System betrays innocent girls

Why were three girls jailed for a crime they did not commit? NAOMI LARKIN explains how a police investigation went badly wrong.

The yellow, fleecy, hooded sweatshirts had "USA" written in black on the back. The Mt Roskill girls bought them because they were "the latest thing out - those USA hoods".

McCushla (Krishla) Priscilla Fuataha, then aged 14, had one. Tania Mayze Vini, 14, bought two, lending one to her childhood friend Teangarua (Lucy) Akatere, 15.

The girls were not wearing their sweatshirts on Friday, August 12, 1999, a day that was to change their lives forever.

But just owning them turned out to be bad enough.

At 8.25 am that day, a 16-year-old sixth-form student was having a soft drink at Three Kings Plaza, Auckland, on her way to school when five girls set upon her.

She was thumped and kicked and her head banged against a tree stump. She was dragged to a toilet block and robbed of $10.

Each time the girl said she had no more money to give, she was sliced with a pair of scissors. She suffered a cut to her eyebrow, four slashes to her thigh and one to her stomach.

Four of her attackers, she told police, were wearing a "yellow, fleecy hooded top with 'USA' written in black on the back".

The sweatshirts became significant items of circumstantial evidence that were used to tie Vini, Fuataha and Akatere to the crime and ultimately help to jail them.

The teenagers were sent to prison last year for what a judge described as a sadistic slashing and they spent seven months in Mt Eden Women's Prison.

Yesterday, the Court of Appeal, sitting in Auckland, quashed the joint conviction of Akatere, now 17, Vini, 17, and Fuataha, 16, for aggravated robbery.

Justices Bruce Robertson, Thomas Gault and Peter Salmon overturned the conviction - a move the police did not oppose - and told the three that they had the court's sympathy for the injustice that had wrongly sent them to prison.

Justice Gault said the "investigation and trial system failed in this case". The wrongful conviction "raises questions of conduct by the police which is a serious matter and must be properly investigated".

The girls' appeal owed much to the painstaking work of private investigator Bryan Rowe and the efforts of their Court of Appeal lawyer, Gary Gotlieb, he said.

So how could the whole system fail, leaving three innocent girls in prison?

It began one week after the attack when two schoolgirls said they saw the three girls and another girl, Witness X (her name is suppressed), at the Plaza on the morning of the crime.

The two were sure it was that morning because they had gone to school early to work on a special art project.

From this information Balmoral police, led by the officer in charge of the case, former New Zealand test cricket opening batsman Detective Constable Trevor Franklin, separately interviewed the three girls and Witness X. All denied their involvement.

But Witness X, who at 13 was too young to be charged, later confessed her involvement and said the other girls were also involved.

Searches of their homes uncovered the sweatshirts along with a backpack, fitting the description given by the victim, which contained a pair of scissors.

The girls were arrested and, following a depositions hearing and a jury trial in the High Court at Auckland, were sentenced by Justice Tony Randerson last September.

The youngest of the trio, Fuataha, who had just turned 15 and was said to have wielded the weapon, received two years' jail, the other two 18 months.

Vini's father, Vini Kavi, knew his daughter was innocent. He was unable to work for three months because he was too distraught and the family had to rely on the income of his wife, Tania's mother Kaiei Timi, a part-time cleaner.

"I was so upset I didn't know what to do. I knew my girl never committed that crime," Mr Kavi said.

He engaged a private investigator, who discovered nothing of significance and charged him $4000, but eventually put him on to Mr Gotlieb.

"I took one look at the case and I called in Bryan Rowe," Mr Gotlieb said.

As Mr Rowe, a former police superintendent, pored over the evidence he uncovered a series of police blunders and basic oversights that he describes as bordering on criminal offences.

"There are things I have seen in this file that cause me to believe that at least the police should be making inquiries to see if criminal offences have been committed by any police officer."

The complainant, whose identity is covered by a court suppression order, said she had been attacked by five girls. Witness X told the police, and gave evidence twice in court, that it was only four attackers - herself and the three girls.

