The $5 million retrial of Mark Lundy should shake our faith in the justice system. 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, writes Bryce Edwards

The failure of the police

A lengthy catalogue of failure, embarrassment and injustice has been building on the police scorecard in recent years. On top of the retrials for the likes of Mark Lundy, David Bain, and Teina Pora, other major policing controversies include:

• Peter Ellis' conviction for sexual offences revealed very suspect methods used by the police.

• The 2007 Bazley Commission of Inquiry into the police showed that the institution has pernicious problems in dealing with women.

• Official reports have been scathing about the Roastbusters investigation.

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• The so-called Urewera anti-terrorist raid on activists and communities in 2007 showed, once again, that dissenting voices are clamped down on hard, using unlawful techniques.

• The police fervour against Kim Dotcom has also been telling — in apparent deference towards US law enforcers they illegally used the GCSB to carry out surveillance and then unlawful arrest warrants in their over-the-top raid.

Other serious failings have plagued the police, including official criticisms for numerous deaths in police custody, involving inadequate duty of care or overly vigorous restraint. Likewise, police use of firearms, Tasers and high-speed pursuits — with deadly consequences — have indicated an often-cavalier approach.

Historically, New Zealanders have held the police in high regard, and to a large extent that's still true. But that trust does appear to be eroding. When TV3 ran a special on police in 2013, 56 per cent of viewers said the police were losing the public's trust.

The problem of conservatism

Official reports have been scathing about the Roastbusters investigation.
Official reports have been scathing about the Roastbusters investigation.

In any society, the police force plays a crucial role in bolstering the Establishment of the day. Their role is to maintain the status quo and they reflect the power relations in society, which means they tend to side with the powerful. So when it was decided not to prosecute then-Cabinet Minister John Banks — even though strong evidence was presented about his alleged electoral fraud — it smacked of the Establishment protecting itself.

Obsequiousness to the powerful makes the police an intrinsically conservative force. It means that justice and equality are not the priority of the police, compared to self-preservation and protection of officers. So even Bruce Hutton, the corrupt officer who famously planted evidence on Arthur Allan Thomas, was last year declared by then-Deputy Police Commissioner Mike Bush to have "integrity beyond reproach". Such episodes reinforce the notion that the mentality of police is more inclined to cover-ups than rigorous self-policing. Bush is now Commissioner.

• Read also: Police must earn public's trust

In such a conservative culture, incompetence and corrupt investigative practices are too easily tolerated. They are not always addressed and shoddy police standards can flourish. The flow-on effect is an increase in botched prosecutions, mistrials, judicial appeals, unsafe convictions and ultimately compensation paid to the unfairly incarcerated.

The conservative nature of the police also means they are reluctant to change, and resistant to criticism. The Auditor General has even criticised the police for failing to be "receptive to outside scrutiny". Similarly, the Independent Police Conduct Authority (IPCA) said last month it was "disturbed" by the lack of progress in implementing change demanded by previous inquiries.

Inquiries and corruption

David Bain was acquitted of killing his family in a retrial in 2009. Photo / Simon Baker
David Bain was acquitted of killing his family in a retrial in 2009. Photo / Simon Baker

So, are the police corrupt? There are signs the public view the police as being affected by corruption. For example, a 2013 Transparency International survey (using Colmar Brunton) found the perception of police corruption was given an average score of 2.7 out of 5 — making the police moderately corrupt.

The police were deemed less corrupt than political parties, which had the worst score of 3.3, but more corrupt than other state institutions such as the judiciary (2.5) and the military (2.2). Alarmingly, 3 per cent of respondents also claimed to have paid bribes to police.

Corruption in the overt sense of abusing power for private gain appears to be rare. Much more common is abuse of power, law and the public's trust.

New Zealand's best-known case was the planting of false evidence on Arthur Allan Thomas, leading to his unsafe conviction. Some of the scandals cited above show that the police have continued to use unethical tactics.

Criminologists sometimes call this "noble cause corruption" because the offence is often committed with the belief that it is for the right reasons or the perceived "greater good". It's an ethic of "it's okay to break the law to uphold the law".

Mark Lundy has been found guilty of the murder of his wife and daughter for the second time. The jury - which deliberated for 16 hours over more than two days - returned the unanimous verdicts at a packed High Court at Wellington.

Ex-police inspector and parliamentarian Ross Meurant has spoken out about this type of activity, relaying his own observations of the emergence of "a corruption of zealousness; where the police break the law to put someone behind bars because of the belief within the police that they know what is best for society". He adds that it works alongside a police culture that is "conservative in its origins and mostly bigoted and intolerant".

Two years ago, lawyer and journalist Catriona MacLennan catalogued illegal actions by the police, concluding: "The pattern of illegality on the part of the police appears to be so pervasive that outside eyes are required to remedy the situation." She called for an independent review of the way search and surveillance operations were carried out.

There's also an element of bureaucratic box-ticking that means the police are eager to ensure convictions at any cost. In particular, gaining a 100 per cent resolution rate in cases of murder has become an essential metric for police to prove themselves. Politics and media coverage of crime increases demand and expectations for police to achieve convictions.

On the recent Teina Pora case, prominent QC Peter Williams stated: "There was violence by police to get confessions. There were tricks played to get confessions. The whole system was geared towards trying to get convictions at all costs."

