Cops influenced victim in sex case, hid details from court, lied to investigators, wrongful conviction body says

Wednesday, 31 January 2024

The Criminal Cases Review Commission has concluded police acted inappropriately, concealed crucial evidence, and gave false evidence under oath.

A police officer influenced a victim into identifying a suspect, then officers deliberately hid what had happened from judges and courts, a wrongful conviction body has found.

And when investigators discovered what they’d done, police officers lied to them while under oath, according to the Criminal Cases Review Commission (CCRC).

The CCRC, established to examine potential miscarriages of justice, has this morning referred the case of a man who has sought name suppression back to the High Court for a new appeal.

The man was convicted in 2015 of committing two indecent acts against the same woman, with the central element of the case being her identification of the man.

She was twice shown photo montages in order to identify the offender.

She didn’t identify the man after viewing the first photo montage, which included a picture of him.

But following this, a detective indicated to her who the suspect was.

Colin Carruthers, KC, chief commissioner of the Criminal Cases Review Commission.

At a second identification process, the woman identified the man from another photo board.

Details of these events were recorded in a report prepared for the prosecutor in the case.

However, police removed reference to the officer suggesting to the victim who the suspect was, the CCRC says.

This meant the trial judge and the appeal courts which later considered the case were unaware of what had occurred and accepted the woman’s identification - despite the man’s lawyers raising concerns about the process.

After a two-year investigation, the CCRC has cited police misconduct and unreliable evidence as reasons the case should be looked at again, saying the safety of the conviction has been undermined by the evidence they have discovered.

Auckland’s High Court, where the case has been referred back to for appeal.

CCRC chief commissioner Colin Carruthers, KC, said police indicating to the victim who the suspect was tainted her evidence and it should not have been admitted at the man’s trial.

Moreover, Carruthers said if appeal courts had known about this, “it would have had a material impact”.

Carruthers also said the commission was satisfied the critical passage in the police report relating to these events was intentionally removed by police.

Damningly, Carruthers said officers “gave false evidence” under oath while being interviewed by the commission about what had occurred.

He stressed the two years taken to investigate the case was necessary, and resulted in discovery of new documents that should have been considered by the courts in 2015.

Mikaere Oketopa, who was previously known as Michael October, was convicted of murdering Anne-Maree Ellens in 1994 but has always insisted he is innocent. His case was referred back to the Court of Appeal in December.

“We have an obligation to make sure we do justice to the justice system,” he told The Post.

“We do take time to make sure we get things right, and we do investigate things properly - which the police did not.”

The case comes just weeks after the CCRC referred a high-profile murder conviction back to the Court of Appeal.

Citing numerous failings with the police investigation into Mikaere Oketopa, convicted of raping and murdering Anne-Maree Ellens in Christchurch in 1994, the CCRC said it was “improbable” Oketopa (formerly known as Michael October) was present at the crime.

It said detectives adopted a “guilt-presumptive mindset”, and questioned the integrity of the police investigation and “the absence of crucial documents which were either not created as they should have been, or removed from the police file.”

Since it was established in July 2020, the CCRC has been swamped with more than 420 applications from people claiming they have been wrongfully convicted.

Today’s referral is the third case the CCRC has decided is in the interests of justice for the courts to reconsider.

However, it is investigating another 28 cases, some of which it says are likely to be referred back to the appeal courts.

In response to the referral, Detective Superintendent David Lynch said in a statement:

“Police have been liaising with the CCRC in respect of this case for some time and have been awaiting material from the CCRC before assessing what internal processes need consideration, such as an IPCA (Independent Police Conduct Authority) referral.

“That material has recently been provided by the CCRC and is under consideration as to any next steps required.

“Police acknowledges the decision to refer, but while the case is to be considered by the High Court it is not appropriate to comment further at this time.”