"EVERY FAMILY'S NIGHTMARE"; A NEW ZEALAND PERSPECTIVE; CURRENT "NOMINATIVE" APPROACH SEEN AS A RECIPE FOR MISCARRIAGES OF JUSTICE; IN AUS. AND N.Z.

"The documentary highlights how critical changes made in the UK as a result of a number of high profile unsafe convictions have yet to be made in Australia, and to our knowledge, in New Zealand.

One of the important developments in England in the 1990s was the formal adoption by police and investigators of what is known as the ''eliminative'' approach. This followed a couple of high-profile miscarriage cases, the Guildford Four and the Birmingham Six. The eliminative approach requires evidence be applied in a way to eliminate people from the pool of suspects.

Police forces around Australia, and certainly in WA and NSW, use a ''nominative'' approach. A suspect is nominated and a case built around that person. This can and does mean evidence is used selectively. In England and Scotland the nominative approach is regarded as discredited. Not here..."

JOHN TERTULLIAN AND CONTRA CELSUM: (We are informed that the author of this post is a portfolio manager in the investment banking industry who is located in Auckland, New Zealand, and that: "John Tertullian and Contra Celsum are pseudonyms. The name "John" has reference to the sovereign saving grace of God, in which we publicly confess to stand. Tertullian was one of the earliest apologetes of the Christian Church, celebrated for his insistence upon the sharp antithesis between Christian belief and unbelief. Celsum was an early opponent of the Gospel. One of the early Church fathers, Origen, in his work Contra Celsus completely dismantled the attack of Celsum. Our blog publishes in the spirit of Tertullian and Origen.") PUBLISHER'S NOTE: How delightfully eclectic! A banker, with a passion for theology, who applies his analytical abilities to reforming the tattered criminal justice system. Bravo!

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BACKGROUND: Perth, Australia. Patrick Waring who spent a year in jail after being falsely accused of raping a girl pictured at home with his dad Terry Waring and sister Danielle Waring. the column continues. The documentary on SBS, "Every Family's Nightmare", showed just how police and prosecutors can be dedicated to the cause of getting it thoroughly wrong - and the role that forensics played in helping incriminate an innocent youth.

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"The murder of the Kahui twins remains officially unsolved. Their father was charged, but acquitted with the jury allegedly deliberating for one minute," the post, published on June 11, 2010, begins, under the heading,"Police Investigation Procedures
Behind The Time."

"The Star-Times understands the Kahui jury deliberated for just one minute not 10 minutes as previously reported. As soon as the jury was sent to deliberate, members were polled and everyone said Kahui was not guilty that took one minute. The jury then went to lunch and returned its verdict as soon as lunch was over." Alexander, Miriyana (2008-06-01). "Loudmouth juror put Kahui trial at risk". Sunday Star Times. http://www.stuff.co.nz/4568159a10.html. Retrieved 2008-06-01," the post continues.

"A review of the police procedures by the Independent Police Complaints Authority indicated that the police had made some mistakes in the way they proceeded. Persistent questions remain over the Scott Watson conviction. The David Bain conviction was subsequently overturned. And in one of the biggest scandals of all, Peter Ellis remains falsely convicted in the Christchurch Creche Case and the justice system refuses to support an independent inquiry. This overt miscarriage of justice is exhaustively documented in Lynley Hood's book, A City Possessed.

While the current system is not broken, it is definitely impaired. Unfortunately, New Zealand is not alone. Recently, the Special Broadcasting Service in Australia aired the documentary Every Family's Nightmare which deals with a completely messed up case by the police in Western Australia. According to a piece in the Sydney Morning Herald,

Patrick Waring, 15, was accused of rape. The rape was supposed to have taken place several times in a busy Perth park in broad daylight close to the WA police academy. He was arrested in the middle of the night while his parents were away, and locked up. He was denied bail and kept in prison for almost a year.

The evidence was that Waring tried to chat up the young woman who made the allegation against him and saved her mobile number in his phone. This was something that initially he denied doing.

However, the forensic side of the case was a shambles. The accused's clothing, which the police used as evidence, was contaminated. The crime scene wasn't immediately secured and it became contaminated. The pathology reports showed an absence of young Patrick's DNA in the complainant's intimate samples, and vice versa.

But the police persisted in taking the case to trial, which was eventually thrown out.

The documentary highlights how critical changes made in the UK as a result of a number of high profile unsafe convictions have yet to be made in Australia, and to our knowledge, in New Zealand.

One of the important developments in England in the 1990s was the formal adoption by police and investigators of what is known as the ''eliminative'' approach. This followed a couple of high-profile miscarriage cases, the Guildford Four and the Birmingham Six. The eliminative approach requires evidence be applied in a way to eliminate people from the pool of suspects.

Police forces around Australia, and certainly in WA and NSW, use a ''nominative'' approach. A suspect is nominated and a case built around that person. This can and does mean evidence is used selectively. In England and Scotland the nominative approach is regarded as discredited. Not here, which may explain why Napper is on the nose with police in a number of Australian states.

Most of the unsafe convictions in New Zealand appear to have resulted from the nominative approach where a suspect is identified, then a case built around him or her. This inevitably violates a fundamental rule in investigation--that of keeping an open mind. It predisposes an investigation team toward ranking some evidence as important and relevant and discarding contrary evidence that does not fit the suspect.

By contrast the eliminative approach applies the eminently sensible dictum of Conan Doyle, expressed by Sherlock Holmes: "How often have I said to you that when you have eliminated the impossible, whatever remains, however improbable, must be the truth?" (From A Study in Scarlet.)

Secondly, the UK has elevated the role and importance of independent forensic investigation of the crime scene where the police are kept at arms length.

Also appearing in the documentary was Professor David Barclay, a Scottish forensic scientist, who led the reforms in Britain that place the forensic people in control of the crime scene. British forensic scientists are independent of the police and prosecutors, and call a lot of the shots in criminal investigations. Here the police run the whole show.

The UK approach at work can now be seen in the UK forensic crime dramas, such as Silent Witness where the forensic team clearly operates independently of the police. New Zealand has excellent forensic scientists. They remain underfunded and work at the behest and request and direction of the police. Police budgets determine how often, when, and where they are employed.

One wonders how many high profile miscarriages of justice and failures to convict we need to go through in New Zealand before these changes are made in New Zealand. The police, of course, will continue to deny anything is wrong. "Nothing to see here. Move along", will likely continue to be the order of the day. This is a deeply regrettable. The Sydney Morning Herald notes:

Barclay also worked on the famous Andrew Mallard case in WA. Mallard was accused and found guilty after making a false ''confession'' of the murder of the Perth jeweller Pamela Lawrence. It was Barclay who discovered the palm print of the real murderer kept in police files for 15 years. He also uncovered other evidence pointing to Mallard's innocence, which either had never been pursued by the police or covered up.

Who would be willing to wager that we would not have the same miscarriages of justice here in New Zealand as a result of the "nominative" approach in investigation and the police controlling the use of forensic teams."

The post can be found at:

http://jtcontracelsum.blogspot.com/2010/06/police-investigation-procedures.html

Harold Levy...hlevy15@gmail.com;