Peter Ellis died in 2019. His case was heard in the Supreme Court posthumously. Photo / NZ Listener
Peter Ellis died in 2019. His case was heard in the Supreme Court posthumously. Photo / NZ Listener
In branding the Peter Ellis case a miscarriage of justice, the Supreme Court has added his conviction to a growing list of cases where the legal system has got it wrong.
Particularly, it found that expert witness Dr Karen Zelas, at that time a specialist psychiatrist, gave evidence that exceeded the proper bounds of the law in several ways, including a lack of balance and "circular reasoning".
One of the judges on the Supreme Court panel hearing the Ellis appeal, Justice Susan Glazebrook, has previously written on the issue of what she called "miscarriage by expert".
In a 2018 article in the Victoria University of Wellington Law Review, she examined a number of overseas cases and showed how expert witness testimony had led to wrongful convictions.
Her article stated that the US Innocence Project, which investigates miscarriages of justice, found that improper or invalidated forensic science contributed to wrongful convictions in more than 50 per cent of cases that were subsequently overturned by DNA evidence.
"The message ... is for the courts to be vigilant in making sure proper standards are kept by experts giving evidence," Justice Glazebrook wrote.
"This may be due to a particular expert's fallibility but may also be because scientific knowledge has moved on."
Another judge who has written on miscarriages of justice was the late Justice Grant Hammond, a former president of the Law Commission.
Alan Hall recently applied for compensation for his wrongful conviction, after the conviction for murder was quashed by the Supreme Court this year. Photo / Greg Bowker
In a lecture at the University of Waikato, he listed several ways a miscarriage of justice could occur, including that the evidence of expert witnesses had sometimes been "over-estimated".
Whatever the cause, the Ellis case is just the latest in a growing list of miscarriages of justice to blight New Zealand's judicial landscape.
The problem has been long acknowledged, leading to the establishment in 2020 of a Criminal Cases Review Commission to investigate cases where people claimed they had been wrongfully convicted.
Before then, people who had exhausted legal appeals through the courts could seek redress through what was called the Governor-General's "royal prerogative of mercy". It was not used often.
The new commission was swamped with applications when it opened for business in July 2020.
In the first month, the commission received four times the number of applications it had been expecting.
After six months, applications had reached 125, the number which had been expected in the first 12 months and on which its $4 million annual budget had been based.
By August this year, the latest month for which numbers are available, it had received 325 applications – they have been flowing in at an average of 13 a month.
Nearly half of them – 47 per cent – have been received from people convicted of sexual offences.
The commission expects to make its first referral to an appeal court later this year.
In the meantime, miscarriage of justice cases like Ellis' continue to make their way through the appeal courts outside the commission's pathway.
In July this year, the Supreme Court quashed Alan Hall's conviction for the murder of Arthur Easton, who was killed in a violent home invasion in 1985.
Hall was convicted in 1986 at age 23 and spent a total of 19 years behind bars for a crime he always maintained he did not commit.
He has applied for compensation for conviction and wrongful imprisonment, 37 years after Easton died.
Among previous notable cases, Teina Pora was convicted twice – in 1994 and 2000 – for the 1992 murder of Susan Burdett. In March 2015 the Privy Council quashed his convictions.
He received $3.5 million for wrongful conviction and the 22 years he spent in prison.
Arthur Allan Thomas was awarded $950,000 in 1979 after wrongfully spending nine years in jail for the murders of Jeanette and Harvey Crewe. He received a royal pardon following a commission of inquiry into his case.
David Bain was convicted of the 1994 murder of five family members and spent 13 years in prison before being acquitted at a second trial.
He sought compensation but retired Australian judge Ian Callinan, asked to review his claim by a National Government, found that Bain had not established his innocence "on the balance of probabilities".
Bain received an ex gratia payment of $925,000 in recognition of the time and expenses consumed by the compensation process, and to avoid further litigation.
