Paul Verdon: Midnight Express-type case puts NZ legal system in poor light

Allan Titford – a miscarriage of justice?

Midnight Express was the memorable 1978 movie that told the true story of Billy Hayes, a young American man caught by Turkish police attempting to smuggle hashish out of Istanbul. He was tried and sent to prison for four years, where he experienced much privation and abuse. But as he finished his time, he was shocked to learn that the Turkish High Court had added a further 30 years to his sentence. Now thoroughly demoralised, Hayes’ life in prison grew increasingly unbearable, until he concluded that escape was his only option …

Remarkably, there are some bizarre comparisons to be found in the story of Billy Hayes 40 years ago and that of New Zealand’s own Allan Titford, who was incarcerated in 2013 for 24 years, arguably for his first convictions. The most obvious parallel from this reviewer’s perspective is that both men could be labelled ‘a political prisoner’ of a sort!

In Hayes’ case, American president Richard Nixon was putting pressure on the Turks to enforce their drug laws. In Titford’s case, there is the background of a man losing his Far North farm in an unsound treaty claim. The seeming injustice of it all captured the hearts and minds of many New Zealanders in the 1980s. It also changed the political landscape on private property. But Titford’s story and his vow to one day reclaim his property may have made him a target – to be silenced! Perhaps it is all very convenient to hide the man away for so long.  But do we give our politicians and our legal system the benefit of the doubt on such a supposition?

You, the reader, must be the judge and jury – because Titford’s predicament is the subject of an extraordinary book titled Innocent Nil Debit, Exposing the Trial of Allan Titford, by Mike Butler. This is the 2^nd edition of the book. Butler wrote the first edition in 2018 and called it 24 Years, The Trials of Allan Titford. There are many additions and some new chapters, reflecting the fact that, by late 2021, Titford had ‘been to the Appeal Court, the Supreme Court, and two parole hearings without success.’

Titford’s journey and fate through our legal process seems rare, if unprecedented. His trial involved a massive 53 charges related to alleged incidents spread over more than 20 years. On the way, Titford’s reputation was transformed from a battling victim to a man that Television New Zealand (in 2013) called ‘a slave driver, a monster and a liar.’ The outcome is that, today, Titford is still ‘rotting’ in prison. A man who once had as much as $8 million in farms and assets, built up through sheer hard work, lost almost everything.

Author Butler meticulously peels off the layers of incompetence in the way Titford’s case has been handled over the past nine years. There are dozens of questionable points that he raises about the trial and appeals and parole board hearings – far too many than can be presented in a book review. It was, and remains, to quote him, a ‘shambles.’

Here though are a number of the major issues raised - issues that must lead any fair and reasonable person to wonder whether Titford is the victim of a gross miscarriage of justice:

*The legal battle was totally unequal. Titford had just six weeks to prepare for his trial in 2013 – whereas the Prosecution had had 10 detectives gather 30 hostile witness statements over six months before the arrest and the Crown another three years and a team of barristers to prepare for trial. Titford, by comparison, had to use a total of seven lawyers (some withdrawing, for reasons of conflict of interest) throughout the process. The Defence had far too little time to prepare. Unbelievably, there was no face-to-face meeting between Titford and his trial lawyer, John Moroney, before the trial.

*Susan, Allan Titford’s wife of 22 years, wanted out of the marriage and wanted a financial settlement. During her testimony, she admitted to providing false information to a court under oath, and she told the court she was sick of lying. Astoundingly, she had written three letters to Prime Minister David Lange in 1988 and another to the Queen in 1989 in regard to the Maunganui Bluff treaty claim on the family’s farm – and what she said at the trial directly contradicted what she had written in all four letters. Susan’s stories of rapes by her husband lacked dates and details, even though she kept a diary. She could not recall whether one ‘offence’ was in 2002 or 2008, for example. Her ‘financial motivation’ was documented repeatedly, but defence lawyer Moroney glossed over it during the trial.

*Another key witness, Richard Cochrane, Susan’s younger brother, was a potentially hostile witness also. He had been convicted of tax fraud and Allan Titford had provided the IRD with evidence. Here was an opportunity for revenge …

*The inability of the prosecution to state exactly or even near when many of the alleged offences took place. An extreme example was the 30-plus children’s assault charges, which were often very vague in their ‘datelines.’ This prevented the defendant from proving that he was absent (working on his farm in Tasmania, as he regularly had to do), at such a time, for example. Author Butler cites evidence of ‘orchestration’ by wife Susan with the children. A police interviewer recorded how Susan had written ‘notes’ for them - to help them ‘remember’ alleged incidents. A daughter, Ulanda, is quoted as stating she “didn’t remember any of it.”

*Fourteen of the charges involved uncorroborated allegations. Most witnesses in the trial did not face rigorous examination and cross-examination.

*Titford’s defence never presented any witnesses whatsoever, at trial or at the appeal. There are conflicting versions of why this was so. But clearly many on the large potential witness list could have provided different or fresh evidence that might have changed outcomes.

*Extraordinarily, the defendant’s appeal hearing in 2017 took just 90 minutes. The potential witness list was said, by the three judges, to be potentially incapable of presenting any ‘new’ evidence.  We learn that the chairman of the appeal judges, before the appeal, had talked with both the trial judge and the trial defence’s lawyer – and both told him that there were no irregularities and nothing amiss with the trial. This stance appeared to support Titford’s conviction and sentence, instead of examining the failures of the trial.

