Source: Radio New Zealand
David Tamihere in 2017. RNZ
David Tamihere will likely have to wait until July to find out whether he will be retried for the 1989 murder of two Swedish tourists.
The Supreme Court quashed his convictions six weeks ago for the murder of Urban Höglin and Heidi Paakkonen, saying Crown prosecutors must decide whether to hold a retrial.
The 72-year-old had been due to appear at a procedural High Court hearing on Wednesday but that did not go ahead and was now set down for July.
When his convictions were quashed, Tamihere returned to being a murder-accused, facing the original two charges in the court.
The question now was whether he would go on trial for them again.
Former High Court judge and former crown prosecutor Hon Simon Moore KC said there were a “galaxy of different matters” the Crown weighed up when making decisions on retrials.
Speaking generally, rather than about Tamihere’s case, Moore said the Crown had to ask itself whether it had a reasonable prospect of conviction.
“If witnesses are not available or the complexities of running a trial decades later mean that test isn’t satisfied, then that is a factor the Crown will take into account – along with whether it is in the public interest to continue,” he said
There were a number of aspects to consider when it came to witnesses, he said.
“The first one obviously is whether those witnesses are still alive or available. And obviously if you are talking about decades, there will be challenges in those areas.”
It was possible memories or perceptions of events had changed, although witnesses had statements from the time to help, he said.
Prosecutors also weighed up social factors – such as the health of the defendant – in their decisions and they would consider any sentence that has already been served.
The cost of running another trial was a consideration, but never a determinant on its own, Moore said.
Since Tamihere’s original trial, some crown witnesses had died, and one, prison informant Robert Conchie Harris, had been convicted in 2017 of perjury in relation to the case.
That conviction sparked the round of appeals by Tamihere that led to the Supreme Court.
The compensation question
Tamihere served 20 years in prison before being released in 2010 and was on parole until his convictions were quashed.
If the Crown did not seek another trial and the charges were dropped he could seek compensation for wrongful imprisonment.
If successful, he could get millions of dollars.
But that was not a given.
Former High Court judge Hon Rodney Hansen, KC, was appointed to oversee two high profile claims for wrongful murder convictions and imprisonments – Teina Pora, who got $3.5 million and Alan Hall who got $4.9 million.
If Tamihere sought compensation, the onus would fall to his legal team to prove he was innocent on balance of probabilities.
That was different to a trial where the onus was on the crown to prove guilt beyond reasonable doubt.
Proving innocence was not normally an easy task, Hansen said.
“It’s not sufficient to show that he was wrongly convicted, he must show that on balance he is innocent, he did not do it,” he said.
It seemed any compensation claim relating to the case would be complex, because the case itself was complex, he said.
“It was a real who-dunnit from beginning to end and it went through many twists and turns,” he said
“There would be a lot of evidence there would have to be traversed and a lot of highways and byways you would have to explore.”
If someone was seeking compensation, the government normally appointed a retired judge, or someone with expert legal credentials, to investigate and make recommendations.
But the decision about whether to give compensation was ultimately with the government, usually cabinet, which would review the recommendations before deciding.
In its March decision, the Supreme Court said one of the key reasons for quashing Tamihere’s convictions was the fact the Crown’s case had changed so much since the original trial.
“We emphasise that there are simply too many questions on the Crown’s new theory of the case, which have not been tested, for an appellate court to reach a conclusion about guilt,” the decision said.
“That does not mean that a jury, properly directed, could not possibly be satisfied of guilt, but that would need to be decided on a retrial, which this court has now directed.”
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– Published by EveningReport.nz and AsiaPacificReport.nz, see: MIL OSI in partnership with Radio New Zealand