Doubt and disquiet over some of NZ's infamous murder convictionsby Donna Chisholm and Mike White
Doubt and disquiet linger over a number of murder convictions in New Zealand criminal history. Mike White and Donna Chisholm update three of the most high-profile cases.
On January 1, it was be 20 years since Olivia Hope and Ben Smart disappeared. The pair were with hundreds of others celebrating the New Year at Furneaux Lodge in the Marlborough Sounds, and were last seen boarding a yacht with a mystery man who offered them a place to sleep. Nothing was ever heard from them again.
Police quickly focused on Picton yachtie Scott Watson, who had been partying at Furneaux Lodge before leaving early the next morning. Despite police never finding any bodies, Watson was convicted of murdering 17-year-old Olivia and Ben, 21. The only physical evidence connecting the pair with Watson were two of Olivia’s hairs supposedly discovered on Watson’s yacht.
The case has become one of the most controversial in New Zealand’s history, with growing public support for Watson’s claims he is innocent.
However, authorities have seen things differently. Watson was sentenced to a minimum of 17 years in prison and, having served that, has been turned down twice for parole. After his hearing in December last year, the Parole Board claimed his risk of violent reoffending was very high. And in what was seen by many as a particularly harsh decision, the board said Watson’s next appearance before them would not be for another four years.
Watson has always insisted he never met Ben and Olivia, nor were they ever on his yacht. He repeated this to Olivia’s father, Gerald Hope, in a meeting at Rolleston Prison last year arranged by North & South.
Chris Gallavin, Massey University’s deputy pro vice-chancellor and former dean of Canterbury University’s law school, last year presented a television docudrama about the case and says Watson is in a very difficult situation, despite virtually all the evidence against him now being called into question.
“I think he’s got enough evidence for us to not sleep easy at night about his conviction. The Crown don’t agree with that, and the courts aren’t going to agree with that, so what he has to do to clear his name is to positively prove it was somebody else. He has to positively prove he’s innocent.
“But if he’s not been able to do that to date, and it’s been looked into and discussed in the media and it’s not been enough – what more would he have to do? And that’s, basically, somebody needs to find the bodies; somebody needs to find that ketch that has DNA or something preserved on it; somebody needs to come forward and say, ‘It was me.’ If one of those three things doesn’t happen, then he’s forever going to be a man on parole, at best, if not a man in prison.”
The convoluted and complex case of Mark Lundy, twice convicted of murdering his wife, Christine, and seven-year-old daughter, Amber, took yet another twist this year.
Lundy, whose initial conviction was quashed by the Privy Council in 2013, was again found guilty at his retrial in 2015, but appealed this verdict in October.
In the Court of Appeal, his lawyers argued scientific evidence presented to the second jury should never have been admitted; that the judge should have more clearly warned the jury not to use Lundy’s demeanour as a tool in deciding their verdict; and the Crown case that Lundy made a secret “killing trip” from Wellington to Palmerston North and back, was simply impossible because new tests show there would not have been anywhere near enough petrol.
The fact that between the first and second trial, the police and Crown dramatically changed their theory of how Lundy supposedly killed his family was also focused on. At his first trial, the case was that Lundy made a 300km round trip between Petone and Palmerston North at incredible speeds in rush hour to kill his wife and daughter around 7pm.
Thirteen years later, and just two weeks before his second trial, the Crown announced it had come up with a completely different scenario: that Lundy had in fact driven very sedately back to Palmerston North and murdered Christine and Amber some time after 2.30am. In doing so, they rejected the evidence of numerous witnesses and arguments they’d relied on to convict Lundy at his first trial.
But one thing the Crown didn’t change was its claim that two tiny specks found on Lundy’s shirt after the murders were Christine Lundy’s brain tissue. “No husband should have his wife’s brain on his shirt,” thundered Crown prosecutor Phillip Morgan QC to the second jury – and they agreed, sending Lundy back to jail.
But Lundy’s lawyers have continued to challenge the scientific techniques which identified the specks as brain tissue, labelling them novel and untested in a forensic forum.
At October’s hearing, three Court of Appeal judges heard arguments for three days about these and other matters.
Further analysis is being carried out on one of the scientific tests in question – known as mRNA – and the Crown have until mid-December to respond to this. However, even if the Court of Appeal agrees with Lundy’s lawyers that this mRNA evidence shouldn’t have been allowed at his retrial, it may still decide there was enough other relevant evidence to reasonably allow the jury to have found Lundy guilty.
Both the Crown and Lundy’s lawyers have been asked to provide arguments on this, as well as submissions on whether Lundy should be tried for a third time, if his appeal is successful. A further Court of Appeal hearing might be required, and a decision may not be released until early 2018.
David Tamihere’s lawyer will ask Prime Minister Jacinda Ardern to appoint a QC to investigate whether Tamihere’s convictions for the murders of Swedish tourists Urban Höglin and Heidi Paakkonen should be set aside.
Lawyer Murray Gibson says he hopes Ardern will emulate her predecessor Sir Robert Muldoon, who appointed a QC to examine the Arthur Allan Thomas case in 1978 before pardoning Thomas a year later. A Royal Commission of Inquiry subsequently found the evidence against Thomas was planted by police.
Gibson says the circumstantial case against Tamihere has unravelled. The successful private perjury prosecution in August of one of the secret witnesses at Tamihere’s trial was yet more evidence of that. The jailhouse nark testified that Tamihere told him he’d sexually assaulted and murdered the Swedes, had dumped Höglin’s body at sea and given his watch to his son. Tamihere told North & South he felt his case was lost from that moment because of the powerful effect it had on the jury.
The so-called Secret Witness C later retracted his evidence, saying in an affidavit that police had offered financial incentives and support for his parole bid. When the Independent Police Conduct Authority investigated, he retracted the retraction, claiming he’d been forced to lie because of threats by other inmates.
In October, Secret Witness C was jailed for eight years and seven months on eight perjury charges. The judge revoked name suppression, but allowed interim suppression ahead of Secret Witness C’s intended appeal against the convictions. It is the first time a police secret witness has been prosecuted for perjury.
Justice Christian Whata called the witness’s lies a “brazen assault on the foundation of our criminal justice system” and it appeared to be “the worst example of perjury within this jurisdiction”.
His testimony corroborated the crucial evidence of two trampers who’d claimed to have seen Tamihere with a woman who looked like Paakkonen at Crosbie’s Clearing at the time the Swedes went missing, in April 1989. The trial judge had earlier ruled the trampers’ evidence was so tainted by unacceptable police identification practices that it was inadmissible. The Court of Appeal overturned that decision, partly because of the secret witness corroboration.
Gibson, who in 1996 successfully petitioned the Governor-General for a Royal Prerogative of Mercy in the case of David Dougherty, who was wrongfully jailed for rape, began acting for Tamihere at around the same time. He’d intended to make the same application in the Tamihere case after the perjury convictions, but now believes the matter is sufficiently egregious and urgent that it should go straight to the Prime Minister.
“The shocking ramifications of the guilty verdicts against Secret Witness C need to be acknowledged and an appropriate response given to maintain continued confidence in the criminal justice system. At the very least, Mr Tamihere should be entitled to a retrial, or an independent inquiry as to whether there was ever sufficient evidence to return safe verdicts.”
This was published in the December 2017 issue of North & South.
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