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THE QUEEN v TEINA PORA [1999] NZCA 231 (18 October 1999)

Introduction

[1] In June 1994 the appellant was found guilty of being a party to the murder and rape of Susan Burdett, and of the aggravated burglary of her Papatoetoe home.In May 1996 Malcolm Rewa was charged with sexual crimes, mainly sexual violations by rape, against 27 different complainants.Susan Burdett was one of them.He was also charged with her murder.Semen recovered from her body was established by DNA profiling to have come from Rewa.His crimes were distinctive for the way in which he selected, subdued, and systematically abused the victims.Rewa acted alone.This application for leave to appeal is based upon the single ground that had the further evidence of the DNA match to Rewa and the distinctive characteristics of his offending been before the jury at the appellant's trial in 1994, it may not have convicted him on the basis of his oral confessions.

[2] The principles upon which this Court acts on an application to admit fresh evidence are both settled and familiar.For present purposes it is sufficient to refer to R v Zachan 11 August 1995 CA304/94, in which Hardie Boys J in delivering the judgment of the Court summarised the position thus:

The Court has jurisdiction to allow an appeal on the ground of the discovery of fresh evidence by virtue of s385(1) of the Crimes Act 1961.This provides that an appeal against conviction is to be allowed if the Court is of the opinion that on any ground there has been a miscarriage of justice.The Court will normally require that the evidence be fresh in the sense that it was not available at the trial;and that it be credible and cogent in the sense that if given along with the other evidence in the case, the jury might reasonably have been led to return a different verdict.The overriding test however is the interests of justice.

Here no issue was raised concerning the freshness and cogency of the new evidence.It was obtained by the Crown and used to prosecute Rewa to conviction for the rape of Susan Burdett and others.Given that such evidence was formally adduced at Rewa's trial, it was initially placed before us without proper application for its admission.We shall address its reception pursuant to s389(a) of the Crimes Act and consider the scope and nature of that evidence shortly.

[3]The appellant was born in June 1975.He was therefore 16 years of age at the date of the murder and rape on 23 March 1992.His formal education was limited and he could not read or write to any extent.Ms Burdett spent the evening of Monday 23 March playing ten pin bowls.An immediate neighbour heard her arrive home by car at about 11.40 pm.A short time later this witness heard a number of dull thuds, consistent with blows being struck.She was concerned and left her bed to listen at a window adjacent to Ms Burdett's unit. The noise had stopped so the witness returned to bed.

[4]Ms Burdett's body was not discovered until two days later, Wednesday 25 March.She had died on the double bed in her bedroom from several blows struck to the head with a blunt instrument.The blows caused grievous head injuries. Death would have resulted during or soon after the attack.Despite the nature of the injuries there was a comparative absence of blood staining in the bedroom.This suggested that the blows had been struck while the complainant's head was covered by bed clothing.Her body was naked, lying across and with the lower part off the side of the bed.The police conducted a meticulous examination of the entire scene.No fingerprints from an intruder, or intruders, were found.Nor was there an apparent point of entry into the house, although it was established Ms Burdett was in the habit of leaving her bedroom window unlocked and ajar.A softball bat she kept in her bedroom lay on the bedroom floor.Forensic testing of it did not establish it was the murder weapon, but nor could such conclusion be excluded since a duvet appeared to have covered the deceased's head at the crucial time.

[5]On 6 April 1992 the police recovered another softball bat which had been discarded in a sewer pipe near the Manukau velodrome.In this they were assisted by the appellant's aunt.The appellant had indicated the presence of the bat to his aunt and uncle and, at the same time, made remarks relevant to its possible use against Ms Burdett.As a result he was interviewed on two occasions.He denied involvement in the murder and rape and co-operated with the police by supplying a blood sample.This resulted in his exclusion as the person responsible for semen recovered from Ms Burdett's body.

[6]Following discovery of the body there was intense media interest in the case.Interest continued throughout 1992 and into 1993, including the screening of elements of the case in a national television programme.On 18 March 1993 the appellant was arrested and spoken to by a police officer at the Otahuhu Police Station with reference to offending involving motor vehicles. Towards the end of the process the appellant mentioned the Susan Burdett case. As a result he was extensively interviewed that day, the following day, and two days later.Such interviews ran to several hours, were in the most part recorded on video, and included footage of a visit to the sports centre where the complainant had played ten pin bowls and to her home unit at Papatoetoe. On 23 March 1993, a year to the day after Ms Burdett's death, the appellant was charged with her murder and rape, and the aggravated burglary.

