In May 2012, Phil Taylor wrote the first story claiming a miscarriage of justice in the Susan Burdett rape and murder case – 'Innocent man' in jail 20 years. In this report he sets out how the system went wrong.

When Teina Pora's conviction for the 1992 rape and murder of Susan Burdett was quashed by the Privy Council in March it was the end of a long story. Right?

Compensation was the only question remaining. Right?

We could rest easy in the knowledge that the system had worked. Right?

Except for a nagging question. Is what happened to Pora an indication of a justice system that needs help?

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The current and past justice ministers think not.

In response to the Police Association's unprecedented call, made in 2013, for an inquiry into Pora's conviction, Judith Collins said: "New Zealand has an independent highly-regarded judiciary, with a robust appeal process for people who feel they are wrongly convicted."

And when the Privy Council quashed Pora's convictions in March, Amy Adams said: "The New Zealand justice system has a highly regarded, robust appeal process for dealing with people who consider they have been wrongly convicted."

But 21 years and the crucial intervention of a citizen is hardly cause for comfort.

Read more:
Phil Taylor: Malcolm Rewa must go on trial for murder
'Teina Pora was a red herring' - Susan Burdett's brother

Pora's experience is an example of a system that technically worked but failed nonetheless. Evidence wasn't planted, as in the Crewe murders; rules weren't broken when Pora made his "admissions", despite him being asked leading questions and not being challenged as to whether he was making the whole thing up. Trials included paid witnesses and a jailhouse informant, but that's allowed too.

That Pora exhausted available appeals in New Zealand (except the Royal prerogative of mercy which he abandoned in favour of the Privy Council) underlines the need for an independent government-sanctioned criminal cases review commission to sit beside and independent of the justice system.

The very similar responses from Collins and Adams sounded like a door closing and, to me, like deja vu.

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"I don't intend to talk about that," said Detective Superintendent Andy Lovelock three years ago when the Herald first asked whether police had paid witnesses in the Burdett case. "The matter has been before the High Court on two occasions, Teina Pora has been convicted on two occasions ... the appeal period was over very promptly after that. That's the case over."

It seemed like scrutiny of a conviction twice won was unwelcome.

Exclusive: Teina Pora's first interview

Watch the full video of Phil Taylor's interview with Teina Pora tonight at 6.30pm

Pora, you will recall, was convicted in 1994 and, after that conviction was quashed, he was found guilty again in 2000 - mainly on confessions the Privy Council has now ruled are unreliable because of brain impairment caused by fetal alcohol spectrum disorder. Pora's may be the last New Zealand appeal heard by the British court now that New Zealand has a Supreme Court.

The Herald followed up the paid witnesses issue with a request to the police under the Official Information Act (OIA). That was refused on the ground that no such records existed. Another door may have closed had we not known about references to payments on files held by the High Court. How come this wasn't on the case master file held by the police?

Eventually, a spokeswoman for assistant police commissioner Malcolm Burgess said that the absence of such records could not be explained. It took seven months to get to the point where the Herald could publish this story:

This is an example of the sort of frustrations faced by the man who came to Pora's aid. Tim McKinnel, a self-employed investigator, was drawn to Pora's case because of heated rows he witnessed among senior police officers when he was a young detective working the Manukau beat.

That level of disagreement about the guilt or innocence of a convicted felon was rare enough to be memorable and so McKinnel, who went on to gain a degree in criminology, looked into the case after leaving the police.

He has told the Herald he had no idea how difficult it was going to be. Extracting information from official files about the Burdett case was like "pulling teeth", he said. For example, requests for information held on the file of convicted serial rapist Malcolm Rewa (whose semen was in Ms Burdett's body) was denied on privacy grounds even though it was plainly relevant.

It wasn't unusual for McKinnel to receive pages and pages of documents with all content blanked out. He, and lawyers Jonathan Krebs and Ingrid Squire, battled away for five years, twice resorting to suing the police.

