Mark Lundy's lawyer on NZ justice system and why even the guilty need good defence

"We have innocent people in jail."
"We have innocent people in jail." Photo credit: Supplied / Getty Images.

My house, my bubble: As New Zealanders stay home to fight COVID-19, Fiona Connor is talking to well-known Kiwis about what's helping to pass the time, while learning more about their craft and passions.  

Four weeks ago, Jonathan Eaton QC never would have imagined he'd be opposing an application to put his client back behind bars for life via teleconference.

But on Tuesday morning, that was the reality he faced. Life as one of New Zealand's top defence lawyers is looking a little different during lockdown. 

Working from home isn't totally new. In the aftermath of the Christchurch earthquakes, for instance, Eaton and his assistant had to come up with ways they could remain productive. 

But for nearly a month now, he's been forced to appear in court by way of virtual meeting rooms or telephone conferences, and to use Zoom meetings to keep in contact with his chamber colleagues and attend council meetings.

Eaton began his career as a lawyer in 1988 before becoming a barrister in 1998, and was made a Queen’s Counsel (QC) in 2013. He has practised predominantly as a defence lawyer but dabbled in prosecution for three years. 

His name is associated with some of the country's highest-profile cases - the murder prosecutions of Gay Oaks, George Gwaze, Rex Haig and Mark Lundy, and most recently Dunedin doctor Venod Skantha. He was also involved in one of New Zealand's biggest fraud trials when he represented South Canterbury Finance staff.

He's locked down on a three-acre lifestyle block on the outskirts of Christchurch with his wife, three kids aged 24, 22 and 17 and his dog Wesley, who is recovering from knee surgery and getting plenty of attention. 

Here Eaton tells Newshub how he's making the time away from his office work, his views on the justice system and why guilty need a good defence. 

Fiona Connor: What does a day for you in lockdown look like? 

Jonathan Eaton: I no longer put on a suit and tie for work. I tend to spend the mornings in my home office reading and responding to email, dealing with any matters that might affect the liberty of the individual and otherwise reading the dozen or so files I loaded into boxes to bring home in anticipation of the lockdown. 

Like many of my colleagues I am sure many barristers are using the lockdown to engage in trial preparation that would usually be left far closer to the trial date. The frustration of course is that all our trial work through to at least August has gone. 

I was lucky to get my hands on a tennis ball machine shortly before the lockdown started so in the early evenings I have been hitting several hundred backhands a day to try and surprise my tennis buddies when normality resumes. 

Between emails, call and Zooms I have been working through my list of chores - fixing fences, painting sheds and sorting 15 years of archived files.

My normal working week would involve multiple court appearances for the conduct of legal arguments, appeals and trials either before judges or juries. All that work has been on hold for the last four weeks. 

The former Palmerston North home of Eaton's client Mark Lundy.
The former Palmerston North home of Eaton's client Mark Lundy. Photo credit: Getty Images.

FC: Is there anything you have been missing during this time?

JE: As a barrister, much of my work is 'on your feet' advocacy. With the courts operating at a very basic level there is very limited opportunity to argue cases. For now, more time is spent reading. I also miss the collegiality of chambers, debating the law over coffee with a colleague. To fill that void we have chambers drinks via Zoom on Wednesday evenings. 

On a more personal level, I am really missing my regular paddle-boarding both on Lyttelton Harbour and in the waves at Sumner. Sitting on your paddleboard with a group of mates in the middle of Lyttelton Harbour whilst sorting the world’s problems is a regular part of my normal. I also miss my daily chat with one of my homeless mates on Hereford St, and having not ventured into town since the lockdown, I often wonder how he is going.

FC: When you are having a quiet moment to yourself what do you reflect on?

JE: I do spend a lot of time thinking about the criminal justice process, its strengths and weaknesses. I frequently write an imaginary speech denouncing (without fear of stepping on toes) the shortcomings in the way we prosecute crime in New Zealand. This stems from my frustration that we so often treat social or behavioural issues as a criminal justice problem to avoid asking ourselves the far more difficult and challenging questions about how we change behaviours.

FC: Have you been able to use the extra time at home to achieve any tasks you have been putting off?

JE: As lawyers, we are obliged to retain our files for about 10 years after the event. And most of those files involve significant documentation. Pre-earthquake, those files were held in a storage room in my chambers in town. Post-earthquake I retrieved all my files (with the help of a crane) and started storing them at home. Until the lockdown those archive files were all stored in boxes in an old dairy shed on our property. The shed was overflowing with crushed boxes and I have forever been putting off the task of reviewing and restructuring my system.

