Collapse of sea lion Rua case sparks compensation claim

Puppy love ... Joy relaxes with her then 2-week-old pup Rua at the Warrington Domain. Photo / Stephen Jaquiery

Five years after a rare sea lion was found stabbed to death on a Dunedin beach, no one has been held responsible for her death, and the man who went to trial accused of the killing wants compensation after a protracted series of blunders led to the case against him falling apart. It was supposed to be an open-and-shut case.

Within days of a sea lion being found dead on a rocky beach on Otago Peninsula, police had raided the home of local man 57-year-old Graeme Mark Lowery.

Just a couple of months later his bayonet, seized during the search, was analysed by a University of Otago scientist who said the blood on the blade matched that of the 11-month-old victim Rua.

There were also witnesses who said Lowery had sworn he would kill the sea lion after it chewed holes in his nets and stole his fish.

He was arrested and charged. A slam dunk, it appeared.

But five years since Rua's death, Lowery has had the charges against him dismissed following an extended series of errors.

The Dunedin District Court was scheduled to hear a costs application this month — the defendant's bid to recoup some of the debt he had incurred over the years of defending the case — but it was postponed until next year.

Lowery's jury trial finally began, after a series of false starts, in May 2019 but the cracks in the prosecution case had begun to show before then.

Doc's Jim Fyfe retrieved Rua's body from a rocky beach near Portobello in November 2016. Photo / Stephen Jaquiery

DNA

Professor Bruce Robertson works in the University of Otago zoology department, and is an expert on the genetic structure of a range of animals.

But he recalled being "surprised" when Auckland-based DNA diagnostics firm Ecogene contacted him early in 2017.

Ecogene told police that swabs taken from Lowery's bayonet revealed the presence of genetic material from multiple species, including human and New Zealand sea lion.

Robertson, however, took it further.

He concluded DNA in the sample was "highly likely" to be from Rua.

So critical was that conclusion that Lowery was arrested just a few days later and charged with wilfully ill-treating an animal and taking a marine mammal without a permit.

By February 2019, though, a request by defence counsel Judith Ablett-Kerr QC for Robertson's working notes prompted a turnaround.

He no longer stood by his original scientific opinion; and with that the Crown's smoking gun for the jury was gone.

Robertson explained, in essence, that he compared molecular markers in the two samples (one from Rua, one from the weapon).

While he believed one of those markers was "quite unusual" in Rua, a master's student raised issues about its reliability and its use was later dropped.

Alongside that, he said, was the fact the lab was simultaneously analysing penguin faecal samples and there were fears of low-level contamination.

Push back

In March 2019, with just days until a scheduled jury trial, the Crown case was crumbling and Ablett-Kerr went on the attack, applying to have the charges thrown out.

"It's been shoddy from beginning to end," she said of the case against Lowery.

Her client had been in Australia when the search warrant was executed at his Portobello home and there was no evidence the blade had been in his possession at the time Rua was killed, she said.

The late changes in the Crown's case amounted to an abuse of process, argued Ablett-Kerr, accusing the prosecution of doing nothing on the file during 2018.

On bail for more than two years, barred from contact with his sister, grandchildren and daughter (a Crown witness), it had a "tremendous impact" on Lowery's life, she said.

Judge Michael Crosbie, though, declined the application and a new trial was set for May that year.

Threats

Crown prosecutor Craig Power acknowledged in his opening address to the jury that the case against Lowery was circumstantial.

No one saw Rua being stabbed to death, but two people gave evidence of the defendant's growing frustration in the weeks leading up to the killing.

The first, Kelly Cormier, told the court she had met Lowery through an online dating app and had been in a fleeting and tempestuous relationship with him which ended the day before the alleged crime.

She said Lowery had not hidden his vitriol for the sea lion which had been tearing holes in his nets.

"He was going to kill it or poison it," Cormier said.

"It wasn't just one conversation. He went on about it for like a week or 10 days or something."

Their courtship ended spectacularly, after a trip to the pub ended in a shouting match and the woman spending the night away from the defendant and never seeing him again.

Graeme Lowery spent several years on bail before charges against him were dismissed. Photo / Otago Daily Times

Cormier did not hold back when asked of her opinion of Lowery: "[A] big, overbearing, awful, loud, angry man."

Ablett-Kerr suggested it was precisely that perception that led the woman to approach police when she heard about Rua's death.

She was the archetypal woman scorned, exacting her revenge from the witness box — a proposition Cormier denied.

Yes, she was aware of the $500 for information about the incident, but her approaching police was not about cash, she said.

Witness

Lowery's daughter, Carmen, and her children had been living with him for about three months by November 2016.

She, too, recalled conversations with her father about his fishing woes.

The plan, rather poetically, if inaccurately: "He was going to deal with the seal."

She, too, called police when she heard about Rua's death, a fact she did not disclose to her father.

Lowery also faced a vigorous cross-examination about her motivations for testifying.

She admitted tensions in the house were fraught over issues of noise.

Ablett-Kerr put it to her that she had come forward to police because she was angry with her father.

Lowery was no longer able to cope and was going to kick the family out, the lawyer suggested.

The witness disagreed.

Evidence

If the jury was in doubt, perhaps the Crown's scientific witnesses would give them some certainty.

Enter Dr Stuart Hunter, a veterinary pathologist with more than 4000 animal post-mortems under his belt.

