The first jailhouse witness to be convicted of perjury was prosecuted by a prisoner and a pensioner rather than the police. In a two-part inquiry, Phil Taylor reports on shortcomings exposed along the way.
1. A jailhouse informant convicted of committing perjury in a controversial double-murder case was prosecuted by a pensioner and a prisoner.
2. The Crown has never charged a jailhouse informant for perjury.
3. The police have no special protocols for dealing with them and have no idea how many have given evidence as they don't keep records about their use.
4. Prison witnesses have featured in a high proportion of miscarriage of justice cases in Canada and the United States, prompting safeguards to be ramped up in those countries. There has been no review in New Zealand of judicial safeguards.
5. They have been involved in the miscarriages of justice cases of Teina Pora and Arthur Allan Thomas and their evidence has helped gain murder convictions against David Tamihere, Scott Watson and Mark Lundy.
6. Several experts are calling for a review of the use of prison witnesses.
The whining wicked world of Witness C
He was Johnny-on-the-spot to hear confessions in two murder cases. Except he wasn't; he made it all up.
He claimed David Tamihere boasted about what he had done to two young beautiful Swedish tourists who disappeared on the Coromandel Peninsula in 1989. And he told the jury about it in gross and lurid detail.
He went on to claim that another inmate had confessed his guilt to another murder and twice tried to testify against him but was not called after police inquiries failed to corroborate his story.
Witness C's conviction for perjury in October is a nightmare outcome for the use of prison witnesses in the criminal justice system - and not just because they have been involved in two miscarriages of justice and helped gain convictions in several of the country's most contentious murder cases.
Name suppression, while important in encouraging the cooperation of truthful prison witnesses and to protect them from retribution inside prison, may have emboldened Witness C and other self-interested liars.
Suppression of his name for 27 years has served to limit scrutiny not just of him but also the adequacy of safeguards around the use of prison witnesses.
That he was prosecuted by a pensioner and a prisoner rather than by the police should be cause for concern. It raises questions about whether the authorities have a blind spot.
The police cannot recall ever having laid perjury charges against a prison witness who testified for the Crown. They have, however, successfully prosecuted witnesses who committed perjury to procure acquittal.
Law professor Bill Hodge, former head of the Criminal Bar Association Tony Bouchier, criminology professor Greg Newbold and Tim McKinnel, the former detective who exposed the miscarriage of justice that befell Teina Pora, are among those calling for safeguards associated with prison witness testimony to be strengthened.
In late October, Witness C was sentenced to eight years and seven months' jail for perjury described by Justice Christian Whata as a "brazen assault on the foundation of our criminal justice system".
The judge lifted name suppression but on immediately being advised that Witness C planned to appeal his perjury conviction, ordered interim name suppression. That was lifted last week after Witness C abandoned his appeal against conviction.
Who is witness C?
WITNESS C is double-murderer Roberto Conchie Harris. He has the track record of a man who couldn't lie straight in bed.
Caught for his index crime, the 1983 execution-style shooting of a couple at their rural Northland home, Harris claimed that a young associate was the shooter, only to admit after he was convicted that he fired the shots himself; executing the man first, then calling to his victim's wife and, as she walked by, firing a bullet into her head.
It was "just like having an ice cream", Harris later told his girlfriend, according to reports of her trial testimony.
The bodies were found by the deceased woman's children - aged 10, 9, and 7 - on their return from school.
Harris continued to be a bane in the lives of those poor children. In 1997, he tried to trick the Parole Board - the body that decides on early releases - into accepting that he'd set up a trust for their benefit.
A letter to the board, purporting to be from Harris' barrister Lorraine Smith, was proffered: "Chairman of the Parole Board, This is to verify on Mr Harris' behalf that a trust fund for the victims is in existence."
The board contacted a surprised Smith, who said, "I did not write it and I am concerned about its existence."
Harris may have got the trust fund idea from a fuss that ensued when news broke that he'd been paid $20,000 by ACC for injuries sustained during an attempted prison break. News reports compared this to the $500 for trauma received by each of the children he had left without a mother.
Lifting name suppression won't make much difference to Harris' circumstances. He was widely known in prison as an opportunistic snitch and hardly a candidate for parole.
Harris has spent 30 of the past 32 years behind bars, having blown two chances at freedom. He was recalled from parole in 1994 following complaints of assault and making demands for money, and again in 2006 after he sexually assaulted a 14-year-old girl on the day he was released.
Revenge for that last recall was found to be a motive for an extraordinary fiction that was eventually exposed after a three-day hearing by the Human Rights Review Tribunal.
In that ruse, Harris claimed prison officials breached his privacy by leaving his prison file in an Albany cafe. The file, Harris alleged, fell into the hands of gang members who used the material to threaten the girl and her guardian.
The threatening letters contained phrases and grammatical errors common to Harris, leading the tribunal to conclude that he had written them as a "means of retaliation or revenge" and filed the privacy case to deflect suspicion and in the hope of receiving a compensation payment.
In its decision in 2013 dismissing Harris' claim, the tribunal concluded that his file had not been lost.
What does the perjury conviction mean for Tamihere?
As a result of Harris' conviction for perjury, lawyer, Murray Gibson, will apply to have the Court of Appeal reconsider Tamihere's conviction and also ask Prime Minister Jacinda Ardern for a pardon.
Harris' evidence was significant in allowing damning but suspect identification evidence to be put to the jury.
