Few cases are sent back to court under the royal prerogative of mercy, and the granting of pardons is even rarer.
The royal prerogative of mercy is designed as a safety net in potential miscarriages of justice for people who’ve been convicted of an offence but have exhausted the appeal process. It’s exercised by the Governor-General on the advice of the Government. It can result in a pardon – although this is very rare – or referral of the case back to a court for further consideration. About 10 applications are lodged each year and only about 9% succeed in a referral back to court. Of about 160 applications lodged between 1995 and 2017, the prerogative of mercy was exercised 15 times.
NOTABLE CASES INCLUDE:
1979: Prime Minister Robert Muldoon pardons Arthur Allan Thomas and awards him $950,000 compensation for the nine years he spent in jail after the 1970 murders of Jeannette and Harvey Crewe in Pukekawa, south of Auckland. The pardon follows an application for the prerogative of mercy, and a report by Robert Adams-Smith QC, which finds “an injustice may have been done”. 1996: David Dougherty’s conviction for raping his 11-year-old neighbour in West Auckland in 1992 is referred back to the Court of Appeal, which orders a retrial at which Dougherty is acquitted of rape. Another man, Nicholas Reekie, is later identified by DNA as the attacker, and Dougherty receives an apology from the Government and $868,000 compensation.
1998: The 1993 Christchurch Civic Creche sex-abuse convictions against Peter Ellis are referred back to the Court of Appeal, but the following year, the court dismisses the appeal. Two further applications are unsuccessful.
2000: The Governor-General refers some questions in the David Bain case to the Court of Appeal after supporter
Joe Karam’s prerogative of mercy application in 1998. The court ultimately dismisses the appeal in 2003. The Privy Council later orders a retrial, and in 2009, Bain is acquitted on all five counts of murdering his family in Dunedin in 1994.
2002: that the expenses-related fraud convictions of former Whanganui police superintendent Alec Waugh be referred to the High Court, where the convictions are quashed. Waugh later wins a $1 million payout from the Employment Court.
2004: Rex Haig’s conviction for the murder of Mark Roderique, in 1995, is referred back to the Court of Appeal on his second prerogative of mercy application. The court quashes the conviction in 2006, but a QC’s report recommends against compensation. Haig dies in 2017 before a second bid for compensation is resolved. 2009: The Ministry of Justice recommends the Court of Appeal reconsider the case of Tyson Redman, who, in 2007 aged 17, was convicted of wounding and injuring during a group assault at a birthday party in Auckland. The court overturns Redman’s convictions. In 2018, Justice Minister Andrew Little apologises to Redman and pays $550,000 compensation for his 30 months in prison. 2011: Lawyers for Teina Pora, jailed for the murder of Susan Burdett in South Auckland in 1992, file a prerogative of mercy application, but before it’s decided, the Privy Council grants an appeal. In 2015, the council recommends against a retrial. Pora later receives $3.5 million in compensation. 2017: Brian McDonald, a convicted murderer and supporter of convicted Sounds killer Scott Watson, files a new application for the prerogative of mercy after an earlier application is declined in 2013 on the advice of Justice Minister Judith Collins. The Privy Council rejected Watson’s application for appeal in 2003, as did the Court of Appeal in 2000.
2018: Lawyer Murray Gibson applies for the prerogative of mercy or a pardon for the murder convictions of David Tamihere, after a jailhouse snitch, who testified against him in his 1990 trial for killing Swedish tourists Urban Höglin and Heidi Paakkonen, is convicted of perjury in 2017.
2002, and jailed for life the same year. Advances in DNA testing technology had linked him with a genetic profile developed from semen and hairs found on Cormack’s body. Police revealed in August 2001 that the profile exonerated Montaperto. But Montaperto says that, in some ways, he’s been punished even more than Mikus. “He had two or three weeks of publicity; I had 14 years of it. He never got the hounding.”
Police said nearly 1000 men were nominated as possible suspects during their inquiry, and about 20 weren’t able to be cleared until the profile was developed in 2001. Although his name was not widely known to the public – outside Hawke’s Bay, at least – most journalists at the time knew police believed Montaperto was their man but didn’t have the evidence to prove it.
In 1988, when Montaperto was in custody awaiting trial on the kidnapping charges, police told the Hawke’s Bay Herald-Tribune that “a suspect in the eight-month hunt for the killer of … Teresa Cormack is already behind bars”, and said they hoped an arrest for the murder was “just around the corner”.
