David Tamihere’s lawyers are making their final bid to prove his innocence of the murder of two Swedish backpackers more than 30 years ago, in one of New Zealand’s most infamous cases.
The Court of Appeal has already found there had been a miscarriage of justice due to false evidence during the original trial in 1990, but still found Tamihere guilty of the murders in a decision last year.
Now, more than three decades after he was first found guilty, Tamihere’s latest appeal is being heard for a second day at the Supreme Court in Auckland.
Tamihere’s lawyer yesterday described the murder trial as “fundamentally defective”, while Crown lawyers today argued that the court can still be sure of Tamihere’s guilt beyond a reasonable doubt.
Tamihere was found guilty of murdering Swedish tourists Urban Höglin, 23, and Heidi Paakkonen, 21, in the Coromandel Ranges in 1989.
Crown lawyer Fergus Sinclair told the Supreme Court that Tamihere had lied to police about his movements and the “only explanation” for this was that he knew where Höglin’s body lay.
Tamihere, now 71 and living in West Auckland, admitted to stealing the Swedish couple’s white Subaru but denied meeting them.
He has always claimed he was framed by police.
Sinclair said Tamihere had links to locations near where Höglin’s body was found, and a re-examination of Tamihere’s claims helped conclude that Tamihere lied.
“Tamihere clearly very deliberately concealed the fact he’s been there at all.
“This is the only conclusion you can reasonably arrive at based on this fresh evidence,” Sinclair said.
“The body’s location does not help Mr Tamihere. It reinforces the conclusion that he is guilty,” the Crown submission says.
But Justice Helen Winkelmann noted that Tamihere had no opportunity to address this new evidence at his trial, and Tamihere wasn’t cross-examined on these details.
“These things that you are now saying were not pursued at trial.
“Mr Tamihere’s accounts, his movements – it was not put to him that he was lying,” Winkelmann said.
A lengthy back-and-forth between the judge panel ensued when the Crown lawyer said that after Tamihere had killed Höglin and poorly concealed his body, he had driven with Paakkonen over to Tararu Creek.
Justice Joe Williams asked if it was “really a respectable theory” that Tamihere would go to another busy area in the Swedish couple’s car after murdering one of them.
“Why would anyone in their right mind travel across the peninsula with Ms Paakkonen in the car?” Justice Williams asked.
“The theory we advanced was that someone was working in a hurry,” Sinclair said.
“Because you can’t control two people, and you don’t want to... there’s haste to get away and not be seen there.”
The evidence of two trampers also linked Tamihere to the crime, Sinclair claimed.
At Crosbies Clearing, the trampers met a man and a woman who were setting up camp - they later identified them as Tamihere and Paakkonen.
The validity of the identifications has been questioned due to the possibility of being tainted by police.
“The admissibility of the trampers’ evidence is very much in my part an issue,” Justice Winkelmann said.
As requested by the judges at the Supreme Court yesterday, Tamihere’s second lawyer James Carruthers presented five cases that included issues of trial unfairness and fundamental errors.
Various aspects of the original Crown case, which was largely based on circumstantial evidence, had now been discredited or abandoned, and “vastly amended” at Tamihere’s appeals over the years, Carruthers told the court.
“Particular issues were never put to Tamihere at trial, as the Crown changed its theory.
“There was an evidential vacuum on these crucial points,” Carruthers said.
The Supreme Court hearing yesterday focused on numerous breaches of fair trial regarding the first murder trial against Tamihere in 1990 - which his lawyer described as “fundamentally defective”.
Tamihere’s long-time lawyer Murray Gibson told the court yesterday that “there are so many errors with respect to the trial not being fair”.
Gibson told the court that the case presented an “unusual circumstance” as a recent court decision had already found there had been a miscarriage of justice.
“The issue now is whether it’s a substantial miscarriage of justice,” Gibson said.
Gibson argued there were six breaches of fair trial rights during the original trial, including a perjured testimony by a jailhouse snitch, “tainted” evidence from two trampers, incorrect claims about a victim’s watch and the affidavit of the late Sir Robert Jones that claimed the lead detective admitted to fabricating evidence.
During Tamihere’s murder trial in November of 1990, a jailhouse informant, then known as “secret witness C”, testified that Tamihere had admitted to the killings while in prison after being sentenced on the earlier rape conviction.
Witness C, a murderer later identified as Roberto Conchie Harris, was later convicted of perjury in connection with that evidence.