[7]In February of the following year there was a five day hearing of an application pursuant to s344A of the Crimes Act to determine the admissibility of the appellant's confessional statements.A ruling favourable to the Crown resulted.On 3 June 1994 the Court of Appeal delivered a reserved decision in which it upheld that ruling.Four days later the trial of the appellant proceeded in the Auckland High Court.The focus of the case was whether the oral confessions were true and reliable.The defence was that the appellant constructed a false confession based, to the extent it included detail of any consequence, upon information which had been published by the media.The appellant gave evidence in his own defence.He denied all involvement in the relevant events, but was bereft of an explanation concerning why he had confessed to involvement in the crimes.

The Confessions

[8]While being spoken to at the Otahuhu Police Station on Thursday 18 March 1993 the appellant volunteered that he knew who was responsible for Ms Burdett's death.He said that he had driven two offenders to the address in a stolen car and waited for them to return.The appellant supplied details of two makes of vehicle which he said had been converted from named places for the purpose.A check of police records indicated that no such vehicles had been reported stolen.When confronted with this the appellant said a vehicle to which he had legitimate access had been used and at the same time altered his account to say that he had entered Ms Burdett's house, witnessed her being raped and murdered, and that he stole certain items of property.

[9]In light of these admissions the interviewer arranged for the officer in charge of the Burdett inquiry, Detective Inspector Rutherford, to come to the police station for the purpose of a full suspect interview of the appellant. This interview, recorded on video, occupied over four hours on the afternoon of 18 March.That evening the appellant accompanied police officers to the area of the bowling alley which Ms Burdett had attended on the relevant night.From there the party drove to Ms Burdett's home.The appellant pointed out a window to her bedroom which he said was open on 23 March 1992 and other features about the house relevant to the fatal events.This process was also recorded on what was referred at the appellant's trial as the reconstruction video.Finally on that day there was a further 20 minute interview following the appellant's return to the police station.This interview, also recorded on video, concerned aspects of the reconstruction which had just taken place at the house and details of the rape of Ms Burdett by the appellant's co-offenders.

[10]The following morning there was a further brief recorded interview of eight minutes duration.This concerned remarks which the appellant had made to his uncle some days earlier about wanting to clear up matters with the police. The interviewer was concerned to establish that such conversation had reference to the murder and rape of Ms Burdett, as well as car offences.After the interview the appellant made a delayed court appearance in relation to his arrest the previous morning.He was remanded in police custody.The next day the appellant telephoned his aunt and uncle.With police assistance they were taken to the Auckland Central Police Station and spoke at some length with him.

[11]On Sunday 21 March a further lengthy interview was conducted at the Auckland Central Police Station.It occupied in excess of five hours and was recorded on video.During the latter stages of the interview the same aunt and uncle were present.During the day they also spent time with the appellant and encouraged him to confess his guilt.On the following Tuesday, 23 March, arrangements were made for a solicitor to be present at the Otahuhu Police Station to represent the appellant.In his presence the appellant was formally charged with Ms Burdett's murder, sexual violation by rape, and the aggravated burglary of her home.

[12]The gist of the story which finally emerged from this interview process was to the following effect.At the relevant time in 1992 the appellant mixed with members and associates of a South Auckland gang.A gang member strayed onto Ms Burdett's property and was reprimanded for doing so.Approximately six days prior to her death members of the gang met and, in the presence of the appellant, a decision was taken that out of revenge Ms Burdett would be raped and killed with a softball bat.To that end, on Sunday night 22 March 1992, the appellant went to Ms Burdett's property to establish its layout and viewed her watching television through a window.The next evening the appellant with two others, whom he referred to by nicknames, went to the bowling alley, saw Ms Burdett there, and followed her to her Papatoetoe home.He said that he climbed into the house through the open bedroom window.Ms Burdett was in the shower.He let his two co-offenders into the unit through the front door. Finally he was present while the other two raped her and the fatal blows were struck with a softball bat taken to the scene.The appellant fully implicated himself by admissions that he physically restrained Ms Burdett while she was raped and encouraged her death by remarks to the effect that she should be killed.

