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Chapter 1: What is the significance of the Supreme Court decision regarding David Tamahere?
Well, we waited a long time for this decision, and when it finally came, it came as a bit of a shock, but maybe not a surprise. The Supreme Court has quashed David Tamahere's convictions for the murder of Heidi and Urban.
Now, this is a case which has dragged on in terms of the legal case for decades, and this decision really is in relation to the original trial, and that's what's important to understand here. Today and this episode and then in one more episode, we're going to split it into two because it's quite long.
I'm going to go through verbatim the entire decision, the decision that's been released to the media to publicly share. There are some redacted elements to it that wouldn't be released until after the Crown has decided whether they're going to retry or not. I imagine. But yeah, so let's get into this.
It's something that if you really like detail and also legal principle and you want to understand the bigger picture of how everything works. I mean, the legal system is complicated at the best of times. It's not necessarily as black and white as you think.
Listening to this and taking the time to understand everything will really help you get a better appreciation for the case and where it is today and why this decision has been made today. Like I said before, it's important to be clear.
They're not saying that he's guilty, that he's not guilty.
What they're saying is that there was a miscarriage of justice and that there
due to that miscarriage that the provisor shouldn't have been applied which means that effectively the provisor can be applied when the court is still satisfied as guilt beyond a reasonable doubt even when there's been a miscarriage so what they've said and the supreme court ruling is that there's been a miscarriage that had already been acknowledged by the court of appeal
But what they're saying is in this case, because of the new crown theory and everything else that goes with it, the body showing up in the wrong spot, all these other things, that there is enough reasonable doubt and the proviso should not have been applied in the court of appeal.
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Chapter 2: What were the circumstances leading to the original convictions of David Tamahere?
The Court of Appeal said it was satisfied beyond reasonable doubt of Mr. Tamahiti's guilt and applied the proviso. The court accordingly declined to exercise its jurisdiction under Section 4061A of the Crimes Act to quash Mr. Tamahiti's convictions. On 20 December 2024, this court granted Mr Tamahere leave to appeal from the decision of the Court of Appeal.
The approved question was whether the Court of Appeal was correct to decline to exercise its jurisdiction to quash Mr Tamahere's convictions. The court asked counsel to address the issues of principle involved in the following matters. Summary of our conclusions. As we shall explain in more detail, we have concluded that it was not right to apply the proviso in this case for two reasons.
First, because there was a fundamental error at trial, which made the trial unfair. And, second, because of the radical recasting of the Crown theory of the case, which meant that, in applying the proviso, Mr Tamahiti's convictions were upheld on a case raising issues. including questions as to credibility and reliability that had never been tested before a jury.
As to the first of these reasons, it is settled law that an appellate court cannot apply the proviso where a trial was unfair. That is because, as this court said in Lundy v. The Crown, there are some errors which are so serious that the proviso cannot save them.
The error in this case resulted from the admission of the perjured evidence of Mr Harris, which was directed to the critical issue for the jury's verdicts, was concocted to secure convictions, and, by referencing corroborative detail, provided material support for Crown identification evidence.
The perjured evidence, along with the evidence of one of the other prisoners, was also highly prejudicial. The trial judge's directions did not cure the problem. In terms of the second reason, the change in the Crown case arises in response to the discovery of Mr. Hoglund's body and the fact the evidence suggests he was killed close to where his body was found.
This has required a radically different Crown theory. That theory, as we shall discuss... entails focusing on events connected to the offending occurring at multiple locations across a different, significantly larger geographical area and over many hours. There are now also two likely crime scenes.
The new Crown theory means other evidence needs to be seen in a new light and raises questions of credibility and reliability about that evidence. Testing of the new evidence is also required. The authorities are clear that it is not generally appropriate to apply the proviso to cases which turn on an assessment of the honesty and reliability of witnesses.
That is because of the disadvantage the appellate court may have in making that assessment, on the sole basis of the transcript of the oral evidence. There are also broader problems in applying the proviso to the new Crown theory of the case.
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Chapter 3: How did the new evidence affect the Court of Appeal's 2024 judgment?
One of the photographs included Mr. Tamehiti in a bush setting, not wearing a beard. Mr. Cassidy recognized him as the man he had seen at Crosby's Clearing on 8 April 1989. It is clear that Mr. Cassidy saw these photographs after the media photographs of Mr. Tamehiti had been published.
Mr. Knopf was shown the photographs from Mr. Tamehiti's home on 15 July, but could not be sure it was the same man. The possibility of undertaking a formal identification procedure, the usual and now generally required course of action for visual identification in a case such as this, was abandoned.
The police considered any identification made would be tainted by the photographs the trampers had already seen. The two men attended the district court at Thames, where Mr. Tamahere was to appear again on the 26th of July, 1989. Both men observed Mr. Tamahere as he was escorted across the road to the rear court door.
Mr. Cassidy saw that the man he shortly afterwards identified as Mr. Tamahere was handcuffed, and Mr. Knopf said that, if not handcuffed, he certainly had a close escort. Both men then entered the court and watched the hearing. They then advised the police that the man they saw at the clearing was Mr. Tamahere.
In terms of their identification of Mr. Tamahere, the Court of Appeal in the 2024 judgment explained that Mr. Knopf recognized the man's appearance, skin coloring and features, his build, the rounding of his shoulders and his height, and the way he walked. Mr. Knopf noted the man's quite prominent eyes. He made the identification as Mr. Tamahere walked into the court building.
Mr Cassidy relied on his walk, his appearance, his colouring and his hair. He noted that Mr Tamahere had a beard, which he had not seen before. He also made the identification as Mr Tamahere entered the court building. It was not until 30 November 1989 that Mr Cassidy made the further statement, identifying Mr Tamahere as a man he had met in the bush in November or early December 1987.
