From a certain point onward there is no longer any turning back

March 31, 2014 Andrew Geddis

Teina Pora is out of jail at last. Just how is it that he's spent more than half his life in there?

Being Pundit readers, there's no real need for me to tell you that the title of this post comes from Franz Kafka's The Trial. I thought it an apt source for a discussion of the unease which Teina Pora's case causes me as a "lawyer", because his experiences through the legal system are the sort of thing that the overused term "Kafkaesque" for once actually fits. In fact, there's a longer quote from the novel that seems purpose written for him:

In front of the law there is a doorkeeper. A man from the countryside comes up to the door and asks for entry. But the doorkeeper says he can't let him in to the law right now. The man thinks about this, and then he asks if he'll be able to go in later on. "That's possible," says the doorkeeper, "but not now". The gateway to the law is open as it always is, and the doorkeeper has stepped to one side, so the man bends over to try and see in. When the doorkeeper notices this he laughs and says, "If you're tempted give it a try, try and go in even though I say you can't. Careful though: I'm powerful. And I'm only the lowliest of all the doormen. But there’s a doorkeeper for each of the rooms and each of them is more powerful than the last. It's more than I can stand just to look at the third one.

Let's briefly recap Teina Pora's story (although Phil Taylor does a good job of it in this NZ Herald piece, while TV3's Third Degree also has covered the issue in some depth). Back in 1992, Susan Burdett was raped and murdered in her Papatoetoe home. Despite an intensive police investigation, there seemed to be no real progress on finding the person responsible. However, Mr Pora brought himself to the Police's attention when he apparently found a baseball bat (which was consistent with the murder weapon) in a park 5 kms away from the murder scene.

Despite apparently initially excluding Mr Pora from their enquiry, the Police came back to him as no other suspects emerged. He then provided them with a series of "confessions" about helping "two other men" carry out a burglary on Ms Burdett's house. The details of these confessions changed over time, as the Police kept on pointing out inconsistencies between what he was saying and what they could show through physical evidence.

While these confessions looked, shall we say, somewhat dubious in nature at the time (and have only grown more dubious since), and in spite of the fact that DNA samples from Ms Burdett's body did not match one provided by Mr Pora, he went on trial for her rape and murder in 1994. And a jury of 12 people considered that the evidence was sufficient to establish beyond a reasonable doubt that he was a party to Ms Burdett's rape and murder. Because he was convicted and sentenced to life in prison.

Then in 1996, the serial rapist Malcom Rewa was caught, and DNA testing conclusively proved that he had raped Ms Burdett. Whereupon he was charged with her rape and murder, but a jury could not agree on whether he was responsible for killing her. Consequently, he was convicted only of her rape (along with some 24 others). We might very well suspect that the fact that Mr Pora was already in jail for Ms Burdett's murder helped contribute to this outcome, as a jury could not be sure which of the two of them actually did the deed.

However, linking Malcom Rewa and Mr Pora to the offences committed against Ms Burdett poses some real problems:

Mr Pora had "confessed" that he helped two other people break into Ms Burdett's house - but Malcom Rewa's modus operandi in all of his other offending was to act alone;
Mr Pora was an associate of the Mongrel Mob, while Malcom Rewa was an associate of Black Power. These gangs hate each other, so exactly why Malcom Rewa would break his pattern and take a member of an enemy group to one of his crimes is ... somewhat hard to explain.

These sorts of problems then led to Mr Pora's initial convictions being quashed (although he remained in custody), with a retrial held in 2000. At which a jury once again convicted Mr Pora, and he was once again sentenced to life imprisonment. And in jail he then stayed for the next 14 years, until granted parole today ... meaning he can live outside of a prison cell while he waits for the Privy Council to decide his appeal in November against that 2000 conviction.

