Supreme Court judges have grilled the Crown case in double convicted murderer David Tamihere’s appeal in the High Court at Auckland.
Tamihere was convicted in December 1990 of murdering Swedish tourists Urban Höglin and Heidi Paakkonen.
His lawyers are appealing an earlier Court of Appeal ruling that found a miscarriage of justice but upheld his convictions.
Crown lawyers began there submissions today, with lawyer Fergus Sinclair giving the panel of judges background about Tamihere’s movements through the bush around the Coromandel Peninsula, and the discovery of Höglin’s body.
The Crown case at the original trial was that Tamihere was living in the bush when he murdered the couple near Crosbies Clearing north of Thames.
“We know Mr Tamihere’s last two trips involved spending time in the Wentworth Valley, and on trip one, spending days on that Eastern side,” Sinclair said.
“Multiple witnesses established that.”
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Evidence had been presented at trial that two trampers identified Tamihere as a man they encountered at Crosbies Clearing with a young woman.
Sinclair said Tamihere partly acknowledged and partly fictionalised trips he had taken around the area at trial, to conceal that he had been near to where Höglin’s body was found.
“Trip one, he said, North from Thames, has spent a long time around the Coromandel area, but he didn’t,” he said.
“He went South, then East into the Wentworth, back the same way after more than a week.”
The second trip, Sinclair said, Tamihere claimed to have again gone North from Thames to the 309 Rd, then down the main road almost to Thames, but swerved up Tararu Creek Road to where the couple’s car was to steal it, but this too was wrong, instead claiming Tamihere had gone South and back to the Wentworth Valley.
“It’s not possible to forget that your last two journeys were to an entirely different part of the region,” Sinclair said.
“So much time spent in a completely different place, in the opposite direction.”
Sinclair referenced the conclusion reached by the Court of Appeal.
“Mr Tamihere lied to conceal his presence in the Wentworth Valley, and did so because he knew police might find evidence there,” he said.
“The only evidence is the body, the only reasonable conclusion is that Mr Tamihere knew about the body.”
Sinclair faced scrutiny from the judges regarding whether claims Tamihere had lied had been put to him at trial.
“It’s a fundamental issue with the Crown’s case,” Chief Justice dame Helen Winkelmann said.
“You’re taking us and saying ‘Mr Tamihere lied’. Statements are made contextually, lies, as juries are instructed, must be assessed contextually, if it’s said to be a lie it must be put to the witness that it’s a lie, it must be part of the case that it’s a lie…
“What are we to make of the fact that these things that you are now saying are lies, were to a greater or lesser extent not pursued at trial?” she asked.
Five Supreme Court judges hearing arguments on whether the Court of Appeal in an earlier ruling was right to not quash his convictions. (Source: 1News)
Sinclair said this was the fresh evidence exercise.
“The issue is, does it disclose a miscarriage, and it is the Crown responding to a defence theory,” he said.
“The body is found, we now see more things, does it give rise to a miscarriage that is the issue.”
More scrutiny was put on the Crown’s case by Justice Sir Joe Williams, who said their case came down to whether or not Tamihere had lied.
“His lie, you say, is the thing that binds all of this together, Crown stands or falls on that lie,” he said.
“Without it you lose.”
Earlier today, Tamihere’s lawyer James Carruthers asked the question if his trial would have turned out differently if a fundamental error had not occurred.
He quoted a case which said questions needed to be asked on what course a trial would have taken, if errors had not been made.
“It’s interesting to ask here what the course of the trial might have been like had it not started off in completely the wrong direction,” Carruthers said.
“And as we can see from the Crown’s amended case, it would have taken on an entirely different complexion.”
Part of the Crown evidence in the original 1990 trial was false, coming from a prison informant later convicted of perjury.
Crown lawyer Rebecca Thomson discussed the importance of the evidence in the trial.
“This was one of the very rare murder trials at which there was no body available, no narrative about how, and where, and why these victims had been killed,” she said.
“The Crown’s case is entirely circumstantial leading towards the only possible explanation being Mr Tamihere’s guilt.
“That the Crown put some weight on the fact that Mr Tamihere had confessed himself to that crime, even if to witnesses who today we would perhaps not put so much stock in, is simply the fair trial process at work.”
That evidence was admissible and the Crown relied upon it, Thomson said.
“The place that it had at the trial is what this court must focus on when looking at the unfairness question.”
Thomson said they accepted that it could have made a difference to the trial, but said whether it reached the level of being unfair was a higher threshold.
Tamihere served more than 20 years of a life sentence in prison before being released on parole in 2010.
He has always denied even meeting the pair and there have been lingering questions around the convictions.
In 2020 the then Governor General, on advice from former Justice Minister Andrew Little, granted Tamihere a rare Royal Prerogative of Mercy.
The case was referred back to the Court of Appeal to rule on whether there may have been a miscarriage of justice.
That court, in July last year, found there was – but upheld Tamihere’s murder convictions because there was evidence beyond reasonable doubt he murdered the tourists.
This, in turn, was appealed to the Supreme Court which is hearing the case now.
The hearing continues tomorrow.
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