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Focus on
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McCushla (Krishla)
Priscilla Fuataha, then aged 14, had one. Tania Mayze Vini, 14, bought two,
lending one to her childhood friend Teangarua (Lucy) Akatere, 15. The girls were not
wearing their sweatshirts on Friday, August 12, 1999, a day that was to
change their lives forever. But just owning them
turned out to be bad enough. At 8.25 am that day, a
16-year-old sixth-form student was having a soft drink at Three Kings Plaza,
Auckland, on her way to school when five girls set upon her. She was thumped and
kicked and her head banged against a tree stump. She was dragged to a toilet
block and robbed of $10. Each time the girl said
she had no more money to give, she was sliced with a pair of scissors. She
suffered a cut to her eyebrow, four slashes to her thigh and one to her
stomach. Four of her attackers,
she told police, were wearing a "yellow, fleecy hooded top with 'USA' written
in black on the back". The sweatshirts became
significant items of circumstantial evidence that were used to tie Vini,
Fuataha and Akatere to the crime and ultimately help to jail them. The teenagers were sent
to prison last year for what a judge described as a sadistic slashing and
they spent seven months in Mt Eden Women's Prison. Yesterday, the Court of
Appeal, sitting in Auckland, quashed the joint conviction of Akatere, now 17,
Vini, 17, and Fuataha, 16, for aggravated robbery. Justices Bruce Robertson,
Thomas Gault and Peter Salmon overturned the conviction - a move the police
did not oppose - and told the three that they had the court's sympathy for
the injustice that had wrongly sent them to prison. Justice Gault said the
"investigation and trial system failed in this case". The wrongful
conviction "raises questions of conduct by the police which is a serious
matter and must be properly investigated". The girls' appeal owed
much to the painstaking work of private investigator Bryan Rowe and the
efforts of their Court of Appeal lawyer, Gary Gotlieb, he said. So how could the whole
system fail, leaving three innocent girls in prison? It began one week after
the attack when two schoolgirls said they saw the three girls and another
girl, Witness X (her name is suppressed), at the Plaza on the morning of the
crime. The two were sure it
was that morning because they had gone to school early to work on a special
art project. From this information
Balmoral police, led by the officer in charge of the case, former New Zealand
test cricket opening batsman Detective Constable Trevor Franklin, separately
interviewed the three girls and Witness X. All denied their involvement. But Witness X, who at
13 was too young to be charged, later confessed her involvement and said the
other girls were also involved. Searches of their homes
uncovered the sweatshirts along with a backpack, fitting the description
given by the victim, which contained a pair of scissors. The girls were arrested
and, following a depositions hearing and a jury trial in the High Court at
Auckland, were sentenced by Justice Tony Randerson last September. The youngest of the
trio, Fuataha, who had just turned 15 and was said to have wielded the
weapon, received two years' jail, the other two 18 months. Vini's father, Vini
Kavi, knew his daughter was innocent. He was unable to work for three months
because he was too distraught and the family had to rely on the income of his
wife, Tania's mother Kaiei Timi, a part-time cleaner. "I was so upset I
didn't know what to do. I knew my girl never committed that crime," Mr
Kavi said. He engaged a private
investigator, who discovered nothing of significance and charged him $4000,
but eventually put him on to Mr Gotlieb. "I took one look
at the case and I called in Bryan Rowe," Mr Gotlieb said. As Mr Rowe, a former
police superintendent, pored over the evidence he uncovered a series of
police blunders and basic oversights that he describes as bordering on
criminal offences. "There are things
I have seen in this file that cause me to believe that at least the police
should be making inquiries to see if criminal offences have been committed by
any police officer." The complainant, whose
identity is covered by a court suppression order, said she had been attacked by
five girls. Witness X told the police, and gave evidence twice in court, that
it was only four attackers - herself and the three girls. One of the more damning
examples of police failure came via what should have been their trump card -
the detailed descriptions given by the victim. She described the
yellow sweatshirts but also gave detailed descriptions of her attackers and