*The length of the defendant’s jail term – believed to be a New Zealand record for its type – resulted from a number of shorter jail terms being ‘stacked’  on top of each other, to be served consecutively and not concurrently. Murderers and other ‘horrible’ offenders have historically received less time behind bars.

*Perhaps the biggest ‘injustice’ was the lack of severance – the common-sense necessity to break up a huge case into separate trials because of the sheer size and unmanageability of the overall ‘project.’ For example, how can legally untrained juries handle the detail of a four-week trial like this one and expect to obtain the right result? Court records prove that the jury deliberated for only a day and a half – or an incredibly short 10 minutes per charge! Eleven majority verdicts also showed that the jury was unconvinced.

*Here there were 53 charges – involving rape against his wife; violence against his children; perjury and perverting the course of justice; attempted arson and arson; reckless discharge of a firearm; and threatening to kill. Ironically, these six categories were the way the court sensibly divided the case when discussing sentencing. On this point, appeal defence lawyer Ron Mansfield had written that ‘the nature and the extent of the indictment cannot be justified and has to be seen as an extreme example of abuse, and the resultant prejudice obviously significant, therefore resulting in a miscarriage of justice.’

The author demolishes the cases whereby Titford was found guilty of arson and unlawful use of firearms. A deathbed confession of the arson by Graham Cochrane, Susan’s father, was never mentioned at the trial, despite it being known by several relatives who could have testified. Five different witness accounts of a firearms incident could have cast doubt on that one too.

 *The behaviour of John Carter, MP for Northland and sometime Minister of Civil Defence, in becoming heavily involved in the case. In 2010, Carter coaxed Susan to provide a list “of all the things that happened” at Maunganui Bluff and (according to an affidavit from potential witness Ross Baker), explained how she could be protected from perjury charges if she assisted the Crown. But as the author writes, the government Cabinet Manual (section 4:14) states that: ‘Ministers do not comment on or involve themselves in the investigation of offences or the decision as to whether a person should be prosecuted, or on what charge. Similarly, they should not comment on the results of particular cases.’

 

The author covers the prisoner’s plea to the Supreme Court, the country’s top court. Titford’s legal team raised many points – including one that ‘purported child victims appeared unaware of the alleged offences.’ But in its judgement dated March, 2021, the panel rejected Titford’s view that his defence in the trial was inadequate or that key documents were omitted. New evidence submitted was rejected as ‘not meeting the test for admission.’ The author states: ‘The strength of the evidence that was both not presented and is now available supports the view … that the trial led to a miscarriage of justice. It was a pity that the Supreme Court was not motivated to look into the case.’

Titford also had two hearings of parole – in March and July, 2021. Apart from the usual requirement that the applicant ‘admit guilt’ (Titford did not), the board’s decision shows it misread or misinterpreted a report from a psychologist on his likelihood of sexual re-offending. Whereas the board wrote that Titford has a 100 per cent chance of re-offending in five years, the psychologist had actually said he had a 2.1% chance!

To quote the author’s Conclusion, ‘Evidence of failures in Allan’s case, in investigation, in the trial and appeal procedure, in witness truthfulness, and errors by counsel,  have all been cited in this book.’

It all points to the fact that the evidence in Titford’s case was both ‘skimpy and contradictory.’ To quote from the book, ‘the credibility of witnesses is in doubt. The scale of offending was at the lower end. Evidence of the use of weapons in alleged assaults was not robust. Yet the trial resulted in a large number of convictions. And the total jail time for that type of offending is probably a record.’ And that ‘the sentence he is serving appears to be manifestly excessive.’

Nowadays, after the influence of major media, among other things, many people will say Titford ‘deserves’ to be where he is. He was portrayed as a ‘monster.’ But the affidavits from many potential witnesses and his subsequent near-exemplary behaviour in prison belies this reputation.

Butler’s book reminds of the investigative journalism undertaken by the late Pat Booth, work that finally led to the royal pardon and $1 million compensation paid to another farmer, Arthur Allan Thomas – twice convicted of the 1970 Crewe murders and serving nine years in prison. There have been quite a number of other miscarriages of justice in this country – David Dougherty, David Bain and Teina Pora … Is Allan Titford going to be afforded the opportunity to join them?

Butler raises the prospect of calling on the new independent body, the Criminal Cases Review Commission, launched last year to investigate miscarriages of justice. ‘Allan is in the gap in the New Zealand criminal justice system that [this institution] is intended to fill,’ writes Butler.

Only Titford knows whether he was guilty of the crimes. But whether he got a ‘fair trial’ is quite another matter. This author has brilliantly exposed the shortcomings in our legal system and makes a powerful case for ALL the evidence to be presented and examined – and for Titford’s sentence to be quashed if he is found to be ‘not guilty.’

Footnotes.- The author devotes a new chapter (called ‘Evidence undermines claim’) to the ‘injustice’ that led to the Titford family and others losing their Maunganui Bluff farms as a result of the Te Rorea treaty claim.

Secondly, Titford is now an Australian citizen. He renounced his NZ status in 2013, the day he was found guilty. If paroled in the future, he will be deported to Australia.

INNOCENT nil debit – Exposing the trial of Allan Titford, Mike Butler, Limestone Bluff Publishing, 230 pages, illustrated, $35 (plus postage) from https://trosspublishing.co.nz/

Paul Verdon is an author and historian.