His examination of Rua's body first found that she had been stabbed, not shot as it was first suspected.

The first wound was inflicted behind the left flipper in the sea lion's armpit, damaging the lung and penetrating the right side of the chest wall.

The second was to the point of the right shoulder, fracturing the shoulder blade and ending near the vertebrae.

Rua bled to death and a circumspect Hunter confirmed there "would have been a degree of discomfort or pain before she died".

He said both wounds were 15cm deep and likely caused by a blade that was sharp on both edges.

Ablett-Kerr immediately took him to task on his measurements.

How had Rua's body been preserved? What was its state when the examination took place? Was the skin "bunched up" when wound length was measured? Would that make a difference?

There were other photos, better ones than those in the evidence booklet that displayed the nature of the injuries, Hunter said.

Eyebrows rose.

Collapse

The jury was sent away for two days while the police scrambled to work out how much evidence had not been disclosed to the defence.

There were more than 100 photos that Hunter had taken that Ablett-Kerr had not seen, and the problems ran deeper.

Witnesses from Ecogene who were yet to give evidence had also failed to provide all the information of their investigations.

Legal catastrophe

Judge Crosbie declared a mistrial and released the jury.

The disclosure rules were a critical safeguard to ensure anyone charged with a crime was furnished with all relevant evidence so they could mount a credible defence.

Not to do so amounted to "trial by stealth", he said.

The judge was quick to absolve the witnesses of blame.

"It has not been explained to me what steps, if any, were taken to properly acquaint Dr Hunter, or any Crown witness, of disclosure obligations," he said.

"The Crown had lost control of the disclosure process, with the defence expected to cope in-trial with whatever documents emerged."

Unacceptable

Ablett-Kerr had to wait until September 2019 to fire up her second application to have the charges dismissed, and this time she had far more ammunition.

She said it did not matter whether the Crown or police were to blame, only that the errors and their impact Mr Lowery were "egregious".

Nearly three years defending the charges had been "overwhelming for the defendant financially and... had a significant detrimental effect on his mental wellbeing", Ablett-Kerr said.

In contrast, the Crown argued that Lowery could still receive a fair trial and a retrial should be ordered.

Judge Crosbie brushed aside the suggestion the prosecution's failings at trial had been "inadvertent".

It was the first case he had ever come across where there was a breach of disclosure obligations shortly before an aborted trial and again during the rescheduled trial.

Had it not been for the nous of Ablett-Kerr, he said, the evidential shortcomings may never have been detected and Lowery may have been wrongly convicted as a result.

It amounted to "at least, gross negligence".

Judge Crosbie, however, underscored that the blame lay institutionally with the state, rather than with anyone personally.

"Overall, the Crown's approach and failures in this case lack fairness. To proceed to a further trial would tarnish the court's integrity," he said.

"I also find that the delay of some four years from charge to [prospective] trial ... is wholly unacceptable."

Lowery was free.

Police told the Otago Daily Times this week they were not pursuing any further lines of inquiry in relation to Rua's death.

While Lowery refused to comment, he said part of his reluctance was because he was writing a book on his experiences.

Resurgence

Department of Conservation biodiversity ranger Jim Fyfe has worked with the region's sea lion population for more than 20 years.

He retrieved Rua's body from Quarantine Point after a member of the public called in the sad find on November 5, 2016.

On his way to the site, he bumped into Lowery who was setting up a bonfire on the beach.

A chance meeting, a coincidence, but nothing on which Fyfe or the court placed any significance.

He had given evidence at the trial but did not wish to dwell on the outcome.

The tragedy, though, stayed with him.

"The means of her death were quite distressing... it does affect the way I feel about the world," he said.

The return of sea lions to the region, after a 150-year absence, was heralded by Mum (subject of the St Clair Esplanade statue) giving birth in 1994 at Taieri Mouth.

Fyfe said there were now 28 breeding females and he expected 20 pups around the peninsula this season.

This month, while out at Warrington, a favourite spot for Rua's mother, Joy, he had been given a bittersweet reminder of the animal's absence, in the form of Hope.

Joy gave birth to the pup only weeks after Rua's death and Fyfe expected her to start breeding this year; a legacy he hoped would endure.

"I like to think Joy and Hope won out in the end," he said.

Five-year fiasco

November 5, 2016: Sea lion pup Rua found dead on Otago Peninsula.

November 18, 2016: Search warrant executed at Graeme Lowery's home.

February 23, 2017: Professor Bruce Robertson says bayonet found at defendant's home has Rua's blood on it.

February 27, 2017: Lowery is arrested.

March 3, 2017: He appears in court, name suppression granted.

October 4, 2017: Judge John Macdonald indicates Lowery would face a substantial fine if he pleads guilty.

November 17, 2017: Defendant confirms not guilty stance.

February 18, 2019: Defence requests Robertson's working notes.

February 19, 2019: Police forward email showing Robertson resiles from earlier opinion.

March 15, 2019: Trial set down for the following week aborted.

March 18, 2019: Defence makes first application to have charges dismissed.

April 15, 2019: Judge Michael Crosbie declines the application.

May 20, 2019: Jury trial begins in Dunedin District Court.

May 23, 2019: Trial aborted over evidential disclosure issues

September 24, 2019: Defence makes second application for charges to be dismissed.

March 12, 2020: Judge Crosbie releases judgement granting the application.

November, 2021: Lowery's costs application adjourned until 2022.