Tamihere v R - [2024] NZCA 300
Date of Judgment
09 July 2024
Media releases
Decision
Summary
CRIMINAL LAW – Governor-General’s reference – Miscarriage of justice – Proviso
Under the proviso to s 385(1) of the Crimes Act 1961, the Court was satisfied beyond reasonable doubt that Mr Tamihere murdered Mr Höglin and Ms Paakkonen in April 1989. Accordingly, the Court declined to exercise its jurisdiction under s 406(1)(a) to quash Mr Tamihere’s convictions.
On 5 December 1990, Mr Tamihere was convicted of the murders of Mr Höglin and Ms Paakkonen, tourists from Sweden who disappeared in bush country on the Coromandel Peninsula after last being seen in Thames on 7 April 1989.
The Crown’s theory at trial was that Mr Tamihere, who was living in the bush at the time, murdered the couple somewhere near Crosbies Clearing, north of Thames. Its case included the eyewitness evidence of two trampers, John Cassidy and Theodore Knauf. They identified Mr Tamihere as the man they encountered at Crosbies Clearing with a young, blonde, European-looking woman, a description which would fit Ms Paakkonen, at around 3 pm on 8 April 1989. Witnesses saw Mr Höglin and Ms Paakkonen’s car parked at the end of Tararu Creek Road, which is the nearest place by car to Crosbies Clearing, on 9 April. Mr Tamihere admitted stealing their car from there and dumping or selling their possessions. The Crown case was otherwise circumstantial.
In 2020, the Governor-General referred Mr Tamihere’s convictions to the Court of Appeal to decide whether a miscarriage of justice may have occurred. If it had, the Court would quash his convictions unless it found that the evidence proved his guilt beyond reasonable doubt.
Two events since the trial led to the reference. The first was that, more than two years after he disappeared, Mr Höglin’s skeletal remains were found in bush in Wentworth Valley, which is a considerable distance from Crosbies Clearing and the end of Tararu Creek Road. Ms Paakkonen’s remains have never been found. The second was that the Crown case included evidence from a prison informant, Robert Conchie Harris, that Mr Tamihere had disclosed that he had almost been “sprung” by “a couple” while he was in the bush with Ms Paakkonen. That account tended to corroborate the trampers’ identifications. Mr Harris was convicted in 2019 of perjury in connection with that evidence. Taken together, the reference said these two events may raise doubts about the accuracy of the trampers’ identifications.
The Court considered evidence which was new in the sense that the jury had not heard it. It comprised evidence tending to show that, contrary to his account to police, Mr Tamihere was in the Wentworth Valley area about the time the Swedish couple went missing.
The Court found that the admission of Mr Harris’s evidence at Mr Tamihere’s trial may have affected the jury’s verdicts and accordingly amounted to a miscarriage of justice. It also differed from the Court’s reasoning in Mr Tamihere’s 1992 conviction appeal, which was argued after Mr Höglin’s remains were found.
However, the error did not justify setting the convictions aside. The Court found under the proviso to s 385(1) of the Crimes Act that no substantial miscarriage of justice occurred. That is so because the other evidence proved beyond reasonable doubt that it was Mr Tamihere who murdered Mr Höglin and Ms Paakkonen.
The Court found that the trampers’ visual identifications were reliable but, having regard to unsatisfactory circumstances in which the identifications were first made, their visual identification evidence would not have proved Mr Tamihere’s identity beyond reasonable doubt if it was the only evidence identifying him as the man they encountered at Crosbies Clearing.
However, the identifications were strongly supported by other reliable evidence from a number of sources. The other evidence included the finding at Mr Tamihere’s home of distinctive items remarked on by the trampers, his use of the couple’s key to gain access to their car, the finding of Ms Paakkonen’s wallet and jacket between Tararu Creek Road and Crosbies Clearing, his treatment of the couple’s property at Tararu Creek Road, his admissions when confronted with evidence he could not explain away, and certain proven lies. The judgment examines this other evidence in depth. It cannot be known exactly what happened to Ms Paakkonen, but the Court found the evidence consistent with a sequence of events in which the couple encountered Mr Tamihere at Wentworth, where Mr Höglin was killed and Ms Paakkonen was abducted and taken to Tararu Creek Road in the couple’s car.
