February 2015
  44. Did Mark Lundy kill his wife and daughter?”tvnz. Retrieved 5 January 2012.
  45. Doco makes fresh claims in Lundy case”TVNZ. 18 June 2009.
  46. Brain tissue at crux of Lundy decision, Manawatu Standard 8 October 2013
  47. Operation summer: My time with Lundy, New Zealand Herald, 4 April 2015
  48. In-depth look at Lundy case, Dominion Post, 9 October 2013
  49. Brain tissue at crux of Lundy decision, Manawatu Standard 8 October 2013
  50. Lundy keen to get bail hearing as soon as possible, Radio New Zealand, 8 October 2013
  51. Lundy’s appeal – the three questions”The New Zealand Herald. Retrieved 17 July 2013.
  52. Lundy back on trial after 12 years, New Zealand Herald, 8 February 2015
  53. Privy Council quashes Mark Lundy double murder convictions”. 7 October 2013.
  54.  Mark Lundy and the Presumption of Innocence, Lawfuel, 12 October 2013
  55.  Lundy retrial: Pinpointing time of death a ‘complete fiction’, NZ Herald, 16 March 2015
  56.  Crown alleges Mark Lundy’s wife, daughter, killed later than previously thought, NZ Herald, 9 February 2015
  57.  Mark Lundy murder retrial: Day three, Stuff.co.nz, 11 February 2015
  58.  Mark Lundy murder retrial: Shift in alleged time of killings highlighted, Stuff 11 February  2015
  59.  Mark Lundy Murder Retrial: Focus on Finances, Dominion Post, 16 February 2014
  60.  Mark Lundy Murder Retrial: Week 4, Dominion Post, 2 March 2015
  61.  Mark Lundy retrial: Day 17, Dominion Post 3 March 2015
  62.  Mark Lundy Murder Retrial: Week 4, Dominion Post, 2 March 2015
  63.  Mark Lundy retrial: Day 19, New Zealand Herald, 5 March 2015
  64.  Mark Lundy retrial: Ghosts haunt the courtroom, New Zealand Herald, 7 March 2013
  65.  Mark Lundy murder retrial: Shirt under spotlight, Dominion Post, 17 March 2015
  66.  Mark Lundy retrial: Shirt centre stage, New Zealand Herald, 18 March 2015
  67.  Lundy murder investigation looked at man with mental health problems, NZ Herald, 20  March 2015
  68.  Mark Lundy retrial: The evidence, and the defence, New Zealand Herald, 10 February 2015
  69.  Lundy murder investigation looked at man with mental health problems, NZ Herald, 20 March 2015
  70.  Mark Lundy murder retrial: Day 13, Stuff 25 February 2015
  71.  Mark Lundy murder retrial: Day 13, Stuff 25 February 2015
  72.  Mark Lundy phoned home after bodies discovered, New Zealand Herald 10 February 2015
  73.  Mark Lundy murder retrial: Day two, DominionPost, 10 February 2015
  74.  http://www.stuff.co.nz/national/crime/67554693/verdict-in-the-mark-lundy-retrial-for-murder.html
  75.  Mark Lundy to appeal double-murder conviction, New Zealand Herald, 29 April 2015
  76.  Mark Lundy tried to appeal scientific evidence to the Supreme Court, Stuff 17 April 2015
  77.  Mark Lundy to appeal double-murder conviction, New Zealand Herald, 29 April 2015
  78.  Mark Lundy convictions have cost taxpayer nearly $6 million, Stuff
  79.  Mark Lundy a bad actor who tried to lie his way out of jail – Nigel Latta, TVOne 2 April 2015
  80.  What the jury didn’t hear, Mike White, North & South magazine, February 2009
  81.  Operation summer: My time with Lundy, New Zealand Herald, 4 April 2015
  82.  Lundy, The Actor, LawFuel, 3 April 2015
  83.  NZ police are failing the public, New Zealand Herald, 5 April 2015

Scott Watson wants access to the media, but just got deleted from wikipedia

When there has been a serious miscarriage of justice, media scrutiny can sometimes lead to a public crusade in favour of the alleged perpetrator.  Arthur Alan Thomas, David Bain and Teina Pora all received intense media scrutiny and, eventually, were freed from prison. But it took a long time and they all needed public exposure and someone crusading on their behalf.  Joe Karam (left), for instance, became an extraordinary advocate on behalf of David Bain. He visited Bain in prison over 200 times and wrote four books about the case.

Investigative journalist, Mike White (below), has also been something of a crusader. He raised doubts about the original conviction of Mark Lundy in a North & South article titled “The Lundy Murders: what the jury didn’t hear”.  Mike whiteAccording to the NZ Herald, Lundy would never have got to the Privy Council if it hadn’t been for Mike White’s article – see Operation summer: My time with Lundy.

Then there’s Scott Watson – in prison for the murder of Ben Smart and Olivia Hope in 1998. For the last 17 years he has also maintained his innocence and appealed his conviction all the way to the Privy Council in Britain. A book published by Mike Kalaugher in 2001, a television documentary by Keith Hunter in 2003, and an IPCA report about the case in 2010, all cast considerable doubt on the integrity of the police investigation. Former ACT party leader, Rodney Hide, said Trial by Trickery by Keith Hunter was the most shocking book he had ever read and that it undermined his faith in the New Zealand justice system.

All of this was to no avail. The Privy Council declined to even consider Watson’s case. So now he wants to be allowed to talk to Mike White, in the hope this puts his case back in the spotlight and someone picks up the cudgels on his behalf. But Corrections is refusing to allow the interview on the grounds that the interests of the victims outweigh the public interest – despite the fact that Olivia Hope’s father wants to be present at the interview. So Watson is seeking a judicial review of Corrections’ decision.

Wikipedia page vandalised

Scott WatsonThe basics of the case both for and against Scott Watson (right) are described on his Wikipedia page.  Well, they were – up till 19 May 2015 when most of the page was deleted.  Scott Watson’s Wikipedia page used to read like this. Now it reads like this. Mark Lundy’s Wikipedia page and Teina Pora’s Wikipedia page were also vandalised.  So was the Wikipedia Crime in New Zealand page.

The editor who made these deletions is an Australian calling himself Nick-D. Mr D blocked me from editing Wikipedia indefinitely in May 2013. However, the blocking process is ineffective and allowed me to continue editing under a different pseudonym. Whenever Mr D finds out I have contributed something to an article, he deletes the new content and blocks the new pseudonym.

This is all very strange because Nick-D has a quote at the top of his user page from Canadian writer, Margaret Atwood. It reads:

“There’s one characteristic that sets writing apart from most of the other arts – its apparent democracy, by which I mean its availability to almost everyone as a medium of expression.”

Hypocritical behaviour

So Nick-D appears to believe that writing and editing Wikipedia is part of ‘democracy’ which should be available to almost everyone. But when it comes to the availability of Wikipedia articles about miscarriages of justice in New Zealand, that’s where his commitment to democracy stops. The reason for this hypocrisy is demonstrated by another quote on Nick-D’s user page in which he describes his editing strategy like this:

“Arguing with anonymous strangers on the internet is a sucker’s game because they almost always turn out to be – or to be indistinguishable from – self-righteous sixteen year olds possessing infinite amounts of free time.”

Nick-D doesn’t seem to have the skills to edit constructively on Wikipedia – which inevitably involves arguing with anonymous strangers – so he blocks those contributors he doesn’t like or doesn’t agree with. That’s hardly democratic. The point is – Scott Watson is stuffed. Corrections won’t let him talk to Mike White and Nick-D won’t let anyone tell his story on Wikipedia.

Given the contentious nature of Watson’s conviction, he deserves the right to talk to a reputable journalist. He also deserves to have an accurate description of his case on Wikipedia – as do Mark Lundy and Teina Pora.  Why? Because transparency and integrity are the cornerstones of our justice system.   We all need to know what’s going on. Without that, it’s not just Wikipedia that’s blocked – so is society.  If the political system becomes oppressive or the justice system gets it wrong, our democracy is threatened. It depends on freedom of expression and on ordinary citizens having access the media.

Scott Watson’s wikipedia page

Over the years, I have made numerous contributions to the Wikipedia page about convicted murderer, Scott Watson. The information below (photos added) was Scott Watson’s Wikipedia page up until 18 May, 2015. The following day, the page was vandalised by an Australian editor calling himself Nick-D. It is now a stub (very short article) and looks like this. For the full story of Nick-D’s vandalising activities, see Scott Watson wants access to the media, but just got deleted from wikipedia.

Scott WatsonScott Watson (born 28 June 1971) is a New Zealander who was convicted in May 1999 of the murders of Ben Smart and Olivia Hope on his boat Blade on 1 January 1998 although the bodies of Smart and Hope have never been found. Watson is serving a life sentence with a non-parole period of 17 years.[1] In 2000 he appealed unsuccessfully to the New Zealand Court of Appeal. In 2003 his lawyers Mike Antunovic and Greg King took his case to the Privy Council, which found no grounds for a further appeal.[2]

Watson continues to maintain he is innocent and his case remains controversial. A ‘jailhouse’ witness who testified against him at his trial publicly recanted his testimony shortly after the Court of Appeal hearing. A book published by Mike Kalaugher in 2001, a television documentary by Keith Hunter in 2003, and an IPCA report about the case in 2010 all cast considerable doubt on the integrity of the police investigation.

Family background

Chris WatsonScott’s father, Chris Watson (left), was born in Connecticut and came to New Zealand at age 12. He became interested in sailing through a neighbour in Christchurch. Later on the family sailed round New Zealand for 12 years stopping occasionally for six months to work. Scott grew up in this sea faring environment and bought his first yacht at age 20. He built the Blade himself, which became a central feature of the prosecution’s case, on the family’s property in Picton.[3]

Disappearance of Smart and Hope

On 31 December 1997, Ben Smart (21) and Olivia Hope (17) attended an all-night party attended by 1,500 people to see in the New Year at Furneaux Lodge, in Endeavour Inlet, in the Marlborough Sounds, at the northern point of the South Island of New Zealand. Guy Wallace served drinks in the bar that night and also had a boat he used as a water taxi. Around 4.00am, he picked up Mr Smart and Ms Hope near the yacht, Tamarack in his “taxi”. They were upset that all the berths on the Tamarack had been taken and were eager to get back to shore to find somewhere to sleep. At the time, Wallace had three others on board, Hayden Morresey, Sarah Dyer and a single man who offered Smart and Hope a place to stay on his yacht. Wallace let Smart and Hope off with the single man and then dropped the two other people off at their bach. That was the last time anyone saw Ben Smart and Olivia Hope alive.[4] They were reported missing by Gerald Hope, Olivia’s father, on Friday 2 January.

