In the frame
For 14 years, Wayne Montaperto was the prime suspect for the 1987 rape and murder of six-year-old Teresa Cormack. He served time for another crime he says he didn’t commit. Now, he’s won a rare intervention in the battle to clear his name.
For 14 years, Wayne Montaperto was the prime suspect for the 1987 rape and murder of six-year-old Teresa Cormack. He served time for another crime he says he didn’t commit. Now, he’s won a rare intervention in the battle to clear his name. by DONNA CHISHOLM ● photograph by MIKE ROOKE
When Wayne Gary Montaperto was jailed for three years for child kidnapping and indecency, there were plenty of reasons for unease about the verdicts of the jury that found him guilty. Key among them was the uncertainty and inconsistency of witnesses who testified he was the man who allegedly abducted four Flaxmere children, drove them to a river, plied them with alcohol and performed an indecent act on one. Then there was the potential alibi evidence that was never called.
But the elephant in the jury room at the High Court at Wellington during that trial, in August 1988, was child murder victim Teresa Cormack. The hearing had been shifted from Napier because the word was already out in Hawke’s Bay: police were confident that Montaperto was the man who raped and killed her.
The jury was never meant to know this, but they did. Now, 30 years later, a stunning admission made 10 years ago by the jury’s foreman – that he told the other jurors what he’d heard about Montaperto and Cormack – has led to a successful application to the Governor-General to exercise the royal prerogative of mercy, a last-ditch remedy for people who’ve exhausted other avenues of appeal against a conviction. Dame Patsy Reddy has referred the case back to the Court of Appeal because of the potential for a miscarriage of justice, after Justice Minister Andrew Little advised her there was “apparently credible evidence” that prejudicial information about Montaperto was passed to the jurors.
It’s a big win for Montaperto, 64, a Napier fitter and turner, and his lawyer, Ron Mansfield – less than 10% of such applications are referred back to court – but it has been a long time coming. The application was filed in 2014, six years after the jury foreman came forward in response to a newspaper article about Montaperto’s case. The application said the investigation took “considerable time” because of the age of the file and Montaperto’s inability to pay.
In an email to Mansfield in June 2008, the juror wrote: “I may have some information with this appeal that may or may not be useful … The reason for my contacting you is to ensure that all facts and influences of the case are put forward.”
There are strict rules surrounding communicating with jurors – it’s considered contempt of court to approach them about their deliberations – so Mansfield referred the foreman to an independent lawyer, Steve Bonnar QC, who interviewed him and later swore an affidavit that formed part of the application. After agreeing to do the same, the juror later changed his mind. It’s possible the juror himself could have been considered in contempt of court for ignoring the judge’s warnings not to consider anything he’d heard about the case outside the courtroom.
Bonnar’s affidavit about their discussion, sworn in 2012, said the foreman told him a man he used to work with had mentioned during the trial that Montaperto was a prime suspect in the Teresa Cormack murder. “That man had two brothers who were policemen in Hawke’s Bay,” the affidavit says.
The juror did not know the policemen, but admitted that he passed on the information to the other jurors. The juror told Bonnar that “both he and the jury consid- ered the information to be significant”, and that he thought the jury was influenced by it and used it against Montaperto – even though it was not before the court.
Montaperto believes the information was passed to the juror deliberately, and was part of an ongoing police campaign of harassment and intimidation against him. Mansfield’s application said the evidence appeared to show that police intentionally interfered with the trial by giving information to someone they knew would pass it on to jurors. “This would be consistent with the police’s aggressive pursuit of Mr Montaperto as a suspect in the Teresa Cormack inquiry.” He told the Listener that, though he couldn’t prove the information was deliberately planted by the police, “my view is that it seems just too good to be coincidental. It seemed as if [the informant] knew what they were doing.”
A Ministry of Justice report on the application rejected that, saying the juror did not know the informant’s policemen brothers, even though the informant knew he was on the jury. “We do not consider the evidence provided to us supports the submission that the police deliberately interfered with the jury.”
The fact the crucial evidence comes from a juror raises some thorny issues for the Court of Appeal. The Evidence Act generally prohibits testimony being given about jury deliberations, and the fact the juror declined to swear an affidavit himself also means the only evidence of what happened is from Bonnar, which technically is hearsay.
The Justice Ministry sought advice on these matters from Rodney Hansen QC, a former High Court judge. He said that although evidence of jury deliberations was inadmissible, there were exceptions. “This is something that is extrinsic to the jury’s deliberations and would therefore undoubtedly be admissible.” He said although Bonnar’s affidavit was hearsay, the circumstances “provide reasonable assurance that the statement is reliable”. The affidavit would be sufficient for an application to the court for leave to bring fresh evidence in the case.
The ministry’s report, prepared by chief legal counsel Jeff Orr, said that despite the judge in Montaperto’s trial assessing the Crown case as strong, “it is clear there were deficiencies in the identification evidence, which meant that the Crown case was less than overwhelming. In our view, there is a very strong possibility that the jury would have been influenced by the highly prejudicial information that Mr Montaperto was a prime suspect in another serious child abduction and murder case.”
“In our view, there is a very strong possibility that the [Flaxmere] jury would have been influenced by the highly prejudicial information.”
HOUNDED BY ASSOCIATION
The mystery of who abducted, raped and killed Napier six-year-old Teresa Cormack, whose body was found in a shallow grave on Whirinaki Bluff beach eight days after she disappeared on the way to school on June 19, 1987, was not solved until Jules Mikus was arrested in February