Under the proviso to s 385(1) of the Crimes Act 1961, the Court was satisfied beyond reasonable doubt that Mr Tamihere murdered Mr Höglin and Ms Paakkonen in April 1989. Accordingly, the Court declined to exercise its jurisdiction under s 406(1)(a) to quash Mr Tamihere’s convictions.
On 5 December 1990, Mr Tamihere was convicted of the murders of Mr Höglin and Ms Paakkonen, tourists from Sweden who disappeared in bush country on the Coromandel Peninsula after last being seen in Thames on 7 April 1989.
The Crown’s theory at trial was that Mr Tamihere, who was living in the bush at the time, murdered the couple somewhere near Crosbies Clearing, north of Thames. Its case included the eyewitness evidence of two trampers, John Cassidy and Theodore Knauf. They identified Mr Tamihere as the man they encountered at Crosbies Clearing with a young, blonde, European-looking woman, a description which would fit Ms Paakkonen, at around 3 pm on 8 April 1989. Witnesses saw Mr Höglin and Ms Paakkonen’s car parked at the end of Tararu Creek Road, which is the nearest place by car to Crosbies Clearing, on 9 April. Mr Tamihere admitted stealing their car from there and dumping or selling their possessions. The Crown case was otherwise circumstantial.
In 2020, the Governor-General referred Mr Tamihere’s convictions to the Court of Appeal to decide whether a miscarriage of justice may have occurred. If it had, the Court would quash his convictions unless it found that the evidence proved his guilt beyond reasonable doubt.
Two events since the trial led to the reference. The first was that, more than two years after he disappeared, Mr Höglin’s skeletal remains were found in bush in Wentworth Valley, which is a considerable distance from Crosbies Clearing and the end of Tararu Creek Road. Ms Paakkonen’s remains have never been found. The second was that the Crown case included evidence from a prison informant, Robert Conchie Harris, that Mr Tamihere had disclosed that he had almost been “sprung” by “a couple” while he was in the bush with Ms Paakkonen. That account tended to corroborate the trampers’ identifications. Mr Harris was convicted in 2019 of perjury in connection with that evidence. Taken together, the reference said these two events may raise doubts about the accuracy of the trampers’ identifications.
The Court considered evidence which was new in the sense that the jury had not heard it. It comprised evidence tending to show that, contrary to his account to police, Mr Tamihere was in the Wentworth Valley area about the time the Swedish couple went missing.
The Court found that the admission of Mr Harris’s evidence at Mr Tamihere’s trial may have affected the jury’s verdicts and accordingly amounted to a miscarriage of justice. It also differed from the Court’s reasoning in Mr Tamihere’s 1992 conviction appeal, which was argued after Mr Höglin’s remains were found.
However, the error did not justify setting the convictions aside. The Court found under the proviso to s 385(1) of the Crimes Act that no substantial miscarriage of justice occurred. That is so because the other evidence proved beyond reasonable doubt that it was Mr Tamihere who murdered Mr Höglin and Ms Paakkonen.
The Court found that the trampers’ visual identifications were reliable but, having regard to unsatisfactory circumstances in which the identifications were first made, their visual identification evidence would not have proved Mr Tamihere’s identity beyond reasonable doubt if it was the only evidence identifying him as the man they encountered at Crosbies Clearing.
However, the identifications were strongly supported by other reliable evidence from a number of sources. The other evidence included the finding at Mr Tamihere’s home of distinctive items remarked on by the trampers, his use of the couple’s key to gain access to their car, the finding of Ms Paakkonen’s wallet and jacket between Tararu Creek Road and Crosbies Clearing, his treatment of the couple’s property at Tararu Creek Road, his admissions when confronted with evidence he could not explain away, and certain proven lies. The judgment examines this other evidence in depth. It cannot be known exactly what happened to Ms Paakkonen, but the Court found the evidence consistent with a sequence of events in which the couple encountered Mr Tamihere at Wentworth, where Mr Höglin was killed and Ms Paakkonen was abducted and taken to Tararu Creek Road in the couple’s car.