DVD Review: Until Proven Innocent (the David Dougherty Story)

Earlier this year, to open its acclaimed "Sunday Theatre" season, TVONE screened a telemovie based on one of New Zealand's most infamous real-life criminal cases. UNTIL PROVEN INNOCENT was a thought-provoking and delicately-toned portrayal of a terrible miscarriage of justice, where David Dougherty was imprisoned for the rape of his young neighbour. The telemovie, written and produced by Donna Malane and Paula Boock of Lippy Pictures, was rescreened in August, and is now available on DVD.

After the first screening I wrote a review of the telemovie, including a wider commentary on the case, for NZLawyer magazine (Issue 106, 20 February 2009). I include this review for your information below. I can highly recommend this movie for anyone interested in true crime cases, or just good dramas in general. The telemovie was done as well as many an independent film, and sits alongside OUT OF THE BLUE as recent examples of great, understated, portrayals of infamous New Zealand real life crime stories. It has deservedly been shortlisted for 10 awards at the upcoming Qantas Film and Television Awards.

Until Proven InnocentA fortnight ago, TV One opened its new season of Sunday Theatre by screening Until Proven Innocent, a feature-length drama based on one of New Zealand’s most egregious miscarriages of justice. Craig Sisterson watched, and reflected

Imagine being falsely accused of one of the most heinous crimes imaginable, raping a child. Imagine your faith that the justice system will recognise the fact you didn’t commit the crime, gradually being eroded as the victim, the police, the courts and the public all point their finger at you as the perpetrator. Imagine having what you believe is clear-cut scientific evidence proving your innocence being argued over, twisted then disregarded at appeal. Imagine living with the fact your father died believing you were innocent, but never saw you set free. Imagine, if you can, being David Dougherty.

The producers of Until Proven Innocent give you a chance to do just that, with the well-made drama recounting the nightmare Dougherty endured throughout the 1990s, and the sterling work of a small group of supporters that helped him eventually clear his name, both in the courts and the eyes of the public.

Until Proven Innocent opens in the middle of the story, so to speak, with Sunday Star-Times reporter Donna Chisholm meeting barrister Murray Gibson at an Auckland party. Chisholm, wonderfully portrayed by Jodie Rimmer (In My Father’s Den, The Strip, Shortland Street), has been looking for a juicy crime story - chasing Gibson for comment about his client David Dougherty, who despite exculpatory DNA evidence had previously lost his appeal against a child rape conviction. Gibson, who hadn’t come on board until after the lost appeal, only had the Privy Council and the Governor-General as remaining options.

From there, the story moves forward, while glancing backward, as Chisholm joins Gibson and passionate DNA scientist Arie Geursen in working to free Dougherty. She meets shy and soft-spoken Dougherty within the castle-like walls of “The Rock”, Mt Eden Prison. “I didn’t hurt that little girl,” he says in a voice barely above a whisper, “If you’re going to write about me, I need you to know that”.

Peter Elliot (Gloss, Shortland Street, the Civil Defence ‘Get Ready, Get Thru’ ads) gives a great performance as lawyer Gibson. As he, Geursen (Tim Spite) and Chisholm battle the courts and public opinion to free Dougherty, the story repeatedly flashes back, showing us how an innocent New Zealander came to be sitting in prison.

We see David, as the crusading trio always call him, finding out about the attack and the accusation while working at the rail-yards in 1993. We see him voluntarily going into the police station to “clear up a misunderstanding”, offering to give blood and take any tests to prove his innocence, then being arrested; kick-starting a frustrating journey, full of setbacks and crushed hopes, that would take the rest of the decade and more to finally resolve. Relative newcomer Cohen Holloway (Eagle vs Shark) gives a brilliant performance as Dougherty, capturing the battered hope, nervousness, and growing obsessive compulsions of the wrongly accused.

We see him sitting quietly behind a screen in the court as his adolescent neighbour says her attacker was “David from next door”, his disbelief and overflowing emotions when the jury returns a guilty verdict. We see his aging father pushing for the original appeal, cornering Dougherty’s trial lawyer with information on improved DNA testing and the many inconsistencies in the victim’s evidence. We see his father stricken with cancer, then dying, then Dougherty’s appeal failing due to an ESR scientist hypothesising that even though DNA evidence clearly pointed to another offender, maybe Dougherty’s DNA was still somewhere in there as well.

One of the most laudable aspects of Until Proven Innocent, a production that deservedly earns praise across the board, is the tone the filmmakers take with what could be easily sensationalised subject matter. The film has a brooding atmosphere, a creeping sense of unease. There are many quiet, understated, thought-provoking moments - scenes with little dialogue, where actors and subtext are allowed to shine, the story radiating not from words, but looks and gestures.

Care is generally taken not to demonise any of those involved in the miscarriage of justice. The victim is portrayed delicately, as a child making an honest, even understandable, mistake in horrible circumstances. Human touches resonate throughout the film, from the actions of prison guards, covering Doherty’s handcuffs as he visits his dying father or distracting him with card games as he nervously waits the retrial verdict, to the look Doherty and the victim share after he finally hears the words “Not Guilty”.

The film ends with that 1997 retrial verdict, but Doherty’s ordeal continued for several more years, as Gibson, Geursen, Chisholm and other supporters had to battle an obstinate Minister of Justice to get an apology and compensation. Even after he was released, Dougherty became a target of overzealous interest groups, who blanketed an area he moved to with pamphlets identifying him as a child rapist, despite inscrutable evidence of his innocence. He finally received an apology and compensation in 2001, eight years after the attack and false accusation.

Two years later, in a satisfying if unusual footnote in such miscarriage of justice cases, the real rapist was finally caught; almost a decade after Dougherty was imprisoned for the crime. When NZLawyer spoke to the real-life Murray Gibson, he said “The most satisfying about the whole thing for us really was that the DNA profile that we were able to produce [from the more advanced testing they undertook] ultimately led to the conviction of the real assailant.”

Gibson, who is very flattered to have “such a distinguished actor” as Peter Elliot portray him in the film, lists three main lessons he would like everyone to learn from the case: that we need a separate Review Commission, as suggested by Sir Thomas Thorp, to investigate potential miscarriages of justice from all angles, not just legal procedure; that we need a separate storage facility for DNA reference samples, and that we need to realise organisations such as the ESR do occasionally make errors.

As for the man whose story was first publicised by Chisholm in the Sunday Star-Times, and has now been dramatised for television, Gibson says “He’s doing reasonably well, he’s in employment, and he’s keeping his head down”.