Tamihere’s second lawyer, James Carruthers said the Crown and the jury that convicted Tamihere relied on this evidence from Harris, “who we now know was committing egregious perjury”.
Gibson said the Crown case at trial relied heavily on a “marriage” of evidence by two trampers and Harris, describing it as “relatively weak identification evidence corroborated by perjury”.
The trampers failed to identify Tamihere originally, but identified him in their statements the day after they saw him in person in Thames District Court, Gibson said.
The trampers were unable to identify the Swedish couple with images and said they thought that the couple they had spoken to may have been able to help police find the Swedish couple, rather than identifying them as the Swedish couple themselves.
“Honesty is no guarantee against a false impression,” Gibson told the Supreme Court.
The sixth breach related to the affidavit of the late Sir Robert Jones, who said Inspector Hughes introduced evidence he knew to be false.
Gibson said Hughes told Jones, “I nailed [Tamihere] by making up all the evidence”.
“This undermines the integrity of the trial,” Gibson said.
The original trial (and first appeal) proceeded on a “false premise”, Tamihere’s lawyers said, because the Crown’s case was based on the theory that the bodies were disposed of in Crosbies Clearing.
It was after Tamihere’s conviction, despite the Crown having no bodies or a murder weapon, that the case was first turned on its head years ago.
Exactly two years after Tamihere was charged, Höglin’s body was found in a shallow grave by pig hunters near Whangamatā – more than 70km from where the Crown said the murders had happened.
Another breach of fair trial was the false evidence that Tamihere had stolen Höglin’s watch - the watch was later found on the wrist of Höglin’s body after the trial.
Gibson said the watch was originally presented as an important piece of evidence because it linked Tamihere to the couple, not just their car, which he had admitted stealing.
The discovery of Höglin’s body was not enough to convince the Court of Appeal in 1992, or the Privy Council later, and Tamihere would spend 20 years behind bars. He was released on parole from his life sentence in 2010.
In 2020, he was granted the rare legal lifeline of a Royal Prerogative of Mercy, which allowed his case to be heard by the Court of Appeal in 2023 – only to have his case dismissed again.
This was despite the panel of three judges finding the use of evidence from a discredited jailhouse snitch amounted to a miscarriage of justice.
But last December, the country’s highest court, the Supreme Court, granted him leave – and a final chance to try to clear his name.
The five justices hearing Tamihere’s challenge will focus on whether the Court of Appeal should have exercised its jurisdiction under a particular section of the Crimes Act to quash the double-murder convictions.
Höglin and Paakkonen went missing when they were hiking in dense Coromandel bush in April 1989.
At that time, Tamihere was on the run from police.
Three years earlier, he had raped and threatened a 47-year-old woman in her home for more than six hours.
He pleaded guilty to that offence but had ignored his bail conditions and absconded to the bush, where he was living rough.
He was previously convicted of manslaughter after hitting 23-year-old stripper Mary Barcham on the head with a rifle in 1972, when he was 18.
On April 10, 1989, Tamihere came across the Swedish couple’s white Subaru, “loaded with gear”, and parked near the start of a difficult walking track.
He stole the car, something he has always admitted.
Weeks later, after the Swedes’ disappearance had sparked the largest land-based search in NZ history, Tamihere was linked to the car.
The head of the investigation, Detective Inspector John Hughes, had also been involved in the case against Arthur Allan Thomas, who was found guilty over the Crewe murders in 1970.
Thomas was released after nine years in jail and given nearly $1 million in compensation; a Royal Commission of Inquiry said that detectives had planted fake evidence and police had produced fake confessions from two prisoners.
“It causes us grave concern that very senior police officers were so obviously ready to place credence on such unreliable, self-interested, and, in the case of the first inmate, deluded evidence,” the commission’s report said.
The report did not name any officers in relation to the confessions, nor was there any sign of Hughes’ involvement in the planting of fake evidence.
But Hughes did provide evidence about Thomas being in the Crewe home that was wrong, and which allowed Thomas’ credibility to be attacked under cross-examination.
Hughes died in 2006.
The Post journalist Mike White reported in 2023 that Hughes had bragged to Sir Bob Jones that “I nailed [Tamihere] by making up all the evidence”.
Hughes was also spoken to as part of the Independent Police Conduct Authority (IPCA) investigation in 1996, into Harris’ claims of a $100,000 police offer and help to get parole in exchange for saying Tamihere had confessed to the murders to him.
The IPCA found the allegations of police misconduct had “no validity whatsoever”.