Reference to the Court of Appeal of the Question of the Convictions of David Wayne Tamihere for Murder
PATSY REDDY, Governor-General
ORDER IN COUNCIL
At Wellington this 20th day of April 2020
Present:
Rt Hon JACINDA ARDERN, Presiding in Council
Her Excellency the Governor-General, acting under section 406(1)(a) of the Crimes Act 1961 and on the advice and with the consent of the Executive Council, refers to the Court of Appeal the question of the convictions of David Wayne Tamihere for murder, entered in the High Court at Auckland on 5 December 1990.
The background to and reason for the reference appear in the Schedule.
In this schedule,—
applicant means David Wayne Tamihere
Crosbies Clearing means a clearing about 3 hours’ walk from the end of Tararu Creek Road, near Thames
trampers means John Thomas Cassidy and Theodore Melvin Knauf.
(1) On 5 December 1990, the applicant was convicted in the High Court at Auckland of the murders of Sven Urban Hӧglin and Heidi Birgitta Paakkonen, Swedish tourists who had disappeared in April 1989 while travelling in New Zealand.
(2) At the time of the applicant’s trial, neither body had been found.
(3) The prosecution case was circumstantial. An important element was the evidence of the trampers identifying the applicant as the man they had seen with a woman resembling Ms Paakkonen at around 3.00pm on Saturday 8 April 1989 at Crosbies Clearing.
(4) Other evidence at the trial also connected the Swedish couple and the applicant to areas close to Crosbies Clearing, including—
(a) evidence that the couple had their hair cut in Thames around lunchtime on Friday 7 April 1989; and
(b) evidence from witnesses who had seen the couple’s car parked at the end of Tararu Creek Road in the early afternoon of Sunday 9 April 1989; and
(c) evidence that in the days after the couple’s disappearance, beginning on Monday 10 April 1989, the applicant used their car in Thames, the Coromandel, and Auckland; and
(d) evidence that clothing and other possessions belonging to the couple had been found strewn in the scrub and bush at the end of Tararu Creek Road; and
(e) evidence that Ms Paakkonen’s jacket and wallet, and eating utensils belonging to the couple, had been found in 2 places along the track between the end of Tararu Creek Road and Crosbies Clearing.
(5) Among the other evidence called by the Crown was that of 3 prison inmates who said that the applicant had confessed to the murders to them in prison. Evidence from one of the inmates, Roberto Conchie Harris, supported the trampers’ identification evidence. Mr Harris testified that the applicant had told him about almost being “sprung” by “a couple” while alone with Ms Paakkonen in the bush.
(1) The applicant appealed against his convictions.
(2) In October 1991, before the hearing of the appeal, Mr Hӧglin’s remains were discovered in Wentworth Valley, on the eastern side of the Coromandel Peninsula and approximately 73 km by road from the end of Tararu Creek Road.
(3) The applicant’s grounds of appeal were amended in light of the discovery of Mr Hӧglin’s remains. One of the amended grounds of appeal was that the location of the remains was inconsistent with the Crown case, which had, the applicant submitted, proceeded on the basis that the couple were murdered and disposed of in the area of bushland near Crosbies Clearing.
(4) On 21 May 1992, the Court of Appeal dismissed the appeal. In relation to the location of Mr Hӧglin’s remains, the court was satisfied that the Crown had not tied itself to places of murder and disposal and that the applicant had the knowledge and means to move the body to where the remains were found.
4. Perjury proceedings
On 1 September 2017, Mr Harris was convicted of perjury in relation to 8 aspects of the evidence that he gave at the applicant’s trial. One of the charges related to his testimony that the applicant had mentioned almost being “sprung” while in the bush with Ms Paakkonen.
(1) On 28 June 2018, the applicant applied to the Governor-General for the exercise of the Royal prerogative of mercy in respect of his murder convictions.
(2) The applicant submitted, among other matters, that Mr Harris’ perjury convictions, when considered with the discovery of Mr Hӧglin’s remains, had so undermined the Crown case as to render his convictions unsafe. In particular, the applicant submitted that—
(a) The discovery of Mr Hӧglin’s remains in Wentworth Valley cast doubt on the trampers’ identification evidence because it was implausible that the applicant could have both disposed of the remains there and been at Crosbies Clearing with Ms Paakkonen on the afternoon of Saturday, 8 April 1989; and
(b) The reliability of that identification was further undermined as it was no longer supported by Mr Harris’ false evidence that the applicant had mentioned being “sprung”.
The reason for the reference is that the information referred to in clauses 3(2) and 4, taken together,—
(a) may raise doubts about the reliability of an important aspect of the Crown case, namely the trampers’ identification evidence referred to in clause 2(3); and
(b) could lead the Court of Appeal to conclude that a miscarriage of justice may have occurred.
MICHAEL WEBSTER, Clerk of the Executive Council.