The police investigation

PopeWallace is adamant he dropped Smart and Hope off at a wooden ketch with two masts, a description which was supported by Hayden Morresey. He also described the unknown man he dropped them off with as unshaven with wavy medium length hair.[5] Detective Inspector Rob Pope (right) took over the police investigation, known as operation Tam, and decided within two weeks that Scott Watson was the unknown man – even though Watson was clean shaven, had short hair and owned a single masted steel sloop (photo below). He said Watson “had the right sort of agenda and pedigree” apparently referring to his criminal record. Just a few days after he arrived in Marlborough, with hundreds of witnesses still to interview, Pope made the statement: “We can be fairly certain that this (two masted) ketch does not exist.”

KetchA number of witnesses who subsequently came forward with sightings of the ketch were either told their information wasn’t wanted or their statements were not followed up.[6] Former detective Mike Chappell, who worked on the case, later claimed officers had been told not to follow up sightings of the two-masted ketch.[7]

The police were also accused of spreading rumours about Watson before they arrested him and using heavy handed tactics on witnesses. Guy Wallace was interviewed for three hours and was repeatedly accused of lying with suggestions by police that he was involved in the couple’s disappearance. Amelia Hope, Olivia’s sister, who had also been at the New Year’s Eve party was reduced to tears by police when they interviewed her.[8]

Watson’s previous convictions

Prior to these events, Watson had 48 convictions,[9][10] mainly from when he was a teenager and mostly for fairly minor offending. This included convictions for burglary, theft, cannabis offences, two of possessing an offensive weapon, and one of assault when he was 16. He had been imprisoned for two short periods in 1989 and 1990. He had just one minor conviction in the eight years leading up to the disappearance of Mr Smart and Ms Hope in 1998.[11]

The Trial

Scott Watson was arrested for the murders on 15 June 1998, about five months later. The trial lasted three months and the Crown brought nearly 500 witnesses in front of the jury. Much of the evidence during the trial in 1999 focussed on the yacht Mr Smart and Miss Hope were alleged to have boarded. The Crown argued it was Watson’s one-masted yacht Blade, but other witnesses including Guy Wallace, maintained he dropped the young pair off at a two-masted ketch.[12] Gerald Hope, who sat through the trial, feels much of the prosecution case was “pure theatre”. There was a prolonged interrogation of his daughter, Amelia, until she burst into tears which Mr Hope described as emotional manipulation of the jury.[13]

Prison witnesses

The testimony of two prisoners, Witness A and B, who had both been in jail with Watson prior to the trial assisted the prosecution case. Both had their names and identifying details suppressed. Witness A shared a cell with Watson at Christchurch’s Addington Prison for several weeks shortly after Watson’s arrest in June, 1998. Under oath, he told the jury that Watson had demonstrated the way he forced Olivia Hope into submission and then strangled her. His evidence, along with that of a second prisoner, was later described in a police-authorised book as “the bombshell of the Crown case”.[14] Witness B never shared a cell with Watson but made a similar claim.

Timing – the two trip theory

Another water taxi driver, Donald Anderson, says he took Scott Watson to his boat in the early hours of New Year’s Day but was vague about the timing. Watson told police he thought he went back to his boat with Donaldson at about 2.00am, but wasn’t wearing a watch and wasn’t sure about the time. Other witnesses testified that Watson was involved in an incident ashore about 3am – which was never in dispute. However, the Crown took Watson’s hazy estimate of 2.00am as accurate and argued that he returned to shore soon afterwards and then got involved in this incident.[15]

This two trip theory was introduced late in the trial rather than being disclosed by police before it began. This meant it could not be tested by the defence. As a result, hundreds of witnesses who were asked about their movements that night were not asked whether they had seen Watson making his way back to shore in the early hours of the morning. If Watson made only one trip, this suggests he made the trip with Donald Anderson after 3.30am and so could not have been the man on Guy Wallace’s water taxi at 4.00am.[15]

The DNA evidence

olivia hopeStrands of hair, alleged to be from Olivia (right), were found on a rug in Watson’s boat. DNA analysis found that one blonde hair was 28,000 times more likely to have come from Olivia than an unrelated blonde female chosen randomly from the population. However, when the ESR scientist first examined the hairs, she found dark ones. Blonde hairs were only found during a second inspection seven weeks later. There was also an unexplained 1cm-long cut in the plastic bag that contained hairs taken as reference samples from Olivia’s bedroom. This raised the possibility that contamination had occurred or that the blonde hairs were planted.[16]

Conviction

Despite the inconsistencies in much of the evidence presented at the 11 week trial, Watson was convicted of the murders in May 1999.[17]

Court of Appeal 2000

Watson appealed against the convictions, and the case went to the Court of Appeal in April and May 2000. The three Appeal Court judges heard submissions but decided there was no new evidence to recommend a second trial. The Court noted: “It is beyond question that the case against him [Watson] depended substantially on the correctness of those identifications (by Wallace and McNeilly), because if they were incorrect the Crown case was seriously undermined.”[18] They also noted that Watson “made statements to two inmates on separate occasions, each of which constituted admissions of responsibility for the killing of both Ben Smart and Olivia Hope. In one instance he gave a graphic description and demonstration of how the young woman met her death.”[19]

Witnesses recant testimony

In November 2000, after the Court of Appeal hearing, Witness A contacted the Weekend Herald to say his evidence given under oath was “nothing more than an act”. He said he was being threatened by gang members in prison; he was coming up for parole and was put under pressure by police to testify and “I agreed on the basis that my life was getting threatened”.[14] The witness changed his story at least twice more which led Watson’s lawyers to conclude he was completely unreliable.[12]

Witness B never spoke publicly about the case. He had an extensive criminal history but never actually shared a cell with Watson. Journalist Mike White met him and reported that police gave him a phone and car in exchange for his “testimony”.[20]

Another key witness was the Furneaux Lodge bar manager, Roz McNeilly who testified at the trial that she served an unknown man in her bar on New Year’s Eve. She has also recanted her testimony after seeing a police photo which showed Watson was shaved and had short hair. She subsequently signed an affidavit stating that the man she served was not Watson[12] and that the man she served that night had shoulder-length hair and two days’ facial growth. Her description is similar to that of water taxi driver, Guy Wallace, who delivered Miss Hope and Mr Smart, and the man presumed to be their killer, to the boat in Endeavour Inlet.[12] When she realised her mistake she said: “I thought I was helping to catch a murderer – now I feel I’ve put an innocent man in jail.”[13]

Privy Council

Watson then appealed to the Privy Council in the United Kingdom. The two main grounds for the appeal were the reliability of evidence identifying Watson as the killer and the way the jury was directed about the evidence by the trial judge. Justice Heron allowed the jury to hear evidence of three witnesses who claimed Watson talked about killing a woman before the murders occurred after that evidence had earlier been ruled inadmissible. The judges on the Privy Council were unconvinced and, in November 2003, ruled there was “no substantial trial error or fresh evidence” and declined to hear the case.[12]

After the decision, high profile defence lawyer, Greg King, who assisted at the Privy Council said “I think it’s one of the most questionable convictions entered by a New Zealand Court.” Watson’s primary lawyer, Mike Antunovic, described the case as one of New Zealand’s “greatest miscarriages of justice”.[21]

Appeal to Governor General

In 2008 Watson wrote to the Governor-General of New Zealand, seeking a pardon under the Royal Prerogative of Mercy. Five years later in July 2013, Justice Minister Judith Collins announced that the governor-general had rejected application for mercy on her advice.[22]

Impact of Teina Pora Privy Council decision

In March 2015, Scott’s father Chris Watson said his son’s lawyers had been assembling a team of researchers, scientists and a private investigator. He said Teina Pora‘s success at the Privy Council has given his son’s legal team hope that they can do the same.[23]

Books & documentary

Questions have also been raised about the manner of the police investigation by researchers who have written books about the case. In 1999, journalists Jayson Rhodes and Ian Wishart published Ben and Olivia: What Really Happened. It offers a detailed critique of the trial and concludes “it would be a brave person who believes guilt has been proven beyond all reasonable doubt”.[24]

Marlborough MysteryIn 2001, dedicated yachtie Mike Kalaugher, published The Marlborough Mystery,[25] which focusses on the yachting-related evidence. It throws into question many aspects of the police enquiry and maintains that moving the focus of the investigation onto Scott Watson distracted the police from the pursuit of the mystery ketch.[26]

In 2003, Auckland journalist, Keith Hunter, produced a television documentary called Murder on the Blade? criticising police for the methods they used to obtain the conviction of Scott Watson. It attracted nearly 550,000 viewers and won an award for best documentary at the New Zealand Screen Awards.[27] After the TV documentary was shown, the percentage of New Zealanders who though Watson was guilty dropped to 44%.[28]

Trial by TrickeryIn 2006 Hunter followed up with a book called Trial by Trickery in which he describes the conviction of Watson as “New Zealand’s most blatantly dishonest prosecution”.[29] Dr Robert Moles, former Associate Professor at Adelaide University Law School, described Trial by Trickery as “a masterpiece of critical and scholarly analysis. The reasoning is methodical and rigorous. The argument is sustained and compelling.”[30] Former ACT party leader, Rodney Hide, said Trial by Trickery was the most shocking book he had ever read and that it undermined his faith in the New Zealand justice system.[31]

North & South article

Mike White was a reporter on the local newspaper, the Marlborough Express, at the time of the murders. He spent a lot of time covering the case and got to know the families involved. Initially, he thought Watson was guilty. But in 2007, he authored an article which appeared in North & South article titled Sounds of Disquiet. He quotes Olivia’s father, Gerald Hope, who told him:

“What we got was a conviction but we never got the truth. Nothing ever was confirmed, it was all circumstantial, there was no hard evidence. “I’m not saying [Scott Watson] is not guilty. What I’m saying is let’s clear up the doubt.” [32]

Mr Hope publicly expressed a wish to meet with Scott Watson and look him in the eye. Watson agreed to this but the Corrections Department would not allow it. In January 2014 Watson filed legal papers in the High Court arguing that the Department of Corrections had illegally delayed making a decision which would allow Gerald Hope to visit him.[32]