He said he had told police in July 1989, before the first court appearance, about this earlier meeting. Returning to the progress of the trial, the Crown sought a pre-trial ruling under Section 344A of the Crimes Act that, among other matters, the identification evidence of the two trampers was admissible.
The High Court, in determining admissibility, was concerned about the process by which the identifications had been made, highlighting the various departures from practice.
Those departures from practice included the fact both men had seen photographs of Mr. Tamahere before identifying him and the unfortunate departure from normal procedure in terms of Mr. Tamahere's entrance into the district court.
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Chapter 4: What were the key points of the Crown's case against David Tamahere?
Similarly, with no regard for the risk of being caught by the car's owners. Evidence about Mr Hogland's watch also formed part of the evidence about the couple's possessions. A boarder at Mr Tamahiti's house, Dwayne Davenport, gave evidence that he saw Mr Tamahiti's son wearing a watch given to him by Mr Tamahiti, which the Crown said was like Mr Hogland's.
Mr. Davenport described an exchange in which Mr. Tamahere grinned and laughed when his son told Mr. Davenport the watch was a present from his father. Mr. Davenport's evidence was admitted at trial after a voir dire. There were questions about its admissibility because, when he was first interviewed by police in August 1989, he said he had no knowledge of any watch.
but that interview had jogged his memory, so that by September that same year, he had recalled events concerning the watch, although he was not clear whether it was a silver watch. By the time of the trial in November, he was positive that it was silver.
Tompkins J. concluded that the evidence was admissible, but said that it would be subject to a direction to the jury at trial about its reliability. The next part of the Crown case connected Mr. Tamahere to Ms. Parkinan. This aspect centred on the evidence of the two trampers.
As we have noted, they said, that on 8 April 1989, they saw a man, whom they later identified as Mr Tomahedi, clearing a tent site with a tomahawk at Crosby's Clearing. They spoke with the man, who was preparing to put up a hooped tent. They could state that they met the man and woman in the clearing at exactly 3.12pm, as Mr Cassidy kept a written log of the tramp.
The evidence of the trampers was that the woman was wearing a poncho and that she sat there but said nothing. Mr. Knopf said the woman was wearing makeup and fingernail polish. Mr. Cassidy described her as wearing makeup. It was known that Ms. Parkinan did not wear makeup whilst in New Zealand and no makeup was found amongst her possessions. They also described Ms Parkinan as wearing boots.
The Crown said at trial she did not own boots, that this aspect of the Tramper's description was an anomaly. Neither of the two Trampers described the man as having a moustache, although other Crown witnesses who saw Mr Tamahere around this time said he had a bushy or droopy moustache.
Mr Cassidy said that when he had met the man in late 1987, he was wearing similar clothes and boots to those of the man on 8th April. The Trampers' evidence also tended to link items found at Mr Tomahiti's house with items they saw in the clearing, namely the hooped tent, the tomahawk and the poncho. Their account was that these items looked like the ones they saw on 8th April.
The final part of the Crown case comprised the evidence of the three prisoners, including Mr Harris. They gave accounts of Mr Tamahere speaking to them in custody about how he had sexually assaulted and killed the couple. The admissions of guilt the prisoners described were not consistent with each other. We discuss their evidence fully shortly. The Defence
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Chapter 5: What were the main arguments presented by the defense during the trial?
The jury also heard from two men, Mr Verne MacDonald and Mr James Gray, who had travelled to the Coromandel District on Saturday 8th April, about seeing a white Subaru station wagon with a bull bar parked near the Carita Hill lookout. around 20 kilometres south of Coromandel Town on the western side of the peninsula, and a blonde woman with the car.
Verdicts We will come back to some of the details of the opening and closing addresses and of the summing up. The jury deliberated for some two days before returning guilty verdicts. The First Conviction Appeal The Court of Appeal in the First Conviction Appeal had before it new evidence relating to the discovery of Mr Hogland's remains, his watch, and clothing.
In terms of this evidence, the key points to note are as follows. First, as we have said, the evidence suggested Mr Hogland likely died at or very near the place where his remains and his watch were found. Second, the remains were only partially covered by vegetation, so did not appear to have been buried.
Third, as to what we now know about Mr Hoglin's injuries, the Court of Appeal described the expert evidence as indicating that Urban Hoglin had suffered stab wounds in the neck and shoulder region with a possible attempt at decapitation. There was no sign of a skull fracture or broken neck.
In dismissing the appeal, the Court of Appeal in 1992 was satisfied the new evidence as to the discovery of Mr Hogland's remains along with his watch, considered with the evidence at trial, was not such as to have reasonably led the jury to return a different verdict. That was essentially because the court considered the evidence crucial to the whole case.
Namely, the sighting of the trampers, of the man and the woman at Crosby's clearing was reliable. The court said this. The trampers said the man looked like Mr. Tamahere. He wore a belt with a pouch and was using an axe similar to those found at Mr. Tamahere's house.
He was putting up a tent of an unusual design and of interest to them, which both regarded as similar to the tent found at his house. The girl was remembered as similar to a photograph of Ms. Barkanan, with blonde hair and fine features, and she was wearing an unusual poncho, similar again to one found at Mr. Tamahere's house.
The discovery of such a garment and tent at his house would be a most extraordinary coincidence. In conjunction with the other matters just described, it makes the odds against that couple being other than Mr. Tamahere and Ms. Parkinan so high as to put that possibility beyond rational consideration.
Conversely, as the Crown pointed out, despite the massive publicity and interest generated by the disappearance of the couple and the extensive searches, The Governor-General's Reference As indicated above, Section 4061 of the Crimes Act preserved the availability of the prerogative of mercy.
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