Lawyer Jonathan Krebs (R) and private investigator Tim McKinnell speaking to the media in 2014. File photo / Sarah Ivey
Lawyer Jonathan Krebs (R) and private investigator Tim McKinnell speaking to the media in 2014. File photo / Sarah Ivey

There is at least a perception of a conflict when the police are the guardians of information that might potentially expose a wrongful conviction. Statistics on solved homicides is a key indicator of police effectiveness and carries public relations and political implications.

A refusal to release information can be appealed to the Ombudsman but the value of this safeguard is diluted by often very long delays. The Herald's complaint about the paid witnesses issue, for example, hadn't been assigned to an investigator months later.

Because it would be sanctioned by the Government, a criminal cases review commission wouldn't face these hurdles and so would eliminate the perception of such a possible conflict of interest.

Such a body could also have thoroughly reviewed Pora's case years ago.

What went wrong in the Burdett case?

Slack police work and inadequate information sharing between districts helped Rewa evade detection. The former meant a chance was missed to catch him at the beginning of the series of 25 attacks he was eventually convicted for. Five years after that missed chance, Ms Burdett became victim number 10.

Malcolm Rewa.
Malcolm Rewa.

Rewa's first victim gave police his name. That Rewa had already done time for a sex attack - he was convicted of the attempted rape of a nurse a decade earlier when he was 22 - should have been a red flag. But police didn't questioned him for almost seven months and when he claimed to have been drinking with a mate the night of that first rape, they failed to check his alibi.

The victim has said she felt as though she "wasn't important" in the eyes of the police, possibly because she was in a relationship with a Highway 61 gang member - the same gang Rewa was with.

She was let down again 11 years later when, during Rewa's trial, the Burdett case head, the now retired Detective Inspector Steve Rutherford, defended police work on that first rape saying, "this was one case where criticism should go to the people who lied and provided false alibis".

The chairman of the Independent Police Conduct Authority, judge Sir David Carruthers, last year ruled that Rutherford had got the facts wrong.

Carruthers also found that police failed to take a formal statement from this victim about her identification of Rewa, spoke to Rewa informally, failed to probe Rewa for details of the night of the attack, "and, principally, there was no evidence of any attempt to make inquiries that might have corroborated or called into question the alibi given by him".

Read the IPCA finding here:

The officer who didn't follow up on the alibi, Superintendent Andy McGregor, now one of the South Island's most senior officers, has apologised.

Other chances were missed because in the paper-based system that operated at the time, information was not readily shared between police stations, crimes were miss-coded as burglary or robbery rather than having a sexual motive, and because Rewa refused to take part in a line up to confirm a photo identification made by a victim.

Carruthers concluded that chances were missed to arrest Rewa for a 1991 burglary and 1993 loitering incident because follow up inquiries were not done. However, he felt unable to say, whether any of these failings resulted in the failure to identify Rewa earlier as the serial rapist.

What was the evidence against Teina Pora?

Both trials were based on Pora's own statements - described as "vague" and "wildly inconsistent" by the Privy Council - that the 17-year-old made during four days of interviews without a lawyer present (police did ring a lawyer who declined to attend).

The case was a year old and without leads when Pora was arrested on a bench warrant for stealing cars. He'd given a DNA sample the previous year and been discounted as a suspect.

Now, with a baby daughter, the son of a mother who died when he was four and a father who was seldom around, faced going to jail on the car crimes. He was also in a bitter dispute with senior Mongrel Mob members having pinched back a car they had taken from him.

It was clear Pora wasn't bright but his fetal alcohol syndrome disorder and its possible explanation for him confessing to something he had not done, would not be identified for another two decades.

But there were plenty of signs Pora was making up stories, and he had the motivations of a $20,000 reward and indemnity against prosecution, the chance to get certain gang members off his back and to ingratiate himself to the police.

The gang members Pora claimed had raped Ms Burdett were cleared by DNA. Pora claimed to be the driver but got lost taking police to her street. He claimed he followed her car but couldn't give the most basic description of it even though he was a seasoned car thief.

He couldn't pick out her house when stood in front of it. He said he and the two mobsters struggled with her on the bed but didn't know it was a waterbed. Her body was found half off the bed, but he said she was in the middle.

And he said she was fair and fat when she was dark-haired and thin.