IPCA Report 2010

A report by the Independent Police Conduct Authority in 2010 was highly critical of aspects of the investigation, led by Deputy Commissioner Rob Pope. In particular it criticised the way police persuaded witnesses to identify Watson as the man seen with Hope and Smart on the night they disappeared. It says the police used photograph montages which breached many of the rules related to proper investigation methods and “exposed the integrity of the investigation to justifiable criticism and to the drawing of inferences about intention and motivation”. The police were forced to apologise to Watson’s father, Chris Watson, after taking four years to deal with an earlier complaint to the IPCA that Pope committed perjury when swearing affidavits to get search warrants. In a press release, IPCA head Justice Lowell Goddard stated that “some actions of police fell short of best practice, and at their most serious, had the potential to influence witnesses”. The report itself was more explicit and found flaws in almost every aspect of the work done by police in their effort to link Watson to the murders.[28]

References

  1.  Watson appeal goes to courtTelevision New Zealand. 4 July 2000.
  2.  Privy Council rejects Watson case. TVNZ.
  3.  Mike White,  Sounds of Disquiet, North & South magazine, December 2007, p 54.
  4.  Mike White,   Sounds of Disquiet, North & South magazine, December 2007, p 46.
  5.  Mike White,   Sounds of Disquiet, North & South magazine, December 2007, p 48.
  6.  Mike White,  Sounds of Disquiet, North & South magazine, December 2007, p 49.
  7.  Inquiry slams police over handling of Watson case, New Zealand Herald, 15 August 2010
  8.  Sounds of Disquiet, North & South magazine, December 2007, p 50.
  9.  Scott Watson’s wife talks of her love,  TVOne News. 27 June 2004.
  10.  http://www.presscouncil.org.nz/display_ruling.php?case_number=2029
  11.  Mike White, Sounds of Disquiet,  North & South (261): 46–56.
  12.  Watson case rejected by Privy Council, New Zealand Herald, 6 November 2003
  13.  Mike White, Sounds of Disquiet, North & South magazine, p 51
  14.  Witness confesses: I lied about Scott Watson, New Zealand Herald 4 November 20000
  15.  Who killed Ben and Olivia? Sunday Star Times, 17 February 2008
  16.  Who killed Ben and Olivia? Sunday Star Times, 17 February 2008
  17.  Murder, they saidThe Listener (January 5–11, 2008 Vol 212 No 3530)
  18.  Who killed Ben and Olivia?, Sunday Star Times, 17 February 2008
  19.  The Queen v WatsonNZCA 46; [2003] NZAR 193. 8 May 2000.
  20.  Mike White, Sounds of Disquiet, North & South magazine, p 52
  21.  Mike White, Sounds of Disquiet, North & South magazine, p 55
  22.  No royal pardon for Scott Watson, Stuff 9 July 2013
  23.  Scott Watson attempts to clear name, Radio New Zealand, 7 March 2015
  24.  Who killed Ben and Olivia? Sunday Star Times, 17 February 2008
  25.  Sounds case: Police about-turn on mystery ketch, New Zealand Herald, 18 November 2007
  26.  The Marlborough Mystery, Mike Kalaugher, Random House.

Corrections stats show more prison officers smoking dope than prisoners

CannabisTVNZ journalist, Ryan Boswell, wrote to the Corrections Department recently asking how many prisoners and how many officers were tested for drug use in the last two years – and how many returned positive tests.   Corrections released information to TVOne which appears to show that more prison officers are now smoking dope than prisoners.

In 2014, Corrections conducted 10,971 tests on prisoners, of which 708 were positive for drugs.  In other words, 6.4% of all prisoners tested were positive, mostly for cannabis.  In the same period, Corrections tested only 26 prison officers, of which two returned positive results. In other words, 7.7% of prison officers tested positive.

600 prison staff smoking dope?

Let’s put this into context. There are approximately 8,500 prisoners. If 6.4% out of the 8,500 are smoking dope, that’s 544 prisoners.  Corrections has a similar number of employees, about 8,000, although they don’t all work in prisons. 7.7% of 8000 is 616.  So it looks like there’s slightly more Corrections staff smoking dope than prisoners.

When TVOne ran their story, Corrections crackdown on drugs paying dividends, they didn’t mention this. They focussed on the fact that the number of prisoners returning positive drug tests has dropped dramatically.  In 1998 when random testing was introduced, 30% of prisoners were caught using. Now it’s only 6%. That’s definitely progress – of sorts. Now prisoners are using at the same rate as prison officers.

Here’s a bit more context. The 26 officers drug tested in the last 12 months were at 13 different prisons. In other words, Corrections selected only two officers at each of those 13 prisons to submit to a random test. That’s too small a sample to provide meaningful results.  If 500 tests were conducted on prison officers every year, that would provide more certainty about the percentage of staff smoking dope.   It may well confirm that about 600 officers are druggies.

Reluctance to test own staff

Chief custodial officer, Neil Beales, told TVOne that Corrections has zero tolerance for its staff using drugs – the two who returned positive drug tests either resigned or were dismissed.  If the reality is that 600 officers are smoking dope, it would be more accurate to say that Corrections has almost zero tolerance for testing its own staff.

Wiri

Instead of getting rid of staff by drug testing them, the Government has announced that hundreds of prison staff will lose their jobs when older units in Waikeria, Tongariro-Rangipo and Rimutaka Prisons are shut down in the next few months. These units will be closed because prisoners will be transferred to  a brand new 960 bed prison in South Auckland which is about to open. The Wiri prison will be run by private company Serco, and of course they need to make a profit. So Corrections is laying off its staff so that a British company can profit at Kiwis expense – a company with a reputation for  defrauding the British government, and that prison reformers want banned from bidding for Government contracts.

Corrections Association industrial officer Bevan Hanlon said moving prisoners to Wiri and closing down prison wings was, put simply, the privatisation of Corrections jobs. He was right. Labour MP, Kelvin Davis pointed out the Wiri prison cost the taxpayer $900 million and said: Private prison operator Serco will be “laughing all the way to the bank“. He was right too.

Myths about rehabilitation

New Corrections Minister, Peseta Sam Lotu-Iiga said:

“Prisoners have a much better chance of successful rehabilitation in modern facilities where they have access to education, training and employment opportunities.”

There’s a lot to be said about whats wrong with the Department’s rehabilitation programmes, but one thing’s for certain – rehabilitation has little to do with buildings old or new. It has to do with turning peoples live around – something that can only done by compassionate skilled staff – not prison officers who are stoned on the job.

20 Corrections staff who could have been prosecuted over the death of Jai Davis

David CrerarWhat’s wrong with the police? For the second time, they have announced they will not be charging anyone over the death of Jai Davis in Otago prison. Davis died two days after he smuggled drugs into the prison by ‘internal concealment’ in February, 2011.

At the coroner’s inquest in November last year, Detective Inspector Steve McGregor said charges against Corrections officers had been considered – for manslaughter and criminal nuisance – but eventually claimed the evidence didn’t meet the threshold for a successful prosecution.

In reality, there is no threshold – the Solicitor General just made that up. But after the inquest, Inspector McGregor announced police would reconsider their decision not prosecute. Today, two months later, the coroner, David Crerar (right), announced the police have advised that no charges will be laid afterall. It seems the evidence still doesn’t meet the non-existent ‘threshold’.

The prison protocol

How is this possible? The Corrections Department has a written protocol called: “Management of prisoners suspected of internally concealing unauthorised items”. It says that the prisoner should be placed in a ‘dry’ cell – one without a toilet. When the prisoner needs to ‘go’, they give him a cardboard potty. Officers then examine the contents so they can retrieve the drugs and charge the prisoner with bringing in the ‘unauthorised item’. The policy also says that “a Medical Officer must be informed”. The reason is obvious – a prisoner with drugs inside might die. He needs to be examined and, if necessary, sent to hospital for an x-ray.

The Customs Service has a similar protocol and they advise that “no person has ever died while being detained by Customs” when following this policy.

Three prison managers involved

In Davis’ case, there were at least 20 employees at the Otago prison who ignored the protocol. Three of them were prison managers. The most senior was acting prison manager, Chris Gisler, who had been with Corrections for 21 years. Believing that Davis would be concealing drugs when he arrived, Gisler gave the order to segregate him in a dry cell ‘for the purpose of security, good order, or safety of the prison’ under section 58 of the Corrections Act. He probably could have saved Davis’s life by using section 60 of the Act – ‘segregation for the purpose of medical oversight’.  But he didn’t think of that.

Gisler was off duty when Davis was brought in so he delegated the task to Operations Manager Ann Matenga and Security Manager Michael Fitzgerald. On Friday 11th February, 2011 when Mr Davis arrived at the prison, Ann Matenga signed the segregation order stating:

“I will notify the Medical Officer of the prison of this segregation within the applicable timeframe after the above named prisoner is placed in a cell…”

The applicable timeframe was three hours. Ms Matenga was on duty all weekend but never called the doctor. At the inquest she claimed she didn’t know that ‘medical officer’ meant ‘doctor’.

Michael Fitzgerald was the Security Manager. He briefed the security team that Davis was coming in with drugs on board. One of his team then went to the prison health centre and advised the nurses on duty of the situation. The reality was that Gisler and Fitzgerald were totally focussed on security issues – preventing Davis passing the drugs to other prisoners – so they didn’t even think about calling the Medical Officer. Nor did they check with Ann Matenga to see if she had done so. Not one of these three managers thought it necessary to advise the prison doctor that a man was being brought in who was at risk of dying from a drug overdose. It wasn’t even discussed.

Six prison nurses involved

Six different nurses were on duty over the weekend – three of them on the day Davis died. They all knew Davis was in the dry cell because he was suspected of concealing drugs internally.
None of them called the doctor – not even on the Sunday morning when the prison officers on duty noticed Davis had deteriorated and looked seriously unwell. So unwell, that one said:

“He looked like a corpse. His eyes were sunken and he had the cold sweats. .. his breath smelt like faeces… and he had slurred speech as well. He looked as though he should have been in hospital.”

Because the officers were concerned, nurses checked on Davis three times that morning but did nothing. One of them, Gayle Catt, told Corrections Inspector David Morrison, that…

“(Davis) seemed to slightly deteriorate from 7-30 to 8-30am. My concern was that he would go unconscious but officers would think he was asleep.”

Three years later at the inquest, she’d forgotten she said this and claimed: “He was well; he was absolutely well every time I saw him. I had no concerns about his physical safety whatsoever.”

