Last-chance sa­loon

Few cases are sent back to court un­der the royal pre­rog­a­tive of mercy, and the grant­ing of par­dons is even rarer.

New Zealand Listener - - 30-YEAR FIGHT FOR JUSTICE -

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.”

PO­LICE QUES­TION­ING

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.”

DIS­TRICT PARIAHS

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

5

3

2

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From top: Mon­ta­perto’s lawyerRon Mansfield; in­de­pen­dent lawyer Steve Bon­nar; Jus­tice Min­istry ad­viser Rod­ney Hansen; Jus­tice Min­is­ter An­drew Lit­tle.

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