'Serious concerns' about 'crucial' missing information - 2015 indecent acts case to be reheard in court

The case is the third to be referred back to the courts by the watchdog since its establishment in 2020.
The case is the third to be referred back to the courts by the watchdog since its establishment in 2020. Photo credit: Newshub

By Soumya Bhamidipati for RNZ

A person convicted of committing indecent acts in 2015 will have their case reheard, after a two-year investigation has revealed important evidence was intentionally removed from the police file.

The watchdog investigating potential miscarriages of justice said it had "serious concerns" about the "crucial" missing information. The Criminal Cases Review Commission | Te Kāhui has decided not to reveal the person's identity or details, saying they may make a bid for name suppression when the case returns to the High Court in Auckland.

The person was convicted in 2015 of committing indecent acts, in two separate instances against the same victim.

The trial hinged on identification evidence, but the investigation by Te Kāhui found information that undermined this evidence - a note outlining that the victim had received an indication of who the police suspected during the first photo identification procedure - was intentionally removed from a police report before it was given to prosecutors.

The commission said the material was removed before the person's first appearance in court on these charges, and after defence lawyers had told police of their concerns about identification procedures.

Chief Commissioner Colin Carruthers KC said the investigation highlighted problems with the reliability of evidence used to identify the person and concerns about police misconduct.

"The investigation has concluded that, following the first formal identification procedure the victim was given an indication as to who the suspect was," Carruthers said.

"The Commission considers this tainted the second formal identification procedure, and the evidence should not have been admitted at trial.

"The Commission also considers that the actions of police officers involved in this case have undermined the safety of the applicant's convictions."

The Commission said it was likely the evidence excluded from the police report would have had a material impact during the person's appeals. It concluded a miscarriage of justice had occurred and that it would be in the interests of justice for a court to reconsider the case.

Third miscarriage of justice referred back to courts

The case is the third to be referred back to the courts by the watchdog since its establishment in 2020.

Te Kāhui referred its second case to the Court of Appeal last month, after finding problems with the investigation and trial of Mikaere Oketopa, formerly Michael October.

He was convicted in 1995 for the rape and murder of Anne-Maree Ellens the year before.

However, the commission said new evidence indicated Oketopa's confession was likely false and it was unlikely he was at the scene of the crime. It also highlighted concerns about the integrity of the police investigation and whether identification evidence was reliable.

Earlier this month, chief executive Parekawhia McLean said the commission was likely to launch its first inquiry into systemic issues relating to miscarriages of justice within the next six months.

While McLean could not reveal the focus of the inquiry, she said the commission's second and third referrals both related to the theme.

"The Mr Oketopa referral and the one to come over the next couple of weeks, there is a theme within both of those that will be pretty evident to you when you see the terms of reference for our systemic inquiry," McLean said.