Then there’s Janice Horne, the last nurse to see Davis alive. She was on the afternoon shift on Sunday and only went to see Davis once in her eight-hour shift – at about 4 p.m. Even then, she didn’t go into his cell to examine him. She spoke to him though a small flap in the cell door. Afterwards, she made an observation in his Medical notes that he appeared to be under the influence of drugs…

“because of the slow movements that he was making… she had a conversation with the unit officer where she stated to the officer, Mr Davis ‘looks stoned’.”

Nurse Horne didn’t seem to realise how serious the situation was. She carried on with her other duties, knocked off work at 8 p.m. and went home. Davis appears to have died two hours later. His last recorded movement on the CCTV tape occurred at 10.01pm. A few months after Davis died, Janice Horne resigned and went to live in Australia.

The health centre manager

Despite the risk posed by internally concealing drugs, not one of the six nurses on duty over the weekend called the prison doctor. Not one of them even bothered to consult with the health centre manager, Jill Thompson, who was the head nurse. If they had, Ms Thompson could possibly have saved Davis’ life. When she was interviewed after his death, she said:

“As there was clear knowledge that this person was concealing drugs, why did he come here in the first place? The prison is 45 minutes away from a hospital. If drugs had exploded in a prisoner’s gut, we would not be able to get (him) to the hospital in time…”

That’s her clinical opinion on what should have happened. But it didn’t happen – because Jill Thompson wasn’t at work on the Friday afternoon when Davis was brought in. She wasn’t away at a managerial seminar. She wasn’t sick. Three years later when asked by lawyers at the inquest where she was on that Friday, Ms Thompson claimed she didn’t remember.

The police didn’t seem to realise the significance of Jill Thompson’s unauthorised absence. In the course of a three year investigation, they never even asked her where she was that day. Perhaps she went shopping. The point is she abandoned her legal duties and Mr Davis died. That’s called negligence and it’s potentially a criminal offence. But Ms Thompson was never prosecuted. She didn’t lose her job. She wasn’t reprimanded by Corrections. She wasn’t even questioned by police.

Ten prison officers involved

At least ten Corrections officers were also aware that Davis had drugs on board – and could have called the doctor. Five of them escorted Davis from the prison gate to the At Risk Unit. One of them, Chris Dalton, wrote on Mr Davis’s At Risk management plan “information received from operational intelligence unit that prisoner is concealing drugs on person.” He told police it was his role to ensure the safety of both staff and prisoners and “if anything needs to be done when there is no manager, it falls upon me to action that request.” There was no manager, at least no health centre manager. But Dalton didn’t call the doctor either.

Another officer, James Neill testified that he was briefed by security manager Michael Fitzgerald. He said he then went over to the prison health centre and advised two nurses that “a prisoner was coming in suspected of concealing drugs”. Mr Fitzgerald showed one of the nurses a document titled “Advice to Prisoner Suspected of Concealing” and said “a medical officer is required to sign it.” But the medical officer wasn’t there. Mr Fitzgerald took the form away – so no one signed it. (The medical officer was hardly ever there. See Prison deaths linked to Corrections refusal to employ sufficient doctors.)

There were also half a dozen other prison officers on duty in the At Risk Unit on the day Davis died. Two or three of them were concerned that Davis had deteriorated and should have been taken to hospital. But none of them made the call – they all thought it was the nurses’ job.

The police have a job too – to prosecute those responsible when their negligence contributes to someone’s death.   At the inquest, Senior Sgt Colin Blackie who conducted the police investigation, gave the impression that, at the very least, he would have prosecuted some of the nurses. But he was taken off the case. The harsh reality is that no one in the Corrections Department has ever been prosecuted over a so-called ‘unnatural death’ in prison.

Detective who wanted to prosecute prison staff taken off case

BlackieNo one in the Corrections Department has ever been prosecuted over an ‘unnatural death’ in prison. In what could have been the first case, Detective Senior Sergeant Colin Blackie (right), who conducted the police investigation into the death of Jai Davis, wanted to prosecute prison staff who allowed Davis to die from a drug overdose. Despite a wealth of evidence showing prison managers, officers and nurses all failed in their duty of care, Mr Blackie was taken off the case and no one was prosecuted.

Davis died in Otago prison in February 2011 after smuggling in drugs – internally.  At the coroner’s inquest in November last year, Sergeant Blackie blamed dysfunctional relationships within the prison between management, officers and nurses.  He made it very clear he thought individual staff at Corrections should have been charged.  He told the coroner:

“There were clearly some nurses who either by their own admission or by statements of others, were not affording Mr Davis the care that he should have got… that he could not access of his own accord… (He) should not have died in that prison.”

Taken off the case

Towards the end of his investigation, Mr Blackie went on leave for two months.  When he returned, he was taken off the case. He told the inquest:

“I was informed that I shouldn’t have anything to do with this investigation”.

Steve McgregorHis place was taken by Detective Inspector, Steve McGregor, (left) who up till then had had almost no involvement. Mr McGregor appears to have taken over the job of preparing the police report and recommendations on the Davis case which went to the police prosecutor – who then decided not to charge anyone with anything.

The police could have consulted the Solicitor General for a Crown opinion on the case. They didn’t bother. It seems they didn’t want to prosecute anyone and justified this by claiming the evidence didn’t meet the threshold in the so-called evidential test.  In reality there is no evidential test – it seems police simply didn’t want to prosecute because, inadvertently, they also contributed to his death and their own behaviour could have been called into question.

Testimony of Neil Jones-Sexton

Corrections ‘intel’ (from prison phone monitoring) revealed Davis was going to turn himself in to Dunedin police on an outstanding arrest warrant – and smuggle drugs into Otago prison by concealing them in his rectum. This information was passed on to police by Corrections Intelligence Officer, Neil Jones-Sexton – by phone and by email.  When the police finally got around to interviewing him two years later, Jones-Sexton told Colin Blackie’s investigating team:

“I felt the information was of such importance that police needed to know immediately and consequently phoned the Dunedin Police…  At some stage I spoke to Sergeant Ritchie, Detective Sergeant Hedges, Detective Trevor Thompson and Police Liaison Officer Judy Powell and possibly other Police Intel staff over the relevant time periods.”

On 9 February, at 3.59pm, Jones-Sexton also sent an email disclosing all the relevant details to the head of the Police Intelligence unit in Dunedin, Sergeant Tony Ritchie. Sergeant Ritchie said he knocked off at 2.00pm and never got the email. At the coroner’s inquest, Jones-Sexton said that after sending the e-mail, he also phoned police again to let them know he had just sent them the disclosure.  He repeatedly told the coroner that he was ‘100% certain’ that he passed on the information prior to formal disclosure by e-mail.

What police knew

Despite Jones-Sexton’s confident assertions, all these police officers denied any prior knowledge that Davis was about to turn himself in with drugs on board.

But there’s definitive evidence that they knew. First, Jones-Sexton’s testimony was corroborated by police intelligence officer, Rennae Flockton who worked under Sergeant Ritchie. There were six police Intelligence Officers in Dunedin and Jones Sexton had daily phone contact with them. Rennae Flockton testified that they all knew that Davis would be turning himself in with concealed drugs. When he turned up at the police station on Thursday 10 February, she and some other intelligence officers went down “to look at him through the mirrored glass” where they speculated about how he might be concealing the drugs.

Second, Jones-Sexton was very thorough. He not only gave the information to police intelligence, he also conveyed it to police escort staff who took Davis to court the next day. He told them to keep Davis away from another prisoner, Dylan Hill, who was also appearing in court on 11 February to prevent Davis from giving the drugs to Hill.  The inquest heard that police at court followed these instructions to the letter.

What police should have done

Senior Sergeant Blackie said that when Davis turned himself in, the Police should have arrested him under the Misuse of Drugs Act which gives police authority to conduct a medical examination and an x-ray. If Davis had refused to co-operate, when he appeared in court the next day, police should have told the Judge that Davis was suspected of internally concealing drugs. Blackie said if they had done that, the judge would have remanded him in police custody – not Corrections custody.

That would almost certainly have saved Davis’ life – because police have a more effective protocol for monitoring drug mules than Corrections; they require four officers to watch the prisoner constantly. Their protocol says:

“The detainee is to be monitored for every second of every minute of every day of the detention. He/she is never to be left unsupervised…  The detainee is to be constantly monitored while asleep.”  

Corrections, on the other hand, only conducted observations of Davis every 15 minutes. The 15 minutes gaps allowed Davis to remove the drugs from the bottle in his rectum and swallow them – to get rid of the evidence. At the inquest, it was suggested he may have done this on three separate occasions before all the pills were gone.

Conclusion

The Police had Davis in their custody for 24 hours before they took him out to the Otago prison and there is no doubt they knew he had drugs on board. Despite this knowledge, no one did anything to help. Numerous Police officers made exactly the same mistake as numerous Corrections officers (and nurses) – they neglected their statutory duty to call a doctor to have Davis examined. What this means is that if police had done their job properly, Davis would never have been sent to Otago prison at all and would, in all probability, still be alive.

Senior Sergeant Colin Blackie wanted to prosecute prison staff. But a public hearing of Corrections ineptitude in court would have exposed similar misconduct by the police.  No wonder he was taken off the case – and no one was prosecuted.

Ombudsman colludes with Corrections to cover up responsibility for ‘unnatural’ prison deaths

The death of Jai Davis in 2011 has highlighted critical deficiencies in the management and nursing culture at the Otago prison. Now there’s an even wider concern. Documentation has come to light showing the Ombudsman colluded with Corrections, albeit unintentionally, to cover up the circumstances surrounding his death which implicate management and nurses at the prison.

This is how it happened. When a prisoner dies suddenly from an unexpected death, this leads to at least three different investigations – one by the Corrections Inspectorate, which is monitored by the Ombudsman; one by the Police, which may be monitored by the IPCA (if there’s a complaint); and finally one by the Coroner. Each investigation has a different focus.  The role of the Inspectorate is to determine whether any Corrections procedures or protocols were breached, and whether any prison officers should be disciplined. The Inspector also makes recommendations to the chief executive to prevent it happening again.

David MorrisonCorrections Inspector David Morrison’s report 

Responsibility for investigating Jai Davis’ death on behalf of the Corrections Inspectorate was given to David Morrison (right).  While interviewing prison staff about the circumstances, he was accompanied by a representative from the Ombudsman’s office. The Ombudsman’s role was twofold: to ensure Mr Morrison did his job properly, and to ascertain whether Mr Davis received appropriate medical care and had been treated humanely while in prison. In other words, the Ombudsman was supposed to ensure the Inspector got to the bottom of what Corrections did right – and what they did wrong.