Susan Burdett's bedroom, with the baseball bat seen on the bed. File photo / NZ Herald
Susan Burdett's bedroom, with the baseball bat seen on the bed. File photo / NZ Herald

Circumstantial evidence the Crown still says may imply guilty knowledge includes that a bat may have been used and that Pora had pointed to a window found open by the person who discovered Ms Burdett's body.

There was evidence that Pora said he saw a baseball bat in a concrete pipe several kilometres away from Ms Burdett's Pah Road home. Ms Burdett kept a baseball bat in her bedroom and that bat was found on her bed next to her body. Neither bat could be conclusively identified as having been used to inflict the fatal injuries but her injuries were consistent with being struck by such an object.

Pora promptly contradicted himself about entry, claiming to have been let in by other offenders through a door, a volte-face that occurred within three transcribed lines and two successive questions on the interview transcript. Then later, he said that they all got in a window on another side of the house.

Pora's accounts were "strewn with inconsistencies, contradictions, implausibility and vagueness," the Privy Council judgement said, and his replies to questions were at times "halting, hesitant, incoherent and bizarre".

The Privy Council considers Teina Pora's case.
The Privy Council considers Teina Pora's case.

The high point of what the Crown claims was Pora's special knowledge came down to Pora saying he had looked through a "suitcase type bag" which contained papers, the Privy Council heard. Police had found Ms Burdett's unlocked briefcase on the bed and papers spread across the floor.

Pora said there was a "suitcase" on the floor. An interviewing detective replied: "A suitcase-type bag". Two days later this became a suitcase containing papers. Pora was asked repeatedly about its location but never said it was on the bed.

Solicitor-General Mike Heron, QC, told the Privy Council in November that it was "extraordinary if that is confabulation." But the Privy Council's Lord Toulson summed up the dilemma of Pora's confessions noting, that "every time he said something consistent, there is something on the next page that isn't. The question is, which particular selection do you make?"

Nine hours of interviews conducted over four days were videotaped. There are indications there were substantial conversations between detectives and Pora that were off camera.

Speaking to the Herald on the eve of the Privy Council appeal last November, Heron said the reliability of the confessions was the issue from the start and due process was followed.

Police consulted the Crown Solicitor and it was decided there was sufficient evidence to put to a jury. "It did set off alarm bells," said Heron. There was pre-trial argument in the High Court, then a five-day hearing before a full Court of Appeal panel which ruled the confessions were admissible.

The jury watched the video interviews and returned guilty verdicts.

After Pora was convicted at his first trial, he was approached in prison at least twice by detectives hoping he would give them the name of the person whose semen was at the scene.

Interviewed in 1995 by Detective Sergeant Mark Williams over two days, Pora gave a different account of what happened and who was involved. After investigating the claims, Williams concluded the police had been "led up the garden path".

Then in 1996 with a reward of $50,000 available for information leading to the identification of the person whose semen was in Ms Burdett's body, police spoke to Pora again. Another name, another wild goose chase.

The situation changed dramatically after Rewa, a prolific serial rapist was matched by DNA to the semen.

Rewa's explanation for the presence of his semen was shot down in court. He'd claimed that he and Ms Burdett were in a secret relationship, had shared an ecstasy tablet and had sex that evening before she went to tenpin bowling and returned to her home and to her fate.

But toxicology tests found no trace of drugs in her system and no semen was found in her underwear, indicating the semen was deposited after she undressed at home.

The Privy Council was clear: "The man who raped Ms Burdett was undoubtedly Malcolm Rewa. That she was killed at the time that she was raped is not open to doubt. Unless Pora was present at the time of the rape he could not be implicated in Ms Burdett's murder."

The identification of Rewa should have sounded warning bells everywhere. He had a track record of attacking woman on his own, a history of being cautious, suffered from erectile dysfunction and was a senior member of Highway 61, rivals of the Mongrel Mob, some of whose members Pora was known to associate with.

Rewa was charged with sex attacks on 27 women (including Ms Burdett) from 1987 to 1996 and convicted of 25.