[Before I start discussing just why this case makes me uneasy (although hopefully the synopsis I've given is enough to lay the groundwork), a quick aside to note another point of legal interest. The year preceeding Mr Pora's retrial and conviction in 2000, Parliament passed legislation that purported to retrospectively impose a minimum non-parole penalty for "home invasion" offences - including Mr Pora's. Whether that legislation did apply to Mr Pora's sentence then led to the case of R v Pora in the Court of Appeal, where that court came as near as any in New Zealand to using the NZ Bill of Rights Act to tell Parliament it just couldn't do this sort of thing (at least, not unless it was completely and utterly explicit about its intention to do so).]

OK - enough background. Why is it that I, as a "lawyer", care about what has happened to Mr Pora? I guess my basic problem is that I'm pretty much convinced that Teina Pora just wasn't involved in Ms Burdett's rape and murder at all (a conviction I share, it should be noted, with Ms Burdett's brother, while even the Police Association think that there's solid grounds to question his convictions). I think that he's an innocent man, without the sorts of doubts that I have in regard other noteable possible cases of "wrongful conviction" in New Zealand. And yet, even though the New Zealand legal system has treated him in a "proper" way, he's had the "correct process" applied to him, and his rights "have been respected", that basic innocence hasn't protected him. In short, the system has worked just like it was supposed to ... and Mr Pora's spent more than half his life in a jail cell for something that he didn't do.

Now, I recognise that questions have been raised about the Police's initial investigation of the crime, the inducements they provided to various witnesses who gave evidence against Mr Pora, and apparent reluctance to help with the process of reopening his case for further scrutiny. Those are matters that the Independent Police Conduct Authority may look at in time. What seems clear, however, is that this isn't a case like Arthur Alan Thomas, where the Police actively have stitched up someone for the crime.

Instead, we've got members of the Police presenting evidence in good faith that they may have had some personal doubts about, but thought should be judged by a Court in order that a possible offender could be brought to justice. And that evidence was presented to a Court in good faith by Crown Counsel, who were doing their job of assisting it to determine if Mr Pora was (beyond reasonable doubt) guilty of the accusations against him. And a judge applied his legal training in good faith to decide whether that evidence should be allowed before a jury. And that jury in good faith looked at the evidence, and thought it proved Mr Pora was guilty.

Meaning that Mr Pora has been in jail for the last 21 years ... even though he didn't do the thing the system has convicted him of.

There's two things I want you to think about here. First of all, if Mr Pora had not been a young, Maori man with links to a gang, do you think the system (operating "properly" as it did) would have treated him like it did? Put it this way: imagine if back in 1992 someone like me, a 40-something, Pakeha Professor of Law, had walked into a Police station and started making all the "confessions" that Mr Pora did about Ms Burdett's killing - confessions, remember, that were demonstrably inaccurate in their details. Do you think those confessions would have seen me brought before a court, or referred to emergency psychological services for assessment and treatment? And if I had somehow ended up in a jury box, what are the chances a jury would look at me and think "well, he may have been a bit confused in the details, but it sure sounds like the sort of thing this sort of person would do"?

(If you need help answering that question, read this.)

And then, even given the pretty compelling reasons for doubting that Mr Pora's conviction was safe, why is it that it took another 14 years for his case to finally get to a place where (just maybe) that wrong can be righted? Sure, there are some individuals that have fought long and hard in his corner, and they should be praised for doing so. But why did it take the rest of us so long to care? What is it about him that failed to grip the public imagination, when so many other purported cases of "wrongful" imprisonment have captivated the country?

So this is why Mr Pora's case makes me very, very uneasy. As lawyers, we spend so much of our time obsessing about process. We assume that once we put the right way of dealing with issues in place, then the right outcomes will follow. And then, once we've put those processes in motion and watched them work in the way we think that they should, we turn our eyes away and just assume on faith alone that what they produce is "justice".

Teina Pora's case has to shake that faith to its core. We treated him the way the law says we should. The process was followed properly. He's lost 21 years of his life to a jail cell for something he didn't do. That just isn't right.