Journey of Discoverys
When John Barlow appealed his conviction for the murders of Gene and Eugene Thomas on the grounds that one aspect of the scientific evidence was misleading, the Privy Council agreed with him. But it dismissed his appeal anyway.
In doing so, the court was exercising its power to uphold a jury’s decision, even where process has been breached, if it believes it wouldn’t have affected the outcome.
It’s a provision which, as a lawyer for the Crown Law Office, Mathew Downs would often argue that the court should invoke. “But the more I called for appeals to be dismissed, the more questions I had about this provision. It really gives the court an enormous amount of power, and I wanted to know more about how it was applied.”
So it was “part professional need, part curiosity” that led him to embark on a PhD on the proviso to section 385(1) of the Crimes Act. As an alumnus of Otago’s Faculty of Law, it never occurred to Mathew to study elsewhere: “I knew the Department, and I knew Professor Kevin Dawkins would be an excellent supervisor. Everyone was very enthusiastic about my topic – it was great to be back.”
But despite having a clear idea about the area of law he wanted to study, Mathew says his literature review provided little in the way of direction. “The provision has been part of the British legal system since the Court of Criminal Appeal was established in 1907, so I assumed I would unearth a goldmine about its theoretical basis and implications in practice. But I only found about a dozen pieces of literature – a bit of case law, little theory, and very little discussion on how that theory applied to cases.”
Immediately, he says, this posed a significant methodological problem – figuring out how to logically analyse a topic that seemed to have no framework or boundaries. Eventually, he decided to start from scratch. “My thesis became a process of establishing the significant questions that needed to be asked, and then exploring them in turn.”
It was a daunting undertaking, involving many anxious moments, but Mathew credits his supervisor – “a formidable academic and an intensely practical man” – with helping him maintain a sense of perspective. About half way through, Mathew says he began to “see the shape” of the final thesis.
Striking the balance between discipline and flexibility is key, says Mathew. “You need to approach the project in a business-like way. For example, I decided I would deal with this question this year, that question next year, I wouldn’t go down this particular rabbit-hole.”
But equally, he says, it’s important to be open-minded to revising and adapting your approach as you go “and accepting that sometimes your ideas just don’t pan out.”
Mostly, Mathew believes that it is a passion for your subject that will get students through. Even after five years of working full-time in both Wellington and Auckland while studying part-time, he comments, “I still find this area of the law fascinating.”
He also found his thesis intersecting with his practice, both in terms of the cases he explored, and the process of discovery. “It brought me usefully back in touch with an academic approach of systematically working through a large problem. It was very worthwhile for me.”
Mathew’s thesis has been formally recognised by the Division of Humanities as being of exceptional quality.