Crown wants third trial in Gone Fishing murder case; starts new DNA testing

Sunday, 11 August 2024

Thirty-five years after Deane Fuller-Sandys disappeared, the Crown has finally admitted Gail Maney and Stephen Stone were wrongfully convicted of his murder. But, as Mike White reveals, it wants to retry the pair yet again, and has begun new DNA testing.

When 21-year-old Auckland tyre-fitter Deane Fuller-Sandys disappeared in August 1989, it seemed straightforward: he’d been swept off rocks while fishing at Whatipū Beach.

But a decade later, 33-year-old mother Gail Maney, and strip club bouncer Stephen Stone, were convicted of Fuller-Sandys’ murder.

Stone was also found guilty of raping and killing sex worker Leah Stephens, in what police said was a connected crime.

Maney appealed, but was found guilty again at a second trial, and spent 16 years in prison.

Stone’s appeal was rejected without a hearing, and he has now been in prison for 26 years.

After years of trying to clear their names, it was admitted last month that police hadn’t disclosed two vital documents at any time during their trials or appeals.

In July, the Crown accepted a miscarriage of justice had occurred, and recommended the Court of Appeal quash their convictions.

However, as the controversial case, which was featured in the Stuff/RNZ podcast Gone Fishing, heads back to court, the Sunday Star-Times can reveal the Crown wants to put Maney and Stone back on trial again.

It’s an extraordinary and rare step, but police are already conducting new DNA testing to bolster their case.

But can you really get the truth after all these years?

And with dead witnesses, missing evidence, foggy memories and ever-changing stories, what chance is there of justice being done?

The theory police eventually settled on was that Maney thought Fuller-Sandys had stolen marijuana and leather clothes from her flat in Larnoch Rd, Auckland, and got Stone to kill him.

But rather than do this covertly, Stone did it in front of eight other people in the Larnoch Rd flat’s garage.

Fearing one of those witnesses, 20-year-old Leah Stephens, would talk, Stone then raped and murdered her five days later.

Two others - Gail Maney’s brother Colin, and Mark Henriksen - were found guilty of being accessories after the fact.

But four others who had supposedly witnessed Fuller-Sandy’s execution at the suburban garage were given immunity, and testified for the Crown.

Initially, their stories were wildly different, including different locations for the murder, different methods and varying motives.

One witness only settled on his final account after nine previous statements to police.

But by the time of trial, the eyewitnesses’ evidence had largely coalesced into a coherent narrative, albeit one that stretched credulity in many respects.

Supposedly, 19-year-old Stone carried out a hit for a friend for no apparent reward, in front of eight others, during the daytime in West Auckland, with multiple shots being fired, yet nobody noticed or called police.

There was clear evidence Fuller-Sandys had planned to go fishing that evening, and that’s what he told his parents as he drove away from their home, with his fishing gear.

His car was found at Whatipū Beach, part of a stretch of coastline notorious for sweeping fishers to their death.

Fuller-Sandys’ body was never found.

Stephens disappeared from central Auckland soon after, and her body was discovered three years later by a dog walker, in a shallow grave near the Muriwai Golf Club.

However, the two cases weren’t connected until 1996, when rumours began that Stone may have been involved in Stephens’ death.

Led by Detective Mark Franklin, investigators eventually convinced four people who have name suppression to give evidence saying Stone killed Fuller-Sandys for Maney, and then murdered Stephens to stop her squealing about what she’d seen.

But it’s Franklin’s actions in not disclosing two crucial documents that have led to the Crown now admitting a miscarriage of justice has clearly occurred.

Both documents involve Franklin’s dealings with the four witnesses given immunity, which, if known about, would have given Maney and Stone’s lawyers strong arguments to undermine the evidence these witnesses gave at trial.

One document was disclosed in 2021, the other only in May this year.

And they suggest police coerced some of the four witnesses to alter their evidence to fit the police narrative - as has always been alleged by Maney and Stone, who say the witnesses were manipulated by police.