Mr Morrison never got to the bottom of anything. (Here’s the executive summary of his report.) He was well aware that Acting prison manager, Ann Matenga, had statutory responsibility to advise the Medical Officer that a prisoner had been admitted suspected of having drugs on board – but never held her to account for not doing so. Mr Morrison also failed to make any findings against the nurses, even though they clearly failed to provide Mr Davis with adequate medical treatment.  The only staff he made findings against were two officers who made fictitious observations that Mr Davis was snoring in the early hours of Monday morning – by which time he was already dead.

David Morrison’s recommendations

Mr Morrison refused to point the finger at anyone further up the chain of command. His key recommendation was that:

“The Department of Corrections considers establishing a protocol with the Ministry of Health to facilitate the x-ray of a prisoner where it is suspected a prisoner is internally concealing an unauthorised item that in the opinion of the Medical Officer may place the prisoner’s health at risk.”

Corrections already had a protocol in place to manage that situation. It said that when a prisoner is suspected of internal concealment, the Medical Officer is to be advised. The problem is that since the nurses and prison managers ignored the existing protocol, they could just as easily ignore any new protocol. So that wouldn’t be much help. To address that difficulty, Mr Morrison’s second recommendation was:

“All key prison staff and health service personnel are trained and adhere to the requirements under the Prison Service Operating Manual (PSOM)…”

Great – except that Corrections staff are already trained in the PSOM – it’s like the prison officers’ Bible. All they have to do is look it up to see what to do in any given situation.

The nursing culture at Otago prison

The reality is that Mr Davis’ death had nothing to do with a lack of training.  It had to do with a lack of compassion and personal responsibility. The nurses who ‘treated’ Mr Davis, but refused to call the prison doctor, were all trained health professionals. They have two Bibles of their own – the Nurses Code of Ethics and the Code of Conduct. These describe the ethical and legal responsibilities that nurses have to their patients, irrespective of Corrections Department protocols. The problem was they ignored their ethics and the Code of Conduct because of a culture of incompetence and indifference that operated in the Otago prison health centre.

The only way to change that culture is for the nurses who are guilty of professional misconduct to face a Departmental employment investigation and be brought before the appropriate disciplinary bodies – which would include the Nursing Council and the Heath & Disability Commission. If the police did their job properly, and prosecuted nurses who were guilty of gross neglect, some of them would also be brought before the Court.

But Mr Morrison made no such recommendation.  His 44 page report does not hold anyone to account for their failure to call the prison doctor – despite the fact that this was the most significant act of negligence in a succession of negligent acts culminating in Mr Davis’ death.  In other words, Mr Morrison’s report was a whitewash.

Bev WakemThe Ombudsman’s response

Here’s the crunch. Despite the report’s obvious deficiencies, in September 2011 only six months after Davis died, the Chief Ombudsman, Dame Beverly Wakem (left) wrote to the Chief Executive of Corrections praising the Inspector’s conclusions. She said:

“My investigator monitored the investigation throughout. I have been provided with the Inspector’s final report and… I am of the opinion that the report is fully satisfactory and that the recommendations made by the Inspector are reasonable.”

In hindsight, that endorsement looks increasingly bizarre. At the time it was written, the police had barely begun their investigation.  Who knows what crimes they might uncover? Once the police finally finished (three years later), coroner David Crerar, was able to get on with his inquiry.  After hearing from 58 witnesses, the shortcomings in Mr Morrison’s investigation were disturbingly obvious and led to heated cross-examination at the inquest.

The inquest also highlighted the inadequacies of the police investigation (which led to three complaints to the IPCA), as well as the shoddy treatment provided to Mr Davis by the nurses and prison managers. The coroner was so concerned at the multitude of mistakes by those responsible, he said he intended to make adverse comments about everyone involved including: “Jai Davis, his associates, the police and certain police officers, Corrections management, certain Corrections staff and certain health centre staff.”  

Even the police began to realise they might have got it wrong. On the last day of the inquest, they announced they would review their decision not to lay charges against those involved.

The Ombudsman’s role

Given what we now know about this case, it is hard to understand why the Ombudsman would so quickly, and naively, jump to the conclusion that the report by Corrections Inspector David Morrison was ‘fully satisfactory’.  The Ombudsman’s role is to look after citizens’ interests in their dealings with government agencies – which includes ensuring that prisoners are not subject to cruel or inhuman treatment. But if Dame Beverley’s monitoring of Corrections is so superficial that all she does is send a representative to keep the Inspector company and then endorse his report, she’s not doing her job.  The Ombudsman is supposed to be the citizens’ watchdog. The message this case sends is that the watchdog is little more than a lapdog – one with no teeth.

The reality is that David Morrison’s recommendations completely missed the mark. That could be due to incompetence.  A more likely explanation is that Mr Morrison was trying to protect the reputation and careers of prison management and nurses by minimising the extent of their involvement in Davis’ death.  Why? Because Corrections Inspectors are not independent of those they investigate.  Mr Morrison is part of prison management; he’s hardly going to find fault with his own team.

How independent is the Ombudsman?

But the Ombudsman is independent, theoretically.  She doesn’t work for Corrections – or does she? I’m not so sure anymore. Dame Beverley has endorsed Mr Morrison’s flawed report that makes no findings against prison management. Maybe she doesn’t work for them, but she’s clearly supporting their team.  Here’s a bigger question. Is the lack of independent oversight by the Ombudsman in this case typical of oversight into the Best-Sleeping-Dog-Wallpaper-HD-0007other 90 unnatural deaths which have occurred in prison in the last ten years?

The answer is – nobody knows, because the prisoners are all dead. And they’re not really in a position to lay a complaint. Even if they were – that wouldn’t help much if the watchdog just sniffs around the Corrections Inspector’s feet, and then goes back to sleep.

Solicitor General and police use fabricated evidential test to avoid prosecuting prison officers

Mike HeronThe Solicitor-General, Michael Heron (left) has manufactured an erroneous Evidential Test which the police then use to avoid prosecuting selected offenders. The test is ambiguous, misleading and based on an entirely false premise. It seems to completely confuse the police who then use it to undermine the role of the jury.

The police used this flawed test in their decision not to prosecute any of the Corrections staff who left Jai Davis to die from ‘internally concealed’ drugs in the Otago prison in 2011. As a result, the police never gave a jury the chance to hear the evidence – let alone decide whether any prison officers or nurses were guilty of negligence or manslaughter.

Because they’d been monitoring prisoners’ phone calls, management at Corrections believed Davis had drugs inside him when he was brought to prison on Friday, 11 February 2011; so they placed him in a special observation cell, one with a camera on 24/7. After two days, his condition deteriorated dramatically, but none of the numerous nurses or prison officers responsible for looking after him called a doctor or an ambulance. Steve McgregorAfter a drawn out investigation which took three years, police announced they would not lay charges against anyone involved.  Detective Inspector Steve McGregor (right) claimed the evidence did not ‘meet the threshold required to proceed’.

The evidential test for prosecution

So what is the so-called ‘threshold’ for prosecution? In criminal investigations, police use the Solicitor-General’s Prosecution Guidelines to assist them. But the guidelines are confused and contradictory. For instance, paragraph 5 states:

“The Test for Prosecution is met if the evidence which can be adduced in Court is sufficient to provide a reasonable prospect of conviction – the Evidential Test.  What is required by the evidential test is that there is an objectively reasonable prospect of a conviction on the evidence. The apparent cogency and creditability of evidence is not a mathematical science, but rather a matter of judgment for the prosecutor.”

Talk about confusing.  One sentence uses the word ‘objectively’ as if there was a scientific test which produces a factual, clear-cut result. The next sentence acknowledges that there is no such test and whether to lay charges is entirely subject to the prosecutor’s experience and personal assessment of the evidence.

The confusion in the Guidelines doesn’t stop there. Section 2.3 says:

“They reflect the aspirations and practices of prosecutors who adhere to the United Nations Guidelines on the Role of the Prosecutor (1990) and the International Association of Prosecutors Standards (IAPS) 1999.”

No they don’t. The IAP Standards state:

“In the institution of criminal proceedings, (prosecutors) will proceed only when a case is well-founded upon evidence reasonably believed to be reliable and admissible, and will not continue with a prosecution in the absence of such evidence”.

The focus here is on evidence that is ‘well-founded’ and ‘reliable’.  The IAP Standards don’t even mention an ‘evidential test’, let alone the need for a reasonable prospect for conviction. Neither do the United Nations Guidelines. In regard to criminal proceedings, they state:

“Prosecutors shall not initiate or continue prosecution, or shall make every effort to stay proceedings, when an impartial investigation shows the charge to be unfounded.”

An unfounded charge is one in which the investigation establishes that no crime has been committed. This is an entirely different matter from the Solicitor General’s requirement that, where a crime has been committed, there should also be a reasonable prospect of conviction.

In other words the New Zealand Guidelines are confused and misleading on at least two separate points. In regard to criminal prosecutions, they are not based on the International Standards. And they suggest there is an objective evidential test for prosecution when clearly there is not. This means the Solicitor General’s requirement that a prosecution should only proceed if there is an objectively reasonable prospect of conviction is a judicial aberration – one that enables police to completely undercut the role of the jury.

Usurping the role of the juryDavid Crerar

That’s what happened in the Jai Davis case. Fortunately, once the police washed their hands of it, the coroner was able to take a look at the evidence. The inquest in November 2014, held by David Crerar (right), turned out to be the longest and most intensive hearing into the death of a prisoner ever conducted in New Zealand.  It uncovered a wealth of well-founded and reliable evidence much of which has been documented in the media. In essence, the coroner heard that at least ten officers, six nurses and three prison managers all believed Davis was internally concealing drugs – but not one of them called the prison doctor or called an ambulance.

The evidence was so compelling that at the end of the inquest, police announced they would reconsider whether to prosecute. Presumably the potential charges are ‘failing to provide the necessaries of life’, ‘gross neglect of duties’ and possibly ‘manslaughter’.

The Police need to do their job and prosecute those involved. If they don’t – because they might not get a conviction – they let the perpetrators go free without even allowing a jury to look at the evidence. In effect, the police appoint themselves as judge and jury.  That’s not how the system is supposed to work. The role of the police is to present well-founded, reliable evidence that a crime has been committed.  It’s up to the jury to decide whether that evidence is sufficient for a conviction to be reached beyond reasonable doubt.