The Crown case against Tamihere for the murders of tourists Heidi Paakkonen and Urban Hoglin was wholly circumstantial as neither body had been found.
Harris was one of three prisoners - there were also witnesses A and B - who claimed Tamihere confessed. But the detail each gave differed and did not tally with the discovery of Hoglin's body in 1991, a year after Tamihere was convicted.
Harris, for example, claimed Tamihere told him he had killed Hoglin by battering his head with a lump of wood, given his watch to his son, and weighted both bodies before dumping them in the Firth of Thames. However, Hoglin's remains still had his watch on his wrist and his skull was intact. Rather, there was evidence of a stab wound.
Tamihere, faced with irrefutable evidence, admitted stealing the couple's car but insisted he had not met them. The problem for the Crown was proving that he had. Harris' evidence - now found to be perjury - may have proved crucial in this respect.
Two trampers reported meeting a man and a blonde woman at Crosbies Clearing in the Coromandel bush. But the trampers only became sure that the man was Tamihere after breaches of police procedure that prompted the trial judge to chuck out their identification evidence.
Instead of an identity parade, the trampers were shown photos of Tamihere, including police mug shots, and told to get a look at him when he was paraded in front of media at Thames courthouse on a charge of stealing the couple's car.
At a pretrial hearing, Crown prosecutor David Morris argued the trampers' identification was supported by Harris' evidence claiming that Tamihere had told him he was nearly "sprung" when two people came across him with Paakkonen.
In ruling the trampers' identification evidence inadmissible, Sir David Tompkins said, "The danger of doubtful evidence being used to support and corroborate doubtful evidence is obvious."
But Tompkins' decision was overturned by the Court of Appeal on an application citing the apparent corroboration provided by Harris, and the evidence now found to be perjury was put to the jury.
At Harris' sentencing in October, this was noted as an aggravating feature of Harris' perjury. "It was evidence of a cellmate confession and corroborated other evidence described by the Court of Appeal in Tamihere's second appeal as crucial to the Crown case, namely the identification evidence of the two trampers," said Justice Whata.
Gibson, told the Herald that Harris' evidence was powerful because of the apparent corroboration of the trampers' identification and because of the repugnant detail Harris gave of what he claimed Tamihere said he did to the couple.
"David has told me that he knew he had no chance when he heard [Harris] give his evidence," said Gibson. "It was very persuasive evidence, but it was all a lie."
Gibson is frustrated that the Court of Appeal found Harris' evidence to be cogent in allowing damning identification evidence to be put to the jury, but not significant when the discovery of Hoglin's body contradicted key aspects of the prosecution case.
Tamihere was released on parole in November 2010 after serving 20 years.
Why didn't the police prosecute Witness C for perjury?
Perjury is a serious offence that carries a maximum jail term of 14 years.
The evidence on which Harris was convicted was in the public domain - admissions he made in an affidavit (1995), in a television interview with the late Sir Paul Holmes (1996) and in a letter in 2007 to Tamihere's brother, the former MP John Tamihere.
So why didn't the police prosecute? And does the failure to do so betray a blind spot or a bias?
It appears that the police do not act on their own initiative in such cases.
National crime manager Detective Superintendent Tim Anderson told the Herald the police will investigate any suspected perjury where it is prompted by a Court recommendation or by a complaint.
"In the case against 'Witness C', the prison inmate taking the private prosecution did not provide the information in his possession or make a complaint to Police, but elected to initiate proceedings himself, as is his right."
The police, however, quickly took the initiative when Harris accused officers of malpractice in 1996.
In his affidavit, Harris claimed that he was offered money and other inducements and provided with information about the Tamihere case which he used in his evidence. The police commissioner at the time described the claims as "a very grave attack on the police" and asked the Police Complaints Authority (now the Independent Police Complaints Authority) to investigate.
It must be noted that nothing has emerged to support these claims by Harris. The authority concluded that "the allegations of misconduct have no validity whatsoever" and the sentencing judge in the perjury case noted: "The evidence before me did not suggest, and I'll make this very clear, that the police were complicit."
But with the authority having cleared the officers, and thereby having underlined Harris' propensity to lie, it would have been judicious to consider whether Harris may also have lied on oath as a Crown witness.
The Herald's request, made at the beginning of October, to interview Arthur Taylor, the inmate who prosecuted Harris, has still not been processed by Corrections.
But Taylor, who has gained a reputation as a capable litigant while serving a long prison sentence for violence and drug offending, has said he brought the prosecution to show untruthful snitches they can't always get away with it and "to put the police, prosecution and legal counsel on alert to [Harris'] propensity to manipulate the justice system".
The perjury prosecution was based on research done by retired chartered accountant Mike Kalaugher, author of The Marlborough Mystery about the Scott Watson double-murder case. Watson was convicted of the murders of friends Olivia Hope and Ben Smart, who disappeared on New Year's Day, 1998, following a party in the Marlborough Sounds.
Their bodies have not been found but two prison witnesses testified that Watson had confessed. His interest piqued, Kalaugher, along with his wife Jenny, went on to research the use of prison witnesses in New Zealand and has grave concerns.
Kalaugher told the Herald he didn't approach police because he had no confidence that they would prosecute a witness they had relied upon in a high profile case. They had the chance, he said, at the time of the Police Complaints Authority inquiry.
"However, I would welcome it if the police would like to prosecute a jailhouse informant for perjury. There are many jailhouse informants who I believe have committed perjury."