[13]Significantly, although the appellant referred throughout to his co-offenders by their slang names, when questioned he supplied sufficient details to enable their identification.The two gave blood samples to the police.DNA profiling indicated that neither man was responsible for the semen recovered from Ms Burdett's body.Accordingly the Crown case against the appellant was presented on the basis that his confession was reliable, albeit that some unidentified third person must also have been involved.In short, the Crown argued, the appellant was undoubtedly implicated in the fatal events but he had not necessarily been truthful concerning the identity of others involved.

[14]Extensive submissions were made concerning the reliability of the appellant's confession.The Crown argued that certain details of the confession were of such kind that the appellant must have been involved in the crime in order to be privy to them.Counsel for the appellant countered that not only was the confession deficient with reference to compelling detail, but that such detail as it did contain was within the public domain as a result of the intense media interest in the case over an extended period.We have considered these arguments.In view of the overall conclusion we have reached it would be undesirable for us to record our views on the competing contentions.It is sufficient to say that in our view there is no one feature, or features, of the confession which conclusively establish its authenticity. The position remains as it was at the trial in 1994, that the truthfulness and reliability of the confession was very much a major issue for determination by the jury.With that in mind we turn to the new evidence.

The Rewa Evidence

[15]In about mid 1995 the police first established, with the assistance of DNA profiling, a link between Ms Burdett's case and several other cases of sexual violation by rape where an identical DNA profile had been obtained.In another 19 cases, where DNA evidence was not available, there was nevertheless significant evidence to suggest that the same serial rapist was responsible for the attack.In the result in May 1996 Malcolm Rewa was arrested and charged with multiple offending.The indictment presented at his trial charged 31 offences of sexual violation by rape, five of assault with intent to violate, three of attempted sexual violation, three of aggravated wounding, two of abduction and one count ofmurder.The offending spanned from December 1987 to May 1996 and related to 27 separate complainants.With two exceptions the attacks occurred in the greater Auckland area.Rewa's trial was heard between March and May 1998.On arraignment he entered pleas of guilty in relation to the sexual violation by rape, and other crimes, relevant to six ofthe complainants.In each of these cases a DNA profile implicated Rewa.In two further cases, including that of Ms Burdett, DNA evidence was available.We shall refer to Rewa's defence concerning Ms Burdett shortly.In the case of the further complainant where a DNA result was available, the quantity of recovered semen available for analysis was minute.It seems that this circumstance prompted the denial, despite the evidence of a DNA profile.

[16]Where scientific evidence was not available to prove Rewa's involvement, the Crown relied upon compelling evidence of his modus operandi.A number of quite striking features were common to most examples of his offending.All but three of the complainants were attacked in their homes at night.Invariably they were alone, save that in four instances young children were asleep in the house.Immediately following the initial confrontation the head or upper body was covered so as to obscure the complainant's vision.With reference to the acts of sexual violation, there were certain signature features.Frequently the hands and feet of the victims were tied.More often than not the complainants were positioned on a bed with their legs and the lower part of their body off the edge or end of the bed.Invariably the victim's clothing was removed from at least the waist down.In 18 cases the attacker exhibited at least a degree of erectile dysfunction during the course of the violation. After the attack it was almost the invariable practice for there to be a search of the house and cash or articles stolen.There were other patterns to the offending to which we need not refer.Importantly, Rewa acted alone.In no case was there clear evidence to suggest the existence of a co-offender.At the conclusion of his trial Rewa was found guilty of offending relevant to all complainants, save for Ms Burdett.In relation to her murder and rape the jury was unable to agree.

[17]At a retrial in December 1998 Rewa was convicted of the rape of Ms Burdett, but again the jury was unable to agree on the murder count.The jury was of course aware of the fact that the appellant stood convicted as a party to both her murder and rape.Rewa's defence was that he knew Ms Burdett and enjoyed a sexual relationship with her.He claimed that a consensual act of intercourse occurred between them on the evening of 23 March 1992, but at his address.He said he had no knowledge of, or involvement in, her death.The jury plainly rejected this account and concluded Rewa raped Ms Burdett in her bedroom at about the time of her death.The source of their disagreement concerning the murder count must remain a matter for speculation.In the circumstances the Crown did not seek a third trial.