Police double standard

It’s not just the Solicitor-General’s Guidelines that are problematic. The police also have a well-established double standard  when it comes to prosecuting crimes of negligence. They frequently charge offenders in the community for negligence or failing to provide the necessaries of life to vulnerable family members – but never charge anyone at Corrections when a vulnerable prisoner dies.  The reality is that Jai Davis is just another dead prisoner in a long line of prisoners where a jury never got to hear the evidence.

That’s not justice. That’s corruption – and it’s been going on for years. One could even argue that by consistently refusing to prosecute and hold prison staff to account, this amounts to a conspiracy to pervert the course of justice by agencies of the State – namely the Solicitor-General, the Police and Corrections. Perverting the course of justice carries a possible penalty of seven years in prison.  But I can’t see anyone being prosecuted for that. It wouldn’t meet the evidential test, would it?  Of course not.

_____________________________________________________________________________

For a more detailed critique of the evidential test, see this letter to the IPCA about the police failure to prosecute anyone over the death of Jai Davis.

For a more detailed analysis of police double standards, see this letter to the IPCA comparing police prosecutions in the community with those against prison staff.

Prisoner’s death: Detective compares Corrections Department to Jonah Lomu

Jonah 2This week the Dunedin coroner, David Crerar, has been holding an inquest into the death of Jai Davis at Otago prison in February 2011 from a suspected drug overdose. It’s taken over three years for the the inquest to start – mainly because for 12 months after Davis died, the police did virtually nothing about it. It looked like a suicide, so they just weren’t interested.

When I heard what had actually happened, I made a complaint to the IPCA about the inadequate police investigation. As a result, Detective Senior Sergeant Colin Blackie was eventually appointed to conduct a more thorough investigation. He did an excellent job. Over 60 Corrections staff were interviewed – including the managers, officers and nurses who were at Otago prison at the time. That took another year.

How Davis died

The circumstances contributing to Davis’ death are complex. But in a nutshell, he was admitted to the prison on Friday, 11 February 2011 when the health centre manager, Jill Thompson, was mysteriously absent from her post. There was no doctor on duty either; there hardly ever is – see Prison deaths linked to Corrections refusal to employ sufficient doctors.

Because Corrections had been monitoring prisoner’s phone calls, both the Police and the Corrections Department were aware Davis was likely to be internally concealing drugs when they brought him in. Davis was put into an ‘At Risk’ cell which has a camera on 24/7. Staff were also supposed to physically check on him every 15 minutes. The checks weren’t carried out properly and over the next two days, Davis became visibly unwell. Although he was seen by half a dozen different nurses during the weekend, not one of them bothered to call the doctor.  Davis died at about 10.00pm on Sunday, 13 February, after the nurses had all gone home.

Once Colin Blackie finished his investigation, senior police at head office analysed the information to determine whether anyone should be charged with a criminal offence – such as “failing to provide the necessaries of life”. That took another six months, but at the end of the day, no one was charged with anything. This week, the coroner was finally able to start the inquest into what went wrong.

Colin BlackieColin Blackie (left) partly blamed the slow start to the investigation. His testimony at the inquest was discussed on RNZ’s Checkpoint programme: ‘Delays into Jai Davis’ death impeded investigation’ (3’ 37”). A brief except follows:

Interviewer: “Emotions were running high as Detective Senior Sergeant Colin Blackie of the CIB told coroner David Crearer a tale of woes at the prison.”

Colin Blackie: “My view after what I believe was a thorough investigation is that over those few days (in February 2011 when Davis died), there was dysfunctionality within the prison. (I believe) that the three pillars of structure, communication and leadership were failing. There was a disconnect between the work groups (prison officers and nurses) and individuals (responsible for looking after Davis).”

“I use the analogy of five people trying to tackle Jonah Lomu. Everyone falls off and blames the others – and Jonah scores the try. And that’s how I viewed it at the end of this investigation. There was systemic failure by certain people and certain workgroups and no one standing up to be accountable for the treatment and care of Mr Davis.”

Jonah was a juggernaut

JonahThe analogy with Jonah Lomu is valid.  Jonah was a juggernaut – defined as ‘any large, overpowering, destructive force or object’. Once he got going, he was virtually unstoppable. For rugby fans, it was always a joy to see half a dozen guys trying to tackle him at once. He would usually just crash into them, step over the top, and go on to score a try.

The Corrections Department is equally overpowering and destructive – to the extent that in the last 10 years, approximately 90 inmates have died ‘unnatural deaths’ in prison. Most of these deaths are described as suicides. But because prison conditions are so harsh, the suicide rate inside is on average seven times higher than in the suicide rate in the community. In 2011 when 11 prisoners committed suicide – not counting Jai Davis who died after internally concealing drugs – it was 11 times higher.

Despite the fact that most unnatural deaths in prison are ‘suicides’ – neglect or failure to provide medical treatment often contributes to those suicides. See the Southland Times story on the death of Richard Barriball, Prison staff ‘ignored concerns’; or the story about Kerry Joll who had a history of depression but received no treatment in prison and hung himself.

Corrections doesn’t ‘try’ at all

But here’s the real killer. Despite 90 unnatural deaths in our prisons in the last ten years, not one Corrections’ employee has ever been charged with a crime. Why? Because the Department is a juggernaut.  It seems the police haven’t got the guts to tackle a government department that’s bigger than they are – or there’s political interference – and so Corrections gets away with it. But there’s a double standard; police frequently prosecute people in the community who neglect vulnerable family members. See severe neglect leads to prison sentence – except when the victim is a prisoner.

The inquest into the Jai Davis case shows the Corrections Department continues to get away with it – just like Jonah Lomu pushing all opposition aside. The only difference is that Jonah would go on to score a try. When it comes to saving prisoners’ lives, all too often Corrections doesn’t try at all.

When the inquest is finished, the coroner can make all the recommendations he wants. But until the police find the courage to prosecute prison officers and nurses who fail to respond to their duty of care, the Corrections juggernaut will continue steamrolling prisoners into committing suicide.

Police excuse for prisoner’s death – we didn’t read our emails!

Jai Davis died in Otago Correctional Facility (OCF) three years ago after internally concealing drugs in his rectum. In a previous post, it was revealed that prison management’s reluctance to pay $300 to call out a doctor on the weekend was a factor contributing his death. This wasn’t the only factor.  At the coroner’s inquest yesterday, the Police also came under attack – for not reading emails which could have saved Davis’ life.

Corrections had been monitoring phone calls to Davis by gang members in prison. The calls revealed that Davis was about to turn himself into police (on domestic assault charges) and was told to bring in ‘candy’ – code for prescription drugs.

Corrections warnings to police

Corrections intelligence officer Neil Jones-Sexton told the coroner’s inquiry on Monday that this information was of such significance, he immediately warned the police. He made numerous phone calls to a variety of police personnel advising them that Davis was going to present himself at the Dunedin police station to be arrested – and would be internally concealing drugs. He also sent at least two emails to police along with a synopsis of the calls recorded by Corrections.

The evidence given by Mr Jones-Sexton was corroborated by police intelligence analyst, Rennae Flockton who also testified yesterday. She said there were six or seven staff in the Dunedin intelligence office. There was a warrant out for Davis’ arrest and the analysts were all aware and even discussed the possibility that he might turn up at the police station. When he appeared the next day, she and “other Intel staff members” went and “looked at him through the mirrored glass” and “were commenting as to how he may have the drugs hidden on him to take into OCF.”

The Misuse of Drugs Act

Under Section 13 of the Misuse of Drugs Act, the police have the power to detain on belief of internal concealment. Under Section 13C, they have to call a doctor to conduct an internal examination of a detained person which may include an x-ray.  Police detained Davis and held him in police cells overnight. The next day, they took him to court and then out to the Otago prison. During all this time, they never bothered to call a doctor.  They were lucky he didn’t die in the police cells.

Last year I wrote to the IPCA pointing out that the police were well aware that Mr Davis was suspected of internally concealing drugs when he turned himself in. I asked the IPCA to investigate the failure of the police to use their powers under the Misuse of Drugs Act – which could have saved Mr Davis’ life.  On behalf of the IPCA, Inspector Geoff Jago, made a superficial investigation of the police conduct and decided the police were unaware that Davis had drugs on board.

What the IPCA missed

Jago said that Jones-Sexton only sent two emails about the matter – both on Wednesday 9 February (the day before Davis turned himself in). The first email went to Police Detective Sergeant John Hedges who was head of the Organised Crime Squad in Dunedin. Sent at 9.38am, it read: “We are working on a disclosure on the MM (Mongrel Mob) where they are looking to introduce drugs”.  Further on, the email mentions Davis by name.  At the inquiry yesterday, Sergeant Hedges said he never read this email and wouldn’t have done anything about it, even if he had – because he was too busy.

Jones-Sexton sent the second email at 4.00pm that afternoon to Sergeant Tony Ritchie who was head of the Police Intelligence Unit in Dunedin (where Rennae Flockton worked). Apparently, Sergeant Ritchie knocked off work at 2.00pm and claimed he never read the email till he got back to work a few days later – long after Davis had died. Even if this is true, Rennae Flockton said everyone in the police Intel office already knew what was going on – because Jones-Sexton had told them on the phone.

Excuses by Corrections & Police

There’s absolutely no doubt the police knew Davis was carrying drugs when he turned himself in. They displayed the same callous attitude as Corrections – they never called a doctor to conduct an examination. Corrections excuse was they didn’t want to spend $300 to call out the doctor on the weekend. The Police excuse, backed up by the IPCA, is that they didn’t read their emails.

The reality is that Davis died because staff at both Police and Corrections failed to do their jobs properly. When members of the public fail to take care of vulnerable people in their care, they often get charged with manslaughter. Police took three years to finish their investigation into Jai Davis’ death. In the end, they never charged anyone.

 

Prisoner dies because Corrections reluctant to pay $300 for doctor on weekend

Jai Davis died from a drug overdose two days after being remanded to Otago prison in February 2011. The inquest into his death starts in Dunedin next week – on Monday 24 November, 2014. The hearing is likely to last two weeks and will expose numerous failings by prison management, prison nurses and prison officers who all knew Davis was ‘internally concealing’ drugs but never bothered to call a doctor or an ambulance.

InternalHere’s the background. Knowing he was going to be arrested, Davis tried to smuggle in codeine and benzodiazepines for some other prisoners. Corrections knew he had drugs inside him because they’d been monitoring phone calls from these prisoners asking Davis to bring in some ‘candy’ when he turned himself in.

