The criminal justice system is based on the belief that the State punishes only those whose guilt has been proven "beyond reasonable doubt". A fine concept, but in recent years there's been growing evidence in New Zealand and overseas, that what is beyond reasonable doubt is that the system makes mistakes.

Worse, once it has an innocent victim in its clutches, the establishment fights furiously against any suggestion that an error might have occurred. Instead of checking the facts, the awesome power of the State focuses on protecting the myth that the system is infallible.

Nobody but Mark Lundy knows if he axed his wife and 7-year-old daughter to death in their Palmerston North home in August 2000, then sped back to Wellington and hired a prostitute as an alibi, as the police allege.

But after him proclaiming his innocence for more than a decade from beyond prison walls, the Law Lords of the Privy Council - including NZ Chief Justice Sian Elias - have found crucial parts of the police case against him so wanting they've quashed the conviction and ordered a retrial.


Lundy has been behind bars for 12 years and was denied legal aid to pursue this last round. His victory in the Privy Council depended on the goodwill of Auckland businessman Geoff Levick and assorted legal professionals.

If found not guilty in the upcoming retrial, he won't be the only victim of the New Zealand criminal justice system wrongly trapped inside our jails. In 2006, after a two-year review of wrongful imprisonments at home and abroad, Sir Thomas Thorp, 31 years a Crown prosecutor, 17 years a High Court judge, estimated there were likely to be at least 20 innocent people in New Zealand jails.

His interest arose after reviews he did for the Government on controversial cases such as the Peter Ellis Christchurch creche travesty.

Sir Thomas based his calculations on Britain's experience. For more than 15 years, independent Criminal Cases Review Commissions in England and Scotland have reviewed cases where, in their opinion, there was a "real possibility" the conviction would be overturned on referral to the Court of Appeal.

In the first 15 years of the English commission, 320 of the 480 convictions it referred to the appeal courts for reconsideration were overturned.

In his research, Sir Thomas was given confidential access to New Zealand Justice Department records. He analysed 53 applications from prisoners claiming miscarriages of justice from 1995 to 2002. Of these, he classified 26 per cent as "raising issues that clearly required careful investigation" and 58 per cent had "sufficient potential to require some further investigation".

As a result of his studies, he wants a "fully independent and appropriately staffed and resourced authority" to investigate and identify miscarriages and refer them to the courts for reconsideration.

Similar bodies are springing up in the United States, the first in North Carolina in 2006. The development of DNA technology fuelled the drive in America, where college-based Innocence Projects led the charge.


Historic DNA evidence has been a key factor in freeing the wrongly convicted - disproportionately black and poor. Sir Thomas, in a recent Herald interview, suggested a reason for the low level of claims of miscarriage in New Zealand, compared with Britain, could be that Maori and Pacific Island inmates, who make up 60 per cent of the prison population, rarely make claims.

The most celebrated cases of wrongful imprisonment teach us the criminal justice system is not built to handle its mistakes. Peter Ellis and Teina Pora are two obvious sacrifices to this inhumane inflexibility. So was Arthur Allan Thomas, who was finally freed following a marathon campaign by journalist Pat Booth, by Prime Minister Rob Muldoon who rejected the system and set up an extra-judicial inquiry. In effect, it was a one-off body along the lines of the British and American criminal review commissions.

The Muldoon-appointed inquiry supported claims that the police had planted incriminating evidence. That was in 1978. The police claim they are now a changed organisation. But not changed enough to provide the independent investigative skills required by a commission reviewing wrongful imprisonment. After all, in April Police Deputy Commissioner Mike Bush delivered a eulogy at the funeral of Detective Chief Inspector Bruce Hutton, the man found to have planted the evidence incriminated Arthur Thomas.

He read from a police report declaring Hutton's "integrity is beyond reproach".

Then last month, the Central District police commander, Superintendent Russell Gibson, had to apologise after describing a 10-year-old rape victim as a "willing party" in her sexual abuse. What better case for an independent criminal review panel than these random thoughts from two senior police officers.