OCTOBER 13 2018 LISTENER 21
W
hen Wayne Gary
Montaperto was
jailed for three years
for child kidnap-
ping and indecency,
there were plenty of
reasons for unease
about the verdicts of
the jury that found him guilty. Key among
them was the uncertainty and inconsist-
ency of witnesses who testified he was the
man who allegedly abducted four Flaxmere
children, drove them to a river, plied them
with alcohol and performed an indecent act
on one. Then there was the potential alibi
evidence that was never called.
But the elephant in the jury room at the
High Court at Wellington during that trial,
in August 1988, was child murder victim
Teresa Cormack. The hearing had been
shifted from Napier because the word was
already out in Hawke’s Bay: police were con-
fident that Montaperto was the man who
raped and killed her.
The jury was never meant to know this,
but they did. Now, 30 years later, a stun-
ning admission made 10 years ago by the
jury’s foreman – that he told the other jurors
what he’d heard about Montaperto and Cor-
mack – has led to a successful application to
the Governor-General to exercise the royal
prerogative of mercy, a last-ditch remedy
for people who’ve exhausted other avenues
of appeal against a conviction. Dame Patsy
Reddy has referred the case back to the
Court of Appeal because of the potential
for a miscarriage of justice, after Justice Min-
ister Andrew Little advised her there was
“apparently credible evidence” that preju-
dicial information about Montaperto was
passed to the jurors.
It’s a big win for Montaperto, 64, a Napier
fitter and turner, and his lawyer, Ron Mans-
field – less than 10% of such applications are
referred back to court – but it has been a long
time coming. The application was filed in
2014, six years after the jury foreman came
forward in response to a newspaper article
about Montaperto’s case. The application
said the investigation took “considerable
time” because of the age of the file and Mon-
taperto’s inability to pay.
In an email to Mansfield in June 2008, the
juror wrote: “I may have some information
with this appeal that may or may not be
useful ... The reason for my contacting you
is to ensure that all facts and influences of
the case are put forward.”
There are strict rules surroundingcommunicating with jurors – it’s considered
contempt of court to approach them about
their deliberations – so Mansfield referred
the foreman to an independent lawyer,
Steve Bonnar QC, who interviewed him
and later swore an affidavit that formed part
of the application. After agreeing to do the
same, the juror later changed his mind. It’s
possible the juror himself could have been
considered in contempt of court for ignor-
ing the judge’s warnings not to consider
anything he’d heard about the case outside
the courtroom.
Bonnar’s affidavit about their discussion,
sworn in 2012, said the foreman told him
a man he used to work with had men-
tioned during the trial that Montaperto
was a prime suspect in the Teresa Cormack
murder. “That man had two brothers who
were policemen in Hawke’s Bay,” the affi-
davit says.
The juror did not know the policemen,
but admitted that he passed on the infor-
mation to the other jurors. The juror told
Bonnar that “both he and the jury consid-ered the information to be significant”, and
that he thought the jury was influenced by
it and used it against Montaperto – even
though it was not before the court.
Montaperto believes the information was
passed to the juror deliberately, and was
part of an ongoing police campaign
of harassment and intimidation
against him. Mansfield’s applica-
tion said the evidence appeared
to show that police intentionally
interfered with the trial by giving
information to someone they
knew would pass it on to jurors.
“This would be consistent with
the police’s aggressive pur-
suit of Mr Montaperto as
a suspect in the Teresa
Cormack inquiry.”
He told the Listener
that, though he
couldn’t prove theinformation was deliberately planted by the
police, “my view is that it seems just too
good to be coincidental. It seemed as if [the
informant] knew what they were doing.”
A Ministry of Justice report on the appli-
cation rejected that, saying the juror did not
know the informant’s policemen brothers,
even though the informant knew he was on
the jury. “We do not consider the evidence
provided to us supports the submission that
the police deliberately interfered with the
jury.”
The fact the crucial evidence comes from
a juror raises some thorny issues for the
Court of Appeal. The Evidence Act generally
prohibits testimony being given about jury
deliberations, and the fact the juror declined
to swear an affidavit himself also means the
only evidence of what happened is from
Bonnar, which technically is hearsay.
The Justice Ministry sought advice on
these matters from Rodney Hansen QC,
a former High Court judge. He said that
although evidence of jury deliberations was
inadmissible, there were exceptions. “This
is something that is extrinsic to the jury’s
deliberations and would therefore undoubt-
edly be admissible.” He said although
Bonnar’s affidavit was hearsay, the circum-
stances “provide reasonable assurance that
the statement is reliable”. The affidavit
would be sufficient for an application to
the court for leave to bring fresh evidence
in the case.
The ministry’s report, prepared by chief
legal counsel Jeff Orr, said that despite the
judge in Montaperto’s trial assessing the
Crown case as strong, “it is clear there were
deficiencies in the identification evidence,
which meant that the Crown case was less
than overwhelming. In our view, there is
a very strong possibility that the jury
would have been influenced by
the highly prejudicial information
that Mr Montaperto was a prime
suspect in another serious child
abduction and murder case.”HOUNDED BY ASSOCIATION
The mystery of who abducted,
raped and killed Napier six-year-old
Teresa Cormack, whose body
was found in a shallow grave
on Whirinaki Bluff beach
eight days after she disap-
peared on the way to school
on June 19, 1987, was not
solved until Jules Mikus
was arrested in February“In our view, there is a
very strong possibility
that the [Flaxmere]
jury would have been
influenced by the highly
prejudicial information.”
Dame Patsy Reddy.