The police also knew Davis had drugs on board because Corrections told them.  They asked police to keep him away from other prisoners when he appeared in court – in case he tried to pass the drugs on.

Once he was taken to prison, Corrections put Davis in a special ‘dry’ cell for ‘At Risk’ prisoners. These cells don’t have toilets. When the inmate wants to ‘go’, he is given a cardboard potty and is watched while he defecates. Once he’s done, prison officers look though the faeces to see what came out.  Corrections put Davis in one of these observation cells so they could catch him with the drugs and charge him with smuggling in contraband.

Prison manager failed to call doctor

The manager at Otago Correctional facility is Jack Harrison (below). OCFThroughout the two days that Davis was in prison, his team (managers, nurses and prison officers) broke all their own rules.  One of those rules is: “The Management of Prisoners Suspected of Internally Concealing Unauthorised Items”.  It clearly states that prison management is required to “inform a medical officer (a doctor) that the prisoner is being confined to a dry cell”.  The prison manager, Ann Matenga, who was on duty when Davis was admitted signed a form stating she would advise the doctor of the situation. She never did.

On the Sunday morning, two days after he was admitted, Davis was clearly not well. One of the prison officers who was monitoring him subsequently told police:

“The nurse was assessing Davis.  I stood at the cell door while she did this.  Jai (Davis) looked like a corpse, he was grey coloured and was scratching badly – his arms were real red.  His eyes were sunken and he had the cold sweats.  He was definitely not his usual self and he had slurred speech as well.  To my mind, he was showing all the signs of someone being on drugs.  What’s more his breath smelt like faeces.  I could smell it from where I was when he was talking to the nurse.  The nurse said he was fine and that was that.  I thought to myself, I am glad that’s your call, because to me, he looked as though he should have been in hospital.”

Another nurse who was on duty later that afternoon, Janice Horne, also thought Davis was under the influence of drugs. Corrections investigator, David Morrison, wrote: “Her assessment of Mr Davis at this time was that he was under the influence of some drug because of the slow movements that he was making”.   Janice Horne knocked off work at 8.00pm that evening and subsequently told Mr Morrison (and the police) that she saw no reason to call a doctor. She thought Mr Davis was fine, even though he was clearly under the influence of drugs. Davis died two hours later.  There was a camera in the cell recording every movement he made and the last one, the ‘death shake’, was at 10.01pm, two hours after Ms Horne went home. By the time prison officers realised he was dead – at about 5.00am the next morning –  his body was already stiff from rigor mortis.

Life is cheap in Otago prison

Davis was seen by five different nurses over the course of the weekend. They all knew he was in the ‘dry’ cell suspected of internally concealing drugs. Not one of them called the doctor. They didn’t even call the health centre manager. Nurses have a Code of Conduct which requires them, among many other obligations, to “Act promptly if a health consumer’s safety is compromised.” All five nurses responsible for Mr Davis’ health care over the weekend abandoned their ethics and ignored the Code of Conduct.

When the nurses were subsequently interviewed by the police and asked why they didn’t call the doctor, two of them said that cost was a factor. They said that calling the doctor out on the weekend was discouraged because the prison is 45 minutes’ drive from Dunedin where the prison doctor lived and a callout cost $300.  Life is cheap in Otago prison.

Despite so many Corrections staff failing to perform their duties in this case, not one Corrections manager, officer or nurse was charged with a crime. Why? Because the police also knew Davis was internally concealing drugs; with that knowledge, they held him in the police cells overnight and took him to court and then to Otago prison the next day. But they couldn’t be bothered calling a doctor either.  They just chucked Davis in prison. My guess is that the police didn’t want a judge, or the public, to find out that they also contributed to his death.

See also:

Police excuse for prisoner’s death – we didn’t read our emails! 

Severe neglect leads to prison sentence – except when the victim is a prisoner

Prison deaths linked to Corrections refusal to employ sufficient doctors

Corrections cuts crime with the selective use of statistics

In July 2014 the NZ Herald revealed the police have been cooking the crime stats in Papakura. Now The Daily Blog is asking the question: Has the Government manipulated Corrections statistics as well? The answer is yes.  But this is not being done by a few rogue Corrections officers. This is a systemic practice conducted in Corrections head office.

The Department claims it is focused on reducing reoffending and the diagram below taken from its website suggests that in April 2013, re-offending was down by 9.3% over the previous two years. The Department says it is on target to reduce reoffending by 25% by 2017.
When the government announced the goal of 25%, they said: “This will mean 600 fewer prisoners re-imprisoned one year after release, and 4,000 fewer offenders reconvicted within a year of beginning their community-based sentence.”

But the latest Corrections report (2013) on Trends in the Offender Population, effectively contradicts most of the Government’s claims about reduced reoffending.

Prison numbers

The report shows there has been no drop whatsoever in the number of people in prison (see graph).  In fact the number of sentenced prisoners has gone up dramatically – by 166% since 1983.Prison numbers

The best that Corrections could claim about this graph was that “From 2010 there has been a flattening in the sentenced prisoner population.”

Looking at it more closely reveals that the rate of increase also ‘flattened’ between 1983 and 1987; between 1992 and 1995; and between 1999 and 2003. After each of these ‘flatlines’, the muster continued its inexorable rise.

Offenders in the community

In regard to offenders on community-based sentences, the increase has been even more dramatic. The report says: “The number of offenders starting a new community sentence during 1983 was 14,407. This increased by 219 percent, to 48,379, in 2010.”  As with prison numbers, the overall trend is up, not down.Community numbers

But Corrections claims that: “The number of offenders starting a community sentence each year has decreased markedly since 2010. Between December 2011 and December 2013, re-offending has reduced, equating to 11.7% progress towards the target of reduced re-offending by 25 percent by 2017.” (See graph)

Sure, there has been a small drop in the last two years, but it is far too soon to determine whether this is anything other than a temporary dip in the upward trend. The report shows there was a similar drop between 1994 and 2000 – followed by a rapid rise to a new peak in 2010. Corrections’ exaggerated claims about the dip in the last two years are premature; they ignore the long-term upward trend in which the dip may be just a natural variation.

Selective statistics

In fact the dip is not natural. It’s entirely manufactured – by the selective use of flawed statistics.  To make it look like reoffending (by those on community based sentences) is down, Corrections only includes statistics of those who reoffend within 12 months from the start of their sentence, rather than within 12 months from the end of their sentence.  That’s ridiculous.  It’s like measuring the reoffending rate of prisoners while they are still in prison, with almost no capacity to commit further crime. No wonder the reoffending stats are down.

A more useful analogy is to compare reoffending rates with the survival rate of cancer victims. Measuring  survival from the start of chemotherapy or radiation treatment would not tell us much.  It’s only after treatment is complete, assuming the patient survives, that its effectiveness can be evaluated. This is done by measuring survival rates five or even ten years later. 

Short term snapshots

The same applies to criminal reoffending.  The reality that the longer a recidivist offender is at large in the community, the greater the chance he will eventually reoffend. A more detailed analysis conducted by Corrections (Reconviction patterns of released prisoners: A 60-months follow-up analysis) shows that approximately 26% of prisoners reoffend and are re-imprisoned within 12 months of release. But after five years – 52% are back in prison.  In other words, approximately half of all ex-prisoners who subsequently reoffend manage to survive in the community for more than 12 months before they commit another crime and go back to prison. But Corrections is not counting these crimes.

What this means is that the statistical data that Corrections is using to prove it’s on track towards the 25% goal comes from short term snapshots and is therefore incomplete and misleading.  For those on community based sentences the snapshot is so short, it begins at the start of the sentence while the offender may still be on home detention. This is a cynical and deceptive use of statistics which fails to provide an accurate or realistic picture of criminal behaviour in New Zealand.

Severe neglect leads to prison sentence – except when the victim is a prisoner

Joanne QuinnIn November 2011, 82-year-old Maureen Quinn was found malnourished and dehydrated lying on the sofa with maggot infested leg ulcers.  Medical staff said it was the worst case of neglect they had seen and Maureen died six weeks later.  Joanne Quinn (right), her eldest daughter, was charged with failing to provide the necessaries of life and in May 2014 was sentenced to two years and six months in prison.

Here’s another case of neglect which has not received the same level of public attention.  30-year-old Jai Davis was admitted to Otago prison on remand on Friday 11 February, 2011.  He also needed medical help, but he died two days later because prison staff couldn’t be bothered taking him to the hospital.  They never even called a doctor.

The set up

Jai DavisHere’s what happened. Mr Davis (right) was connected with the mongrel mob. and gang members in the Otago prison wanted drugs brought in.  They were aware that Mr Davis had assaulted his girlfriend and was likely to end up in prison again.

So once charges were laid, gang members phoned him telling him to bring in ‘candy’ – and conceal it internally. After a brief appearance in court, Mr Davis was remanded in prison.  Prison management knew he was concealing drugs because they’d been monitoring the gang member’s phone calls. (The Department monitors all phone calls made by prisoners.)

Official procedures ignored

Corrections have a documented procedure for dealing with “prisoners suspected of internally concealing an unauthorised item.”  It requires the prisoner to be taken to a dry cell (one with no toilet or running water) and “a medical officer (the prison doctor) is to be informed”. Davis was remanded late on Friday afternoon so there was no doctor was on duty. Doctors are seldom on duty in New Zealand prisons – see Prison deaths linked to Corrections refusal to employ sufficient doctors.

Because management suspected Mr Davis of concealing drugs, the acting prison manager signed a document stating she would advise the prison doctor of the situation. She never did. Over the course of the weekend, officers and nurses observing Mr Davis noticed him staggering around in his cell apparently under the influence of drugs.

Prison Inspector, David Morrison, subsequently wrote a 39 page report outlining the circumstances which contributed to Mr Davis’s death. He wrote:

“At approximately 16:00 hours (4 p.m. on 13 February, the day he died), Mr Davis was seen by the nurse, who had been informed when she came on duty that Mr Davis was suspected of concealing drugs and that was why he was in the dry cell… Her assessment of Mr Davis at this time was that he was under the influence of some drug because of the slow movements that he was making” (para 171).

“The PM Nurse had a conversation with the unit officer where she stated to the officer, Mr Davis ‘looks stoned’ “ (para 172). Mr Davis was more than stoned. The autopsy report shows he died from the combined effect of ingesting codeine and benzodiazepines.

