An error in not calling evidence regarding the erectile dysfunction of a serial rapist caused Teina Pora to be wrongly convicted of Susan Burdett's rape and murder, the Privy Council in London was told overnight.
Malcolm Rewa was convicted of the rape of Susan Burdett after his semen was identified at the scene but two juries could not reach a verdict on murder.
Pora was twice convicted of her rape and murder but his lawyer Ingrid Squire told a Privy Council panel of five including New Zealand Chief Justice Dame Sian Elias, that evidence of Rewa's erectile dysfunction, self-masturbation, trying to disguise these and trying to achieve penetration by positioning his victims' bodies off the bed was available at Pora's retrial in 2000.
Ms Squire said such evidence could have been given by a majority of the 24 of Rewa's surviving victims and would have shown that Rewa suffered embarrassment and was unlikely to have had an accomplice.
This aspect of Pora's current appeal relied on three witnesses, former detective sergeant Dave Henwood, a criminal profiler, who would have given evidence of the relevance of the positioning of Ms Burdett's body, expert evidence from a psychologist that Rewa's difficulties would have led him to offend alone, and an affidavit from trial lawyer Marie Dyhrberg, QC, stating that she had erred in not calling those witnesses to give evidence.
Ms Squire contested evidence that the Crown had claimed distinguished the scene of Ms Burdett's murder with the scenes of Rewa's other offending, chiefly that fatal violence used on Ms Burdett was inconsistent with Rewa's other offending.
The crime scene was entirely consistent with evidence Rewa used only sufficient violence to subdue his victims, Ms Squire said. Evidence from a friend and Ms Burdett's son was that she would not submit to an offender and a pathologist said a bruise on her hand may have been a defence wound and a cut on a knuckle might suggest she threw a punch.
The Crown contended that a jury would not have returned a different verdict on the basis of admissible new evidence produced by Pora's lawyers.
Solicitor-General Michael Heron, QC, said Professor Gisli Gudjonsson, an expert on false confessions, had overstepped the mark by concluding Pora's confession was unreliable. It was acceptable for the professor to identify features that indicated Pora's admissions might not be reliable, but not to go on to express an opinion that the confession was therefore unreliable.
Mr Heron confirmed that Foetal Alcohol Spectrum Disorder, which Pora has recently been diagnosed as suffering from, was not canvassed at Pora's trial.
He told the panel that Pora had made confessionary statements before and after his police confessions to a range of people including his aunt and uncle. Mr Heron confirmed that Pora's aunt, Terry McLaughlin, who gave evidence at his retrial, was paid $5000.
There was evidence Pora had gone to the Manukau Superstrike Bowling alley where Ms Burdett was before she was attacked on her return home, that Pora had blood on his rugby league jersey (though he'd said it was from a rugby injury).
A number of people had testified to having seen Pora and Rewa together before and after the murder and Pora had special knowledge about the crime that indicated he was involved, including that after police showed him Ms Burdett's house he went to the bedroom window that was found open by the person who discovered her body.
He had also correctly said that there was a briefcase in the house containing papers. "It is extraordinary if [the briefcase information] is confabulation. That information had not been in the public arena."
Reasons offered for false confessions
Teina Pora has a mental age of nine or 10 years for the purpose of understanding, the Privy Council was told last night.
None of the trial or appeal courts or any of the psychologists who examined him during that period were aware that "he suffers from a brain-based disability and has done since birth", Pora's lawyer, Jonathan Krebs, said.
Pora's lawyers are seeking to persuade the Privy Council that had a diagnosis that he suffers from Foetal Alcohol Spectrum Disorder been known it would have made a difference to the outcome.
The consequences of the condition for Pora were a high degree of suggestibility, a tendency to be easily confused and a drive to please others.
Mr Krebs said this was relevant because the two juries that convicted Pora assessed his confessions as though they were made "by a cogent and mature person".
Pora was convicted of the rape and murder of Susan Burdett in 2000 at a retrial ordered after the semen from Ms Burdett was found to belong to Malcolm Rewa.
Rewa was a habitual lone offender convicted of sex attacks on 27 women including Ms Burdett, who was raped and murdered in March 1992 after returning to her Papatoetoe home from 10-pin bowling.
She was believed to have been battered. A softball bat she kept for her own protection was found beside her body.
No physical evidence was found to link Pora to the crimes. But Solicitor-General Michael Heron, QC, told the Herald prior to the hearing that "there are surrounding circumstances and some pretty special knowledge that Mr Pora exhibits that makes the convictions safe".
Mr Krebs is seeking to persuade the panel to consider evidence of Professor Gisli Gudjonsson, an expert in false confessions, who has concluded that Pora's confessions are unreliable and may have been motivated by a desire to gain reward money along with the findings of experts in the diagnosis of Foetal Alcohol Spectrum Disorder, neuropsychologist Dr Valerie McGinn and psychiatrist Dr Craig Immelman.
At time of Pora's retrial in 2000 the disorder was unknown in New Zealand.
All of the experts' reports "dove-tailed", Mr Krebs said. Pora's reading, writing and maths were impaired to the level of a nine or 10 year-old, he had limited understanding of the meaning of words, poor verbal skills, an inability to compare situations, a desire to please and a high level of suggestibility.
He had a tendency to say and do what at the time appeared to be to his advantage without realising he was doing it.
Mr Krebs said Pora had began with a grand lie, hoping to gain a reward on offer, and made up imaginary details to fill in the gaps in his story.
The panel watched a section of a police interview video with Pora where he is unable to identify Ms Burdett's house and when it is pointed out to him he comments that the hedge had grown when it had been trimmed to about half the size of the time of her murder.
They were also told of an offer made to Pora in 1995 - after he was first convicted and before Rewa was linked to the semen at the murder scene - of $50,000 and help with parole if he provided the name of the person who had raped Ms Burdett.
"Pora provided another set of names, none of whom were the offender. "One would think that he would have named Mr Rewa had he known," Mr Krebs said.
But Lord Hughes pointed out that the jury at Pora's second trial were aware that Pora had named five people who the Crown accepted had nothing to do with the rape.
The Crown, represented by Mr Heron, QC, Dr Mathew Downs and Zoe Hamill will make its submissions on day two.
Mr Krebs was assisted by Ingrid Squire and Dr Malcolm Birdling.
Dame Sian Elias is on the panel of the Judicial Committee of the Privy Council along with Lord Kerr, Lord Hughes, Lord Reed and Lord Toulson.
• Would fresh expert opinion that Pora made a false confession have made a difference to the verdict
• Would new evidence that Pora suffers from Foetal Alcohol Spectrum Disorder have made a difference to the verdict
• Would the jury have reached a different conclusion had it known that Malcolm Rewa (convicted of raping Susan Burdett) suffered from erectile dysfunction