the other clothes and accessories they were wearing. She described five
Polynesian girls, aged 16 to 18, between 1.68m (5ft 6in) and 1.83m (6ft) tall
and ranging in build from "fat" to "skinny". But Witness
X is short - 1.5m (4ft 11in) - and Fuataha, the tallest, is only 1.62m (5ft
4in). The victim also said one of her attackers had a nose stud, yet none of
the arrested girls did. In their statements of
denial both Akatere and Vini told the police about a telephone call Akatere
made to Vini at 7.43 am on the day of the offence. The police did not check
Telecom records, which proved that the call did take place. Mr Rowe, who did
obtain confirmation from Telecom, said the call proved the pair could not
have physically made it to the Plaza by 8.25 am. Likewise, the police
failed to investigate Fuataha's account that she was at home at the time of
the offence. If they had questioned family members they would have found she
was telling the truth. The two schoolgirl
witnesses who said they saw the four girls at the Plaza that morning were
never called to give evidence, nor were statements of their evidence shown or
supplied to the defence. Evidence emerged that
they were mistaken. The group of four were together at the Plaza but not on
the day of the attack - it was the previous Friday. There was more
conflicting evidence over Vini's backpack, which was identified by the
victim. In his job sheet dated August 23, 1999, Detective Constable Franklin
said the victim came into Balmoral station and identified a bag. She said she
knew it was the bag one of the girls was carrying because "I remember
the adidas logo and the graffiti written on it". But when she was shown
the scissors and sunglasses from the bag, she said they were not the scissors
used in the attack. Although the bag became
a court exhibit the scissors were not referred to again. The day after Witness X
made her statement to police she admitted in the presence of her church youth
group leader, Malcolm Peak, that she had lied to the police about her
involvement and that of the girls. Mr Peak went to
Balmoral station and told Detective Constable Franklin what Witness X had
said. For his troubles Mr
Peak was warned not to speak to police witnesses and told he could face up to
seven years in prison for interfering with a police witness. One of the saddest
ironies of the case was that both Akatere and the victim knew each other by
sight, because they went to the same church. In her statement to
police, made just after the attack, the victim said: "I don't know the
girls who assaulted me and I have never seen them before." Because the victim did
not give evidence at the depositions hearing she was unaware that Akatere was
one of the accused. When she saw Akatere at
the High Court trial she recognised her from church but, as the Crown Law's
memorandum stated, "she did not think the appellants were her attackers.
She did not say this at trial because she was not asked". Supporting testimony
for the Crown came from Billy Junior Lukupa, 19, a contract labourer from
Glen Innes, who said he had seen Witness X, Vini and Fuataha at the Plaza on
the morning of the attack. Mr Rowe said Lukupa had
never met the three. In his statement to police Lukupa said Fuataha had a
nose ring. Yet none of the girls or Witness X have had their noses pierced -
a fact that Mr Rowe said the police must have known. In Lukupa's brief a nose
ring was never mentioned. Mr Rowe said it was
Detective Constable Franklin's legal duty to ensure that Lukupa was a safe
witness and the discrepancies that emerged in his evidence indicated this was
not the case. Justice Gault said much
of this evidence was not fresh "in that it could have been obtained with
reasonable diligence prior to trial" but the main reason the conviction
was unsafe was the retraction by Witness X, the Crown's principal witness,
and Lukupa. Early this year Mr Rowe
interviewed Witness X, who formally admitted for the first time that she had
lied. She told him she was pressured by police into confessing. On April 2, he took her
to Mt Eden Women's Prison where she made a tearful apology to the girls. Armed with her
affidavit, Mr Gotlieb lodged an appeal on April 10 and Auckland City district
commander Superintendent Howard Broad agreed to a reinvestigation. The girls were freed on
bail on April 12. A second investigation
into police handling of the case is being carried out by Inspector Rob
Marshall at Auckland Central police station. He refused to comment until the
investigation is completed. Detective Constable
Trevor Franklin, now stationed at Ponsonby, said he could not comment. |