At about 7.30 that evening one of the officers responsible for observing Mr Davis became concerned about his deteriorating condition. He called the nurse and asked her to come and check on Mr Davis again.  The nurse was about to finish her shift at eight o’clock and replied that she had already seen the ‘little fucker’ earlier in the day. She had a dinner date organised and refused to go. Mr Davis died about three hours later – at 10.30 that evening.

It’s all on camera

Prison cameraBecause he was “at risk” there was a camera in Mr Davis’ cell – everything that happened was recorded.  The camera footage shows that Mr Davis remained on his bed from 10 p.m. that night “without moving”.  In addition to the camera, officers were supposed to personally check on him every 15 minutes.  In his report, the prison inspector said that “the scheduled standard 15 minute observations for 21:32 hours (9:32 p.m.) and 22:25 hours (10:25 p.m.) were not conducted… (But) these observations were recorded as being completed by the officer.”

In other words, around the critical period when Mr Davis stopped moving, the prison officer who was responsible for checking on him failed to do so – and then falsified documents claiming that he had.  See Prison records ‘ghosted’.  It was not until 5.00am that an officer became concerned that Mr Davis didn’t seem to be moving.  When they finally entered his cell to rouse him, rigor mortis had already set in indicating he had been dead for hours. Corrections Inspector David Morrison concluded that at least seven different prison protocols had been breached.

No investigation

Let’s compare Mr Davis’s case with a couple of other cases.  In August 2010, a mother in Auckland was charged with murder but found guilty of manslaughter after her 13-month-old baby drowned in the bath while she left the baby unattended for 15 minutes. She was sentenced to 17 months in prison (on appeal).  In October 2013, a Wellington mother was charged with manslaughter after her baby also drowned in the bath while she made a phone call which lasted 6 minutes.  She was found not guilty.

Each of these women had a vulnerable family member in their care for whom they were responsible.  After a thorough police investigation, they were charged with manslaughter, murder or ‘failing to provide the necessaries’ because in each case they failed to protect the one who died.  In Mr Davis’ case, Otago prison also had a vulnerable person in its care – and also failed to protect him.  But for two whole years the police did absolutely nothing.  An investigation only began after a formal complaint was made to the IPCA.

No one charged

The Police eventually put ten officers on the case and interviewed over 70 Corrections staff – some of whom had gone to Australia.  The investigation took 12 months – but in the end, no one was charged with anything.  According to Radio New Zealand, police claimed “there was ultimately not enough evidence to meet the threshold required to run a successful criminal prosecution”. Yeah right!

There are at least four possible reasons why no one was charged.  The first is that Mr Davis was a prisoner, perceived by the public as a second-class citizen – and prisoners deserve what they get. Maybe that’s why the police took so long to start their investigation.  The second is that a number of people were involved in monitoring Mr Davis over the weekend and no one person was ultimately responsible for his death.  That’s easily solved.  Bring charges against everyone and let the jury decide.

The third possibility is that police were reluctant to press charges because it might have been suggested at trial that they also contributed to Mr Davis’s death – by taking him to prison when they should have taken him directly to hospital.  When she was asked about Mr Davis’ death, the prison health centre manager (who was not on duty the weekend that Mr Davis died) said:

“As there was clear knowledge that this person was concealing drugs, why did he come here in the first place? The prison is 45 minutes away from a hospital. If drugs had exploded in the prisoner’s gut, we would not be able to get (him) to the hospital in time. If there were serious concerns that this man had drugs on board, he should have been held in hospital under guard where he could be treated quickly if things went wrong” (Corrections Inspector’s report para 195).

Political interference?

Anne TolleyThe fourth possibility is that there has been political interference.  Anne Tolley is Minister of Police and Corrections.  She was aware of Mr Davis’s situation at least as far back as Septem- ber 2013.  See Prison deaths investigated.   She and Police Commissioner Peter Marshall took a keen interest in the case and were kept informed of developments by Dunedin Inspector Greg Sparrow who was in charge.

Inspector Sparrow also kept Mr Davis’s mother, Victoria Davis, informed – and Victoria thought that someone at Corrections would eventually be charged. But once the investigation was complete Ms Davis was told that Inspector Greg Sparrow had suddenly gone ‘on leave’. He was replaced by Detective Inspector Steve McGregor who seems to be higher up in the police chain of command. Peter Marshall and Anne Tolley are at the top of the chain.

Given the extraordinary decision that no one will be charged, it may well be that Anne Tolley has also crossed the line and interfered with a police prosecution. After the Judith Collins Oravida scandal and the resignation of Maurice Williamson, the last thing National wants to see is Police prosecuting Corrections over the death of a prisoner a few months out from the election.

All four of these possibilities are worthy of investigation – whether that’s by the coroner, the IPCA or the media.

The big picture

The inquest into Jai Davis’s death will be held from 3rd to 7th November, 2014 – but it seems unlikely the coroner will examine the big picture – despite the fact that Mr Davis’ death in prison is not an isolated case. Over 80 prisoners have died ‘unnatural deaths’ in custody  in the last ten years – but not one prison officer, prison nurse or prison manager has ever been charged with anything. If the police fail to investigate prison deaths, and never press charges against anyone – a conspiracy theorist might conclude that Corrections and the Police are involved in a cover-up.  Eighty dead bodies kept under wraps – the whole thing stinks.

Coroner BainCompare this with deaths in the forestry industry. On average about five forestry workers die every year and companies which fail to protect workers are often ordered to pay significant compensation. Four days ago, Coroner Wallace Bain (right) called the death rate in the forestry industry “alarming” and said “New Zealand’s health and safety record is extremely poor”.  About five prisoners also die unnatural deaths in the care of the Corrections Department every year. In 2011, eleven prisoners died – but no one bats an eyelid. Why? Because they’re only prisoners, so who cares – and no one is really looking anyway, including the police. In Jai Davis’ case, the police eventually did have a look – but then they closed their eyes again.

Alcoholic with 20 convictions for drink driving keeps getting his licence back

PrisonIn February 2014, I was asked to interview Brian Hart, a 58 year old chronic alcoholic on his 20th conviction for drink driving. My job was to figure out how bad his drinking problem was and what treatment he needed. I discovered that as a child he had been physically abused and eventually abandoned by his parents. As a result he had long-standing personality problems. He started drinking at age 16 and by the time I met him, he had been in and out of court for 40 years. In addition to 20 convictions for drink driving, he had over 200 other convictions for a variety of offences and had been sent to prison 33 times.

It was blatantly obvious that Mr Hart had a drinking problem but despite 40 years of court appearances, not one judge had told him to go to rehab.  They just sent him to prison and disqualified him from driving. His offences were all relatively minor so his prison sentences (and his disqualifications) were always quite short – usually 12 months or less. Even in prison he had never been given any help.

When I interviewed him it was very clear that if he was ever going to stop drinking or stop reoffending, he needed to attend a long-term residential treatment programme. I recommended he should go to Moana House for a minimum of 12 months.

Indefinite disqualification

Mr Hart has had a hard life. But the justice system has not only failed to help him, it has also allowed him to continue driving, which affects the rest of us. Because his prison sentences were roughly the same length as his period of disqualification (usually one year), by the time he got out of prison, his disqualification was already over and he was allowed to drive again.  That’s because his disqualification always started the same day he went to prison – not after he got out.

Drunk carAnd that’s not the only loophole in the law.  Currently, the legislation allows drink drivers given a fixed period of disqualification to automatically get their licence back at the end of the disqualification – without being assessed by an alcohol and drug counsellor.  See Legal loophole in drink driving laws. That’s why so many drink drivers – about 10,000 a year – reoffend.

As the law currently stands, the only time a drink driver has to see a clinician to be assessed is if the judge mandates him into treatment or gives him an ‘indefinite’ disqualification.  Mr Hart was disqualified indefinitely for the first time in 2002 – on his 16th conviction for drink-driving. A year or so later (after serving time in prison) he approached an approved alcohol and drug assessment centre hoping to get his licence reinstated.

Mr Hart was required to attend group therapy twice a week and individual counselling once a week to help him stop drinking.  After only four weeks, his clinicians told the NZTA that Mr Hart had completed his ‘treatment’ and should get his driver’s licence back. Bizarre as it seems, the Agency agreed.  They ignored the fact that Mr Hart was an alcoholic with a long history of offending  – and it should be no surprise that he relapsed a few weeks later. Mr Hart has now incurred another four convictions for drink-driving. It’s amazing he hasn’t killed anyone.

Incompetent assessors

drink driving signNew Zealand allows these offenders back on the road far too easily.  The vast majority of the 30,000 Kiwis convicted of drink driving every year are disqualified for a finite period – usually between six and 12 months. They get their licence back at the end of their disqualification with no questions asked – even if they spent the entire time in prison. The only ones that have to undergo an assessment (and treatment if required) to get their licence back are the 1,500 drivers disqualified indefinitely each year. These guys are by definition, high-risk recidivist offenders.

After his indefinite disqualification, Mr Hart was assessed by a doctor and a psychologist – both of whom had an interest in addiction but may have had only limited qualifications and experience in the assessment and treatment of alcoholics.  The fact that they recommended Mr Hart should get his licence back after 16 convictions for drink-driving and a one-month intervention is bewildering. But this kind of incompetence is standard practice. More than half of the 100 clinicians who have been approved to conduct these assessments for NZTA up and down the country are not registered as competent alcohol and drug clinicians. For more on this subject, see Government agencies use ‘incompetent’ counsellors to assess recidivist drink drivers.

The definition of insanity

So what happened to Mr Hart when he appeared in court on his 20th conviction?  Did the judge send him to rehab?  Of course not – he was sent to prison again – for the 34th time.  This is an expensive strategy. As a lifetime offender, Mr Hart has already cost the taxpayer about $3 million. Sending him to prison doesn’t help Mr Hart and, since he keeps getting his licence back, it doesn’t protect society either.

As a repeat drink driver, the worst that might be said about Mr Hart is that he is a ‘bloody idiot’. But it’s not all his fault.  The legislation that allows him – and hundreds of other repeat offenders – to get their licences back so easily is full of loopholes.  Here’s another example: Serious drink-drivers slip through legal loophole. These loopholes need to be blocked.

InsanityBut it’s equally important that judges realise they’ve been perpetuating the problem for years by consistently failing to mandate repeat drink drivers into rehab. Einstein described insanity as “doing the same thing over and over again and expecting a different result”.  Mr Hart might be a bloody idiot.  But the judges who keep sending him to prison thinking that will change his behaviour must surely be insane.