One of the more damning examples of police failure came via what should have been their trump card - the detailed descriptions given by the victim.

She described the yellow sweatshirts but also gave detailed descriptions of her attackers and the other clothes and accessories they were wearing.

She described five Polynesian girls, aged 16 to 18, between 1.68m (5ft 6in) and 1.83m (6ft) tall and ranging in build from "fat" to "skinny". But Witness X is short - 1.5m (4ft 11in) - and Fuataha, the tallest, is only 1.62m (5ft 4in). The victim also said one of her attackers had a nose stud, yet none of the arrested girls did.

In their statements of denial both Akatere and Vini told the police about a telephone call Akatere made to Vini at 7.43 am on the day of the offence. The police did not check Telecom records, which proved that the call did take place. Mr Rowe, who did obtain confirmation from Telecom, said the call proved the pair could not have physically made it to the Plaza by 8.25 am.

Likewise, the police failed to investigate Fuataha's account that she was at home at the time of the offence. If they had questioned family members they would have found she was telling the truth.

The two schoolgirl witnesses who said they saw the four girls at the Plaza that morning were never called to give evidence, nor were statements of their evidence shown or supplied to the defence.

Evidence emerged that they were mistaken. The group of four were together at the Plaza but not on the day of the attack - it was the previous Friday.

There was more conflicting evidence over Vini's backpack, which was identified by the victim. In his job sheet dated August 23, 1999, Detective Constable Franklin said the victim came into Balmoral station and identified a bag. She said she knew it was the bag one of the girls was carrying because "I remember the adidas logo and the graffiti written on it".

But when she was shown the scissors and sunglasses from the bag, she said they were not the scissors used in the attack.

Although the bag became a court exhibit the scissors were not referred to again.

The day after Witness X made her statement to police she admitted in the presence of her church youth group leader, Malcolm Peak, that she had lied to the police about her involvement and that of the girls.

Mr Peak went to Balmoral station and told Detective Constable Franklin what Witness X had said.

For his troubles Mr Peak was warned not to speak to police witnesses and told he could face up to seven years in prison for interfering with a police witness.

One of the saddest ironies of the case was that both Akatere and the victim knew each other by sight, because they went to the same church.

In her statement to police, made just after the attack, the victim said: "I don't know the girls who assaulted me and I have never seen them before."

Because the victim did not give evidence at the depositions hearing she was unaware that Akatere was one of the accused.

When she saw Akatere at the High Court trial she recognised her from church but, as the Crown Law's memorandum stated, "she did not think the appellants were her attackers. She did not say this at trial because she was not asked".

Supporting testimony for the Crown came from Billy Junior Lukupa, 19, a contract labourer from Glen Innes, who said he had seen Witness X, Vini and Fuataha at the Plaza on the morning of the attack.

Mr Rowe said Lukupa had never met the three. In his statement to police Lukupa said Fuataha had a nose ring. Yet none of the girls or Witness X have had their noses pierced - a fact that Mr Rowe said the police must have known. In Lukupa's brief a nose ring was never mentioned.

Mr Rowe said it was Detective Constable Franklin's legal duty to ensure that Lukupa was a safe witness and the discrepancies that emerged in his evidence indicated this was not the case.

Justice Gault said much of this evidence was not fresh "in that it could have been obtained with reasonable diligence prior to trial" but the main reason the conviction was unsafe was the retraction by Witness X, the Crown's principal witness, and Lukupa.

Early this year Mr Rowe interviewed Witness X, who formally admitted for the first time that she had lied. She told him she was pressured by police into confessing.

On April 2, he took her to Mt Eden Women's Prison where she made a tearful apology to the girls.

Armed with her affidavit, Mr Gotlieb lodged an appeal on April 10 and Auckland City district commander Superintendent Howard Broad agreed to a reinvestigation.

The girls were freed on bail on April 12.

A second investigation into police handling of the case is being carried out by Inspector Rob Marshall at Auckland Central police station. He refused to comment until the investigation is completed.

Detective Constable Trevor Franklin, now stationed at Ponsonby, said he could not comment.