Source: Radio New Zealand
Poremoremo Prison guard Mark Anthony Mark Anthony
Two prison guards have spoken for the first time about a prisoner’s confession that Ross Appelgren was not responsible for the 1985 murder of Darcy Te Hira in the kitchen at Mt Eden Prison.
The RNZ podcast Nark hosted by Mike Wesley-Smith has been investigating the Appelgren case. In today’s episode, former Paremoremo prison guards Mark Anthony and Dominic Malcolm reveal that in November 1990, the prisoner told them he knew Appelgren wasn’t involved in the murder, because he had ordered the attack himself.
“He said he organised it,” Anthony says.
RNZ has decided not to name the prisoner, because doing so could put him and the Appelgren appeal at risk. He is instead referred to as “Danny” in the podcast.
Appelgren was twice convicted of murdering Te Hira but died in January 2013 still proclaiming his innocence. His widow, Julie, is seeking to overturn his conviction in the Court of Appeal and have his name cleared posthumously.
Appelgren, who only learned about Danny’s confession after he was convicted, successfully petitioned the Governor-General in 1994 to refer his case back to the Court of Appeal. Acting on the advice of then-Justice Minister Sir Douglas Graham, the Governor-General’s referral stated the prosecution’s failure to disclose Danny’s confession to Appelgren’s lawyers at his retrial meant “a miscarriage of justice might have occurred”.
However, Appelgren’s failing finances and health meant his appeal hearing never went ahead, so no judge or jury have ever heard the guards’ evidence of Danny’s confession. Both Malcolm and Anthony say they believe Appelgren was innocent and that the police failed to properly investigate Danny’s confession.
Dominic Malcolm remembers Danny coming to talk to them on a stormy day in November 1990, shortly after Appelgren had had his first conviction overturned.
“What [Danny] did say was, was that Ross Appelgren had been convicted for using a paddle out of the kitchen to kill Darcy and Danny stood there categorically and said Appelgren didn’t do it”.
His former colleague Mark Anthony remembers the same thing.
“[Danny] immediately said that it was nothing to do with Appelgren… And then just opened up and nominated the inmate that he said actually did do it, and [Danny] said that he was part of it, and then he revealed that Darcy Te Hira was supposed to have only taken a warning shot to the back of the head.”
Anthony says Danny told them he had another prisoner hit Te Hira with the paddle because they had been dealing drugs in Mt Eden and Te Hira “was taking a bit for himself”.
Malcolm and Anthony say they reported this to police at the time. Police records suggest that after interviewing Danny and Anthony, the claims were dismissed as not credible and were not passed on to Appelgren’s lawyers.
Danny’s conversation with the guards only came to light in 1993 when Anthony mentioned it in passing to Appelgren himself in Paremoremo prison.
TV3 journalist Keith Davies asked investigation head Chief Detective Inspector Peter Jenkinson if it cast doubt on Appelgren’s conviction. “I don’t. I don’t personally think so,” he replied.
Ross Appelgren was twice convicted of murdering fellow prisoner Darcy Te Hira in 1985. Corrections NZ
Others have also poured doubt on Danny’s claims. Another inmate who knew him in prison said “he couldn’t order bloody fish-n-chips at a takeaway, let alone a hit”.
Veteran defence lawyer Marie Dhyrberg KC interviewed Danny at the time and got him to sign an affidavit in which he acknowledged having a conversation with two prison officers about the Te Hira murder. He said it involved two other people, not Appelgren. However, he did not admit to taking part in the killing.
“I found him credible enough that there was nothing I could point to that showed was inconsistent, outrageous, couldn’t be believed. So, in my view on the balance of probabilities, it was reliable enough for me to take the affidavit.”
Dhyrberg says the claims would have been “gold” in the hands of Appelgren’s lawyers at his previous trials.
Police insisted at the time that they had handed details of what they knew about Danny over to Appelgren’s lawyers, Simon Lockhart QC and Bob Hesketh, but both men denied having seen it. The Governor-General, in referring the case back to the Court of Appeal, accepted the information was not made available to Appelgren or his counsel.
“It seems to me to be a miscarriage of justice,” Dhyrbeg says, “that was such potent evidence that should have been made available and was not, and could easily have brought about a different verdict.”
Her concerns are echoed by both Malcolm and Anthony, who are unimpressed with how the police handled the information they provided.
“They were trying to make a conviction,” says Anthony. “And regardless of whether the guy did it or not, they were going to get that conviction anyway.”
“I thought it was justified for the police to take it further and because they didn’t, then I’d have to say that the police are culpable and not doing the job properly,” Malcolm believes.
RNZ asked Police to respond to these issues in a list of more than 150 questions sent to them as part of the podcast investigation. In an email, Detective Inspector Scott Beard, Auckland City CIB, wrote: “We are aware there is an ongoing Court of Appeal process which remains in the early stages at present. As this process is ongoing and has not been heard by the Court, it would be premature for Police to engage in detail at this point”. Beard promised Police would comment further “once we are in a position to do so”.
Asked if they think Appelgren was wrongfully convicted, Anthony and Malcolm are of the same mind.
“Absolutely wrongfully,” Anthony says. “It was, I believe, common knowledge within the staff there [Paremoremo] that the wrong person was got”.
Malcolm says he felt powerless to do more than he did to right the wrong, but he “felt the guy was innocent of what he had been convicted of”.
The latest episode of Nark is out now at rnz.co.nz/nark or wherever you get your podcasts. The series airs 7pm Sundays on RNZ National.
– Published by EveningReport.nz and AsiaPacificReport.nz, see: MIL OSI in partnership with Radio New Zealand