Montaperto’s identity was so well known locally that, in 1993, he was severely beaten with a spade and a car jack by a Napier man, who told him it was punishment for “Teresa Cormack and Kirsa Jensen”. (Jensen disappeared in 1983 when riding her horse. Neither her killer nor her body has been found.) Montaperto had his hands and legs bound and mouth taped during the sustained attack, which left him hospitalised with brain damage, a fractured skull, broken nose, cheek and jawbones and a broken leg.
About the same time, a senior detective on the case told a women’s magazine that a “39-year-old man who is well known in the Hawke’s Bay district” was about to be arrested and charged with the Cormack murder. “It’s common knowledge around town who the killer is, and recently he was badly assaulted,” the detective said. “I’ve spoken to him several times about the case and we are almost close enough to put him in the dock.” The story said he expected enhanced DNA tests would directly link him to the crime. “It has been so frustrating because all along we have had an offender but not a result – yet.”
Montaperto says he had no knowledge of the alleged Flaxmere abduction and indecent assault in June 1986, until one year later, when he and his then partner, Linda, were questioned at the Napier police station about his whereabouts in relation to the Cormack murder. “They showed my girlfriend a shock photo … someone covered in blood … more or less saying this is the handiwork of your boyfriend.”
Why was Montaperto in the frame for the Cormack investigators? He had accrued about 20 convictions and was, as is often said in these sorts of cases, no angel. A search warrant for his house and vehicle said he was “known to police for committing offences of an indecent nature with young girls”. He says although he had convictions for indecent exposure, they did not involve children and he put the incidents down to youthful skylarking and to being “an exhibitionist”. His lawyer at the time, Russell Fairbrother, backed him, telling the Listener that Montaperto had no history of child-sex offending.
Montaperto did, however, live about 300m from Cormack’s home and on the route she took to school. A 1963 Holden Premier, similar to a car he drove, was identified as the vehicle involved in the Flaxmere kidnapping. Although Montaperto was a possible suspect because of his car, police noted he didn’t have tattoos, as reported by witnesses, and neither could those witnesses identify him from photographs.
After the Cormack murder, police revived their interest in the unsolved Flaxmere case. Montaperto says police asked him to go to Fairbrother’s office on December 29, 1987, to give DNA samples, but he refused. He says he didn’t trust what police would do with them. In the meantime, the Flaxmere witnesses were re-interviewed and Montaperto was arrested on the morning of New Year’s Eve.
“The whole police force came to my house that morning. Turned the house upside down,” he says. “They handcuffed me and said you’re under arrest for kidnapping. I thought they were arresting me for the kidnap of Teresa Cormack.”
He says when he arrived at the Napier police station, the head of the Cormack inquiry, Detective Sergeant Brian Schaab told him, “Plead guilty to killing Teresa Cormack and we’ll drop the [Flaxmere] charges.” DNA samples were then taken.
Montaperto spent 10 months in solitary confinement before his trial, a period he describes as “torture”.
“What kept me going was that one day the truth would be known that I wasn’t the offender. I felt good in myself because I knew I wasn’t guilty of that [Cormack] or the kidnapping.”
It wasn’t his first experience of prison – he says he’d been in jail before for car conversion. While he was on remand at Manawatu Prison, he says Schaab, who died last year, arrived with another detective and told him his DNA had been positively matched with samples from Cormack’s body. “They said after they had their tea, they were taking me back to the police station and would charge me with the murder.”
Montaperto says he was so incensed that, on the way to the bathroom, he picked up a gas cylinder that welders had left in a corridor, and threatened to ignite it with a disposable lighter when he returned to the room. “I thought, ‘I’m going to go down for this.’ I had to make a stand. I threatened to blow them up.” He acknowledged he would have possibly killed himself as well, “but I was willing to go to that extent”. A passing warden wrested the cylinder from him and he says he wasn’t charged over the incident.
“You have to live a life of Rambo when you have something like that on you; you have to be on the lookout.”
After he was jailed on the Flaxmere charges, Montaperto says some inmates stuck by him. “They knew I was innocent. They said, ‘That’s not your cup of tea, Monty.’” In 1989, he was refused leave to appeal
1. David Bain with supporters, including Joe Karam, left. 2. Arthur Thomas. 3. Peter Ellis. 4. Rex Haig. 5. Teina Pora. 6. David Dougherty. 1
Justice Minister PhilGoff recommends
From top: Montaperto’s lawyerRon Mansfield; independent lawyer Steve Bonnar; Justice Ministry adviser Rodney Hansen; Justice Minister Andrew Little.