On Tuesday, in Wellington’s Court of Appeal, the Crown will acknowledge that police failed to disclose vital information, that “justice substantially miscarried”, and recommend the convictions of all four people are quashed.

But it’s what happens next that will be the subject of most of the two-day hearing.

The Crown says it won’t seek to retry Colin Maney or Mark Henriksen because it is against the “interests of justice”, as their culpability was lower, and both have served their sentences.

However, it insists it is in the same interests of justice to retry Stone and Gail Maney, despite it being 35 years since Fuller-Sandys and Stephens went missing, and 25 years after Stone and Maney were convicted.

It says there is still relevant testimony from some of the four witnesses who gave evidence about seeing the killing in the garage, and other evidence that corroborates these accounts.

Moreover, Stone confessed to the murders in the years after he was jailed, the Crown claims.

In addition, police are carrying out further inquiries, including retesting 1998 samples from the Larnoch Rd garage and bedroom (where Stephens was supposedly raped and murdered) using updated DNA techniques.

The Crown argues it should be a jury that decides whether witnesses are credible, not the Court of Appeal, and a new trial is needed.

Therefore, it wants the Court of Appeal to order a retrial, and leave it up to Auckland’s Crown solicitor to decide whether to proceed, based on all the remaining and new evidence.

But lawyers for Maney and Stone are scathing of the Crown wanting to retry the pair, saying the case against them has collapsed, and they should be acquitted, with no retrial.

They point out that of the four eyewitnesses who claimed Stone and Maney were responsible for the murders, two have recanted their evidence, saying they were pressured into false statements by police.

Of those two, one died in 2022.

The other has signed two affidavits saying she gave false evidence - and even the Crown has accepted this can be considered truthful.

A third eyewitness was visited overseas by a New Zealand detective in June.

When the officer introduced himself, the eyewitness told him: “You can f… off back to New Zealand, you c…,” while continually raising his middle finger at the detective.

He added that police had “f…ed his life”, and the detective left.

Given his hostility, Maney and Stone’s lawyers say it’s unlikely the man could be relied upon to give fair evidence at a new trial.

The fourth eyewitness is the only one who could give evidence, they say, but maintain his evidence was clearly manufactured with the assistance of police.

In addition, they say police and the Crown have refused to provide this witness’ criminal history, redacting seven pages from it, so it’s unclear what convictions he has for dishonesty offences.

Regarding Stone’s supposed confessions while in prison, his lawyers say these were made in an attempt to get out of jail.

To get on prison courses necessary to be considered for parole, inmates must accept responsibility for their crimes.

Stone says he did this solely in an effort to be freed, but since 2011, has continued to deny he killed Fuller-Sandys or Stephens.

His position appears to be supported by the Parole Board, which said in 2012 that Stone’s admissions were “no more than a cynical ploy to garner support for his progress towards release. He told people what he thought they wanted to hear.”

Maney and Stone’s lawyers argue to have a third trial would be unfair after so long, and bring the integrity of the justice system into disrepute.

They note that allowing the Crown solicitor to decide whether another trial should occur, would cause further delays, and are calling for the Court of Appeal to draw a line and end an injustice that should never have happened, and has gone on far too long.

Having a third trial is extremely rare in New Zealand.

John Barlow was convicted in 1995 of murdering father and son Eugene and Gene Thomas after two previous juries were unable to reach a verdict.

And in 2019, Malcolm Rewa was found guilty of murdering Susan Burdett in 1992, at his third trial.

Auckland University associate law professor Scott Optican says there is no time limit on when you can bring a criminal case.

“But 35 years is a long time. It would be really pushing the outside of the envelope of historical New Zealand criminal cases.”

There are many things the Court of Appeal judges will take into account, when deciding if Maney and Stone should face another trial, Optican says: is the case too old; is evidence too stale, or missing; have key witnesses’ memories faded; is everything available to the defence to ensure a fair trial; have the accused already served their sentences?

The judges would have to consider giving certainty and finality, alongside pragmatism, prudence and practicality, Optican says.

“These are discretionary decisions, weighing up any one of a number of factors.

“But whether you’re going to get justice on it - who knows.”

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