[18]Arising from the Rewa trials considerable material was placed before us in relation to the present appeal.Counsel proceeded on the assumption that fresh evidence would be received without formal application to that end.We consider counsel's approach was misconceived.It resulted in the loose production of a volume of material on both sides.In general terms the further evidence fell into three areas : material relevant to Rewa's offending in particular his modus operandi, material suggestive of an association between Rewa and the appellant, and affidavit evidence of post-conviction contacts with the appellant.During the course of argument we required counsel to file a joint memorandum seeking an order pursuant to s389(a) of the Crimes Act for the production of those documents from the Rewa trials necessary for a proper consideration of the present matter.In terms of that section the Court has supplemental powers where it thinks it necessary or expedient in the interests of justice to:

(a)Order the production of any document, exhibit, or other thing connected with the proceedings the production of which appears to the Court to be necessary for the determination of the case.

[19]We considered that in the present instance, where the further evidence was a matter of public record arising from other criminal proceedings, it was appropriate to receive it by order of this Court and without the need for affidavits, as is the normal course.An order is therefore made for the production of the following items from the Rewa trials : the indictments from the original trial and the retrial, the crime chart (Exhibit 223a) and the associated evidence of Detective Sergeant Henwood from the first trial, the evidence of Ms S A Harbison from the retrial, the evidence of Detective Inspector Rutherford from the first trial and the retrial, the evidence of Crown witnesses Godinet and the witnesses identified as A, B and C from the retrial.Helpfully senior Crown counsel, who prosecuted at the Rewa trials, made available extracts from his openings, to confirm how the Crown case was put given the earlier conviction of the appellant.An order covering receipt of this material is not necessary.

[20]We decline to receive a series of affidavits from police officers and the appellant's uncle, filed by the Crown.These concerned contacts with the appellant after his conviction.Quite strenuous attempts were made to have him identify his co-offenders.A substantial reward was offered to him.His relatives were involved in the process.The appellant named initially one person, and then two different people.All three were located but excluded by DNA tests.We understood the affidavits to be intended to demonstrate that the appellant had not post trial recanted the confession upon which his convictions were based.Significantly none of this affidavit evidence concerned contacts with the appellant after Rewa was identified as responsible for the semen recovered from Ms Burdett's body.In any event no basis was advanced for the reception of evidence of this kind.We have not therefore taken account of it.

[21]For completeness we record the nature of the additional evidence, covered by the above order.The indictments do not require elaboration.The crime chart and the evidence of Detective Sergeant Henwood constitute a summary of the case against Rewa with reference to his pattern and method of offending. We have already referred to aspects of this evidence.Ms Harbison is a forensic scientist who gave evidence at the Rewa trials concerning the match between a blood sample provided by the accused and the semen recovered from Ms Burdett.The evidence from Detective Inspector Rutherford covered what the Rewa juries were told of the appellant's confession with reference to Ms Burdett.

[22]The evidence of Ms Godinet, given at the first trial but on account of her death read to the jury at the retrial, and the evidence of the secret witnesses A, B and C from the retrial was advanced by the Crown as the basis for a submission that the appellant and Rewa were known to one another and could, therefore, have acted in concert.We have considered this material.It is sufficient to say that it provides some basis for a consideration of that issue by a jury.On the other hand it is not evidence of such moment as may be confidently acted upon by this Court in the present context.

Conclusion

[23]We return to the sole issue raised by the application for leave to appeal.That is whether the jury at the appellant's trial might reasonably have been led to return a different verdict had the further evidence concerning Rewa's involvement been available to it.We are in no doubt the answer to that question must be yes.The incontrovertible evidence that Rewa left the semen recovered from Ms Burdett's body must be viewed as of considerable potential impact.He was a lone serial sexual predator upon his numerous hapless victims.As at the date of Ms Burdett's death he was aged almost 40 years, more than twice the age of the appellant.

[24]Although the confessional statements of the appellant were readily accepted by the jury at his trial in 1994 it would not be competent of us to assume the same would be the case with knowledge of the Rewa dimension.The Crown case was based on the confession alone.There was no supportive forensic evidence.The possibility of false confessions to serious criminal offending is recognised : see for example R v Ward [1993] 2 All ER 577 in England and R v Cooney (1993) 10 CRNZ 603 in this country.The appellant's immaturity at the time of his confession and trial, and his marked lack of literacy skills, are relevant elements.In such circumstances caution is required in acting on a confession, the more so when account is taken of the new evidence.We are in no doubt that the case should be reconsidered by another jury.

[25]Accordingly we extend time, grant leave to appeal, and quash the convictions for murder, sexual violation by rape, and aggravated burglary. There shall be an order for a new trial.

Solicitors

Crown Solicitor, Auckland