During the lockdown I have pulled all those files out, ordered and received brand new storage boxes (an essential item!) and am taking a walk down memory lane looking back over the last 15 years or so of closed cases. I even emailed a former client to let them know I had found some car registration papers that had been missing for many years. He was thrilled to receive my email and a scanned copy of those papers.

FC: When you look back on your career are there any cases, in particular, that you gain a sense of pride from being a part of?

JE: I am very proud of having led the defence team in the George Gwaze case. That was a case where the police and prosecutors all accepted the very flawed expert opinion that a loved one had died from a sexual assault and suffocation when in fact there was no crime at all. Rather it was a case of a disease with which the local experts simply had insufficient experience to diagnose. It was very much a David and Goliath case - an immigrant defendant and his family up against the extraordinary power and resource of the State. That was a case that cemented my very deep concern regarding the way in which expert evidence is dealt with in criminal justice. From start to finish the case took almost a decade (involving an unprecedented two jury trials and two acquittals for murder) and concluded with George attaining New Zealand citizenship and inspiring one of his daughters to become a lawyer.

FC: Do you ever worry about defending someone who is guilty?

JE: That’s a question which defence lawyers are asked all the time and the answer is no. That is simply not an issue for a defence lawyer; judges and juries determine guilt. The role of the defence lawyer is to fearlessly and independently advocate on behalf of the defendant, to ensure that only admissible evidence is allowed at trial and to give advice as to whether that admissible evidence might prove the charge the prosecution have chosen to lay. It is important to remember that most people charged with a criminal offence in New Zealand plead guilty.

Eaton is associated with some of the country's highest-profile cases.
Eaton is associated with some of the country's highest-profile cases. Photo credit: Supplied.

FC: Do you think there are flaws within the NZ justice system?

JE: Yes of course, no criminal justice process is perfect. But generally, it works well notwithstanding the endless tinkering I have seen over my years as a lawyer. The most shameful flaw of the New Zealand process is the rate of imprisonment of Maori.

FC: Do you fear we have innocent people in jail in NZ? 

JE: Yes, we have innocent people in NZ prisons. How many? I don’t know. In 2006 the late Sir Thomas Thorp researched this question and reported that there might be 20 innocent persons in our prisons. What worries me is that it commonly takes what is called a white knight to take an interest in a wrongful conviction case before it sparks public interest or concern. The newly established Criminal Cases Review Commission will hopefully be the vehicle to identify these cases.

FC: What can compromise a fair trial?

JE: Key principles of fairness include the right to legal representation, guaranteed complete disclosure of material collated by the prosecution, adequate resources to investigate and prepare for trial, an impartial judge and jury, a prosecutor who does not strive for a conviction, and recognition and application of the presumption of innocence.

In the modern internet age, with information and opinion so freely available, I think there are challenges for the criminal justice process. The research tells us subconscious bias is real.

FC: Have you been binging any Netflix shows?

JE: Absolutely. I am a big sports fan but with no sport to watch Netflix has been taking a thrashing. Last week (on the recommendation of Kate Rogers), I watched the recently released Just Mercy, based on a true story of a miscarriage of justice in Alabama, and am now watching The Innocence Files on the recommendation of a legal colleague. It focuses on the establishment of the Innocence Project in America and follows the endeavours to identify and then remedy shocking miscarriages of justice.

Interestingly the first few episodes focus on gross miscarriages in two cases arising as a consequence of seriously flawed expert opinion in relation to bite-mark identification. 

These were cases and principles that I had become familiar with when reviewing the 'expert' evidence in the Lundy case and that were so live in the Gwaze case. In the documentary, both men were convicted based on an opinion that their own bite-mark matched the bite-mark on a murdered child. 

Through the unwavering efforts of dedicated lawyers acting pro bono, it was conclusively established that neither victim suffered a bite-mark at all. The narcissism and arrogance of an unapologetic expert whose evidence led to two innocent men spending decades in prison is so disturbing. I would strongly encourage all police officers, police prosecutors, Crown prosecutors and experts involved in criminal justice in New Zealand to watch the series. We in New Zealand are not immune from the failings that are being exposed internationally. On a lighter note, I am enjoying Season 3 of Ozark.

FC: What do you miss the most and what will you do as soon as we get out of lockdown?

JE: I will take my paddle board and head to the sea. I think the lockdown has reminded me how lucky we are to live so close to both the ocean and mountains and how being somewhat isolated from the rest of the world is not necessarily a bad thing.

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