Twenty-four women survived to tell that Rewa was alone and many told of his erectile dysfunction, described by the Crown at Rewa's trial as his "embarrassing" affliction.

Having a young accomplice along on a night out raping didn't square with the caution Rewa had otherwise shown. After his palm print led to his conviction in 1975 of the attempted rape of a nurse in Auckland Hospital's nurses' home, Rewa never again left a print. And it was four years and 15 known victims after Burdett before his DNA showed up again, a tiny semen spot on a dressing gown.

The DNA link to Rewa prompted the Court of Appeal to quash Pora's convictions and order a retrial.

Here was a chance for the authorities to ask themselves whether Pora had led them up the garden path about everything.

Did the police inquiry suffer tunnel vision?

Some time before Pora was charged in March 1993, the police were on the right track.

Based on modus operandi, Williams had concluded that Ms Burdett's killer was responsible for three earlier rapes. He'd earlier asked the Institute of Environmental Science and Research (ESR) to cross-check semen from the Burdett case to DNA from the scene of a rape in Otahuhu and later extended his request to two more rapes (all of which Rewa eventually admitted).

The inquiry team was otherwise out of leads and so while they waited for word from the scientists, the case was filed with the exception of another initiative of Williams'.

In the weeks before Pora turned up, he set up Operation Nightwatch, a dragnet where officers would question suspicious people on south Auckland streets at night in the hope it would turn up the serial rapist whose DNA was in Ms Burdett's body.

Pora's defence wasn't told of the police's belief that a serial rapist was involved. Had they known they could have sought to have Pora's trial delayed until the ESR completed testing.

It appears the focus turned to Pora once he claimed to have had a role in the crimes and didn't return to trying to identify the serial rapist (apart from asking Pora who he was) until after he was convicted.

One month after Pora was found guilty in 1994, police asked ESR scientist Sally-Ann Harbison to attend a Burdett homicide inquiry meeting to discuss "ESR progress". No further information has come to light about this meeting. Because of incomplete records, exactly when a DNA link was made between the Burdett case and other rapes cannot be pinpointed, but in 1996 a DNA link between Rewa and the semen was made.

Rewa was convicted of her rape in December 1998 and the Court of Appeal quashed Pora's conviction on the grounds that had the DNA link to Rewa along with his distinctive style of offending been before the jury, Pora may not have been convicted.

The quashing of Pora's convictions offered an opportunity to look at the case afresh.

Police could have raised at an official level the alarm being expressed privately by some senior police officers. Or they could try to link Pora, the 16-year-old car thief and associate of Mongrel Mob members with the 39 year-old Highway 61 gang member.

The wording in a to-do list jotted in Williams' notebook may betray a mindset. Rather than is there a link, he wrote: "Who should we see to show an association between Hama [Rewa] and Teina?"

Pora's aunty, Terry McLoughlin, was brought back into the picture. She gave evidence at his first trial and was paid $5000 by the police.

She had been promoting her view that Pora was involved since hearing about the bat in the drain near the velodrome soon after the murder. But information from her and other family members was discounted as meddling by the police inquiry. A sister eventually told police she made up a story implicating Pora because "I don't like my brother. I thought he would get locked away."

Pora denied involvement and provided a DNA sample and was dismissed as a suspect in June 1992. "False evidence and conspiracy" was cited by detective sergeant Karl Wright-St Clair (now Inspector) in a file note.

"The motive for this was that neither aunt approves of Teina's criminal behaviour and they all wanted him placed in prison and out of the way," Wright-Sinclair wrote. "I suggest that no further action be taken in relation to Teina Pora as a suspect ... There has already been enough police resources wasted in relation to this matter."

Read the Wright-Sinclair document here:

After Pora's convictions were quashed, Aunty Terry was shown three photos of Rewa (when usual police practice requires a photoboard of at least six different people). She said she recognised Rewa.

A witness paid $3000 claimed that he'd seen Pora and Rewa together but then failed to pick Pora from a police photoboard. Another witness, paid $7000, and a jailhouse informant all testified in court cases to the effect that Pora and Rewa knew each other. All were granted name suppression.

