conviction of Ross Gary Applegren for the murder of D'Arcy Clement Te Hira"> Reference to the Court of Appeal of the Question of the Conviction of Ross Gary Appelgren for the Murder of D'Arcy Clement Te Hira CATHERINE A. TIZARD, Governor-General ORDER IN COUNCIL At Wellington this 9th day of May 1994 Present: Her Excellency the Governor-General in Council WHEREAS on the 25th day of July 1985, Ross Gary Appelgren was convicted in the High Court at Auckland on a charge of murdering D'Arcy Clement Te Hira and was sentenced to imprisonment for life: And whereas, on the 2nd day of July 1990, the Governor-General in Council, on the consideration of an application, dated the 16th day of October 1989, made by Ross Gary Appelgren for the exercise of the mercy of the Crown in respect of the conviction, made an Order in Council, pursuant to section 406 (a) of the Crimes Act 1961, referring to the Court of Appeal for hearing and determination the question of the conviction of Ross Gary Appelgren for the murder of D'Arcy Clement Te Hira: And whereas, on the 8th day of November 1990, the Court of Appeal quashed that conviction and made an order for a new trial: And whereas, on the 28th day of May 1992, after a new trial, Ross Gary Appelgren was again convicted in the High Court at Auckland on a charge of murdering D'Arcy Clement Te Hira and was sentenced to imprisonment for life: And whereas an application, dated the 29th day of October 1993, has been made by Ross Gary Appelgren for the exercise of the mercy of the Crown in respect of that conviction upon the grounds (among others): (a) That in 1993 two prison officers, Mark Anthony and Dominic Edward Malcolm, made affidavits and also gave statements to the Police which record the prison officers' recollection of a conversation at Paremoremo prison with an inmate of that prison, Rimaati Kaipo, which conversation apparently took place in November 1990; and (b) That both the prison officers state that during the conversation Rimaati Kaipo (formerly an inmate at Mt Eden prison) told them that he had arranged for another inmate at Mt Eden Prison to carry out the assault that caused the death of D'Arcy Clement Te Hira, and that Ross Gary Appelgren was not responsible for or involved in that attack; and (c) That both prison officers further state that they reported the conversation to the Police shortly after it took place; and (d) That in 1993 Rimaati Kaipo also made an affidavit in which he acknowledges that he had a conversation with the two prison officers, Mark Anthony and Dominic Edward Malcolm, about the circumstances surrounding the death of D'Arcy Clement Te Hira and states that he does not wish to say anything further about what he said to the prison officers or comment on whether or not what he allegedly said is a true account of the circumstances surrounding the death of D'Arcy Clement Te Hira; and (e) That the contents of the affidavits and statements made by Mark Anthony, Dominic Edward Malcolm, and Rimaati Kaipo give rise to the possibility that Ross Gary Appelgren was not involved in the fatal attack on D'Arcy Clement Te Hira; and (f) That, having regard to the contents of those affidavits and statements, Ross Gary Appelgren ought not to have been convicted of murder: And whereas a Police job sheet exists which contains a Police officer's record of comments made by the prison officer, Mark Anthony, during a telephone interview conducted on the 10th day of December 1990: And whereas the job sheet records that Mark Anthony gave an account of the above-mentioned conversation with Rimaati Kaipo in similar terms to the affidavits and statements subsequently made by him and by Dominic Edward Malcolm in 1993: And whereas it appears that the said job sheet was not made available to Ross Gary Appelgren or his Counsel either before or at the trial of Ross Gary Appelgren in 1992: And whereas it appears that evidence is available which could lead the Court of Appeal to the conclusion that the trial was unsatisfactory and that a miscarriage of justice might have occurred: Now therefore, pursuant to section 406 (a) of the Crimes Act 1961, Her Excellency the Governor-General, acting by and with the advice and consent of the Executive Council, hereby refers to the Court of Appeal for hearing and determination the question of the conviction of Ross Gary Appelgren for the murder of D'Arcy Clement Te Hira. DIANE WILDERSPIN, Acting for Clerk of the Executive Council.2