Williams also concluded he "couldn't altogether disagree" with anyone who thought the system was corrupt.

The changing face

Peter Ellis' conviction for sexual offences revealed very suspect methods used by the police. Photo / Martin Woodhall
Peter Ellis' conviction for sexual offences revealed very suspect methods used by the police. Photo / Martin Woodhall

Police management is promoting reforms aimed at modernising the force and improving credibility with the public. They're particularly keen to shake off a reputation as "pale, male and stale", seeking to appear more culturally diverse, liberal and progressive.

Police have incorporated the goals of "empathy" and "valuing diversity" into their official core values.

For example, police management recently allowed and encouraged uniformed police to march in the annual Auckland Pride rally, which they say shows their support for LGBT officers and the community.

Strong efforts are being made to align the police with Treaty commitments and Maori networks in the force have been fostered and given greater input into decision-making.

As a result of these efforts, the demographic of the force is changing fairly quickly. The police are now 11 per cent Maori (before 1950, they didn't even recruit Maori).

Police readily admit they participate in TV shows for propaganda purposes. Photo / George Novak
Police readily admit they participate in TV shows for propaganda purposes. Photo / George Novak

Women officers are also strongly encouraged, and there are clear signs of women being promoted to the top. Police even participated in a reality TV show, Women In Blue, to showcase the feminisation of the force.

Police readily admit they participate in such programmes for propaganda purposes. Between 2009 and last year officers appeared in 91 television programmes — the biggest being Police Ten 7, of which there were 240 episodes.

Facebook, Twitter and the blogosphere are increasingly used to communicate police activities.

But is this all window dressing? It's certainly very good PR and slick marketing. The police are now much more likely to use language designed to promote themselves as being "part of the community" and management even talks about its "holistic" approach to crime.

Of course, such changes do have practical outcomes. For example, the use of "alternative resolution" is strongly encouraged, with police using diversion and warnings much more frequently.

But does the ethnic and gender make-up of the police really make any difference in their conservative and pro-Establishment outlook? Certainly the over-representation of Maori in criminal apprehensions and convictions continues.

It seems modern marketing belies the fact that the police are still essentially the same, often oppressive, institution that serves the status quo, and sometimes also injustice — "the iron fist in the velvet glove".

IPCA — watchdog or puppy?

Mark Lundy has been found guilty of murder for a second time. Photo / Mark Mitchell
Mark Lundy has been found guilty of murder for a second time. Photo / Mark Mitchell

The IPCA is often regarded as more of a lapdog than a true watchdog of the police. Can we trust it to deal with police incompetence and maliciousness? There are signs the authority is changing, under the more assertive leadership of Judge Sir David Carruthers. Recent investigations have been more forthright and critical.

Nonetheless, there continue to be good reasons for doubting that the authority keeps the police honest. Its teeth simply aren't very sharp — for example, the IPCA can't even initiate its own investigations. It can't bring charges against police or enforce any recommendations. In fact, the police sometimes just thumb their noses at IPCA recommendations. And the IPCA's process can be incredibly slow — it took four years to issue its report on a complaint about the police breaking a man's neck.

For about 90 per cent of complaints, the authority relies on the police to investigate itself. If Police Association representative Greg O'Connor is anything to go by, public complaints are not taken entirely seriously.

O'Connor has described complaints as "frivolous" and made by "perennial complainers". Perhaps most concerning, investigators employed by the IPCA tend to be ex-police, which makes their independence questionable.

It's not surprising, therefore, that much of what we find out about police illegality and misconduct doesn't come from the watchdog but from the media or, incidentally, court cases.

So is the IPCA just another part of the Establishment? Interestingly, one of the board members, Justice Lowell Goddard, recently created a stir in the UK when she claimed there is no Establishment in New Zealand.

In fact, the IPCA's board is very much part of the Establishment. For example, until recently, a former director of the SIS, Richard Woods, was on the board.

And although the Office of the Auditor General has a role in monitoring police, it's headed by Lyn Provost, a former police deputy commissioner.

An unhealthy institution

Teina Pora, his daughter Channelle and his grandson, Benson, 5. Photo / Dean Purcell
Teina Pora, his daughter Channelle and his grandson, Benson, 5. Photo / Dean Purcell

The police carry out many functions well. However, there is too much that they get wrong, and do wrong, to provide the public with sufficient trust in the institution.

When considering problems with the justice system, we have to realise the police are a crucial institution providing the platform for determining crime and prosecution.

So when things go wrong in the police — when its health declines — it can have a big impact, leading to unsafe convictions.

If changing the police force internally is difficult, slow and tending towards the cosmetic, then external scrutiny and oversight is crucial.

The media, courts, politicians and pressure groups all have their role to play, but all have significant limitations as well. The IPCA, or an equivalent dedicated body, needs the resources, organisational and cultural independence and real teeth that can't be ignored by an unwilling police force.

Until that happens, the simple lesson for individuals seems to be: don't end up on the wrong side of the police — even if you're innocent. And for the public, don't place too much trust in an institution that is less than healthy.


Dr Bryce Edwards is a political commentator and Otago University lecturer who specialises in research into who holds the power in society.