The jailhouse informant, who was on remand for armed robbery, also claimed Pora had told him that he had killed before. That witness received a letter from police noting that he had been of assistance.

It is usual practice for judges to caution juries about the inherent reliability risk of jailhouse informants but they nontheless remain a vexed issue. A retired senior judge has told this writer about such a witness - unrelated to the Burdett case - who had seemed to have a knack of being on the spot to hear crucial evidence when he was himself in trouble.

The judge in Pora's second trial noted that the Crown was "at pains" to establish a link between Pora and Rewa but it is unclear what the jury was told about benefits police provided to witnesses.

Pora has remained adamant he was not involved since being charged, a stance that may have cost him an additional 14 years in jail. The Herald understands that Pora rejected a plea bargain offer whereby he could have been released in 2000 if he had pleaded guilty to the lesser charge of manslaughter. He was eventually released on parole in April last year.

Should Pora's retrial have heard from the police's expert on Rewa?

The expert witness in the case that saw Rewa convicted of sex attacks on two dozen women, could not be called by the Crown in Pora's trial because he would have ruined the prosecution's case by stating that he believed Rewa alone raped and murdered Ms Burdett.

It was criminal profiler Dave Henwood's detailed charts about Rewa's criminal signature - his habits deduced from those attacks and those apparent from the Burdett scene - that made up the case against Rewa. A prominent characteristic was that he was a lone wolf. The Crown said there was good reason for him to rape alone - he suffered from erectile dysfunction. This aspect of Rewa's offending was not presented at Pora's retrial.

Criminal profiler Dave Henwood. Photo / Brett Phibbs
Criminal profiler Dave Henwood. Photo / Brett Phibbs

Pora's defence did not call Henwood. Either they were unaware of his opinion or wouldn't risk calling a police officer. The jury, therefore, did not get to hear the expert evidence that convicted the country's most brutal serial rapist and how it was pertinent to Pora's case.

Henwood made his view public 12 years later telling the Herald he has no doubt that Pora was not involved in the Burdett crimes. He was censured by police headquarters for speaking to the newspaper.

Have police pursued the other alleged offenders?

With Rewa convicted of Ms Burdett's rape, and Pora for rape and murder, the police had a result for those terrible crimes. But what of the mystery men that according to the Crown were co-offenders?

The case against Pora in 1994 was that he and two unknown men raped and killed Ms Burdett. After DNA testing linked the semen to Rewa, potentially four were involved.

The Crown case at Pora's retrial in 2000 was that though he clearly hadn't told the whole truth - because he hadn't mentioned Rewa - the essence of his confession was accurate and his stories about being involved with two mobsters was put to the jury. After the trial Rutherford said that other offenders were believed to be involved and the case remained open.

What work has since been done try to identify these other offenders?

Lovelock refused to comment when the Herald asked in May 2012.

McKinnel's research has found no indication any work was done between Pora being convicted a second time and McKinnel approaching the police in 2009.

The Crown still says there is enough evidence to try Pora a third time. Heron also told the Privy Council a third trial would not be in the public interest as Pora had already served 21 years in prison and because the prison informant had died.

Neither does the Crown want to try Rewa again. That prosecution was stayed in 1998 after a second jury failed to reach a verdict on murder. "No exceptional circumstances exist to justify lifting that stay," Heron told the law lords.

But what may be exceptional is that because of his mental shortcomings and his circumstances, Pora led the authorities so far up the garden path they could not find their way back.

Henwood is clear about what resulted. "You've got a joker who is not convicted of murdering Susan Burdett, who did murder her," he told the Herald in 2012, "and the reason is Pora is in the road."

Rewa is currently serving a sentence of preventative detention with a 22-year minimum non-parole period for 25 sex attacks, including 14 years to be served concurrently for Ms Burdett's rape.

Pora has applied to the Government for compensation.

Teina Pora gets a hug from his daughter Channelle and his grandson Benson, 5, after the Privy Council verdict quashing his murder conviction was announced. Photo / Dean Purcell
Teina Pora gets a hug from his daughter Channelle and his grandson Benson, 5, after the Privy Council verdict quashing his murder conviction was announced. Photo / Dean Purcell