Former suspect in Teresa Cormack murder wins rare legal battle

by Donna Chisholm / 12 October, 2018
Wayne Montaperto says he was hounded by police until Teresa Cormack’s killer was identified after advances in DNA technology. Photo/Mike Rooke

Wayne Montaperto says he was hounded by police until Teresa Cormack’s killer was identified after advances in DNA technology. Photo/Mike Rooke

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For 14 years, Wayne Montaperto was the prime suspect for the 1987 rape and murder of six-year-old Teresa Cormack. He served time for another crime he says he didn’t commit. Now, he’s won a rare intervention in the battle to clear his name. 

When Wayne Gary Montaperto was jailed for three years for child kidnapping 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 inconsistency 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 confident 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 stunning admission made 10 years ago by the jury’s foreman – that he told the other jurors what he’d heard about Montaperto and Cormack – 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 Minister Andrew Little advised her there was “apparently credible evidence” that prejudicial 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 Mansfield – 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 Montaperto’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 surrounding communicating 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 ignoring 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 mentioned 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 affidavit says.

The juror did not know the policemen, but admitted that he passed on the information to the other jurors. The juror told Bonnar that “both he and the jury considered 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.

Dame Patsy Reddy. Photo/Esther Bunning

Dame Patsy Reddy. Photo/Esther Bunning

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 application 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 pursuit of Mr Montaperto as a suspect in the Teresa Cormack inquiry.” He told the Listener that, though he couldn’t prove the information 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 application 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 undoubtedly be admissible.” He said although Bonnar’s affidavit was hearsay, the circumstances “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.”

Teresa Cormack.

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 disappeared on the way to school on June 19, 1987, was not solved until Jules Mikus was arrested in February 2002, and jailed for life the same year. Advances in DNA testing technology had linked him with a genetic profile developed from semen and hairs found on Cormack’s body. Police revealed in August 2001 that the profile exonerated Montaperto. But Montaperto says that, in some ways, he’s been punished even more than Mikus. “He had two or three weeks of publicity; I had 14 years of it. He never got the hounding.”

Police said nearly 1000 men were nominated as possible suspects during their inquiry, and about 20 weren’t able to be cleared until the profile was developed in 2001. Although his name was not widely known to the public – outside Hawke’s Bay, at least – most journalists at the time knew police believed Montaperto was their man but didn’t have the evidence to prove it.

In 1988, when Montaperto was in custody awaiting trial on the kidnapping charges, police told the Hawke’s Bay Herald-Tribune that “a suspect in the eight-month hunt for the killer of … Teresa Cormack is already behind bars”, and said they hoped an arrest for the murder was “just around the corner”.

Montaperto’s identity was so well known locally that, in 1993, he was severely beaten with a spade and a car jack by a Napier man, who told him it was punishment for “Teresa Cormack and Kirsa Jensen”. (Jensen disappeared in 1983 when riding her horse. Neither her killer nor her body has been found.) Montaperto had his hands and legs bound and mouth taped during the sustained attack, which left him hospitalised with brain damage, a fractured skull, broken nose, cheek and jawbones and a broken leg.

About the same time, a senior detective on the case told a women’s magazine that a “39-year-old man who is well known in the Hawke’s Bay district” was about to be arrested and charged with the Cormack murder. “It’s common knowledge around town who the killer is, and recently he was badly assaulted,” the detective said. “I’ve spoken to him several times about the case and we are almost close enough to put him in the dock.” The story said he expected enhanced DNA tests would directly link him to the crime. “It has been so frustrating because all along we have had an offender but not a result – yet.”

Jules Mikus. Photo/NZ Herald/Mark Mitchell

Police questioning

Montaperto says he had no knowledge of the alleged Flaxmere abduction and indecent assault in June 1986, until one year later, when he and his then partner, Linda, were questioned at the Napier police station about his whereabouts in relation to the Cormack murder. “They showed my girlfriend a shock photo … someone covered in blood … more or less saying this is the handiwork of your boyfriend.”

Why was Montaperto in the frame for the Cormack investigators? He had accrued about 20 convictions and was, as is often said in these sorts of cases, no angel. A search warrant for his house and vehicle said he was “known to police for committing offences of an indecent nature with young girls”. He says although he had convictions for indecent exposure, they did not involve children and he put the incidents down to youthful skylarking and to being “an exhibitionist”. His lawyer at the time, Russell Fairbrother, backed him, telling the Listener that Montaperto had no history of child-sex offending.

Montaperto did, however, live about 300m from Cormack’s home and on the route she took to school. A 1963 Holden Premier, similar to a car he drove, was identified as the vehicle involved in the Flaxmere kidnapping. Although Montaperto was a possible suspect because of his car, police noted he didn’t have tattoos, as reported by witnesses, and neither could those witnesses identify him from photographs.

After the Cormack murder, police revived their interest in the unsolved Flaxmere case. Montaperto says police asked him to go to Fairbrother’s office on December 29, 1987,  to give DNA samples, but he refused. He says he didn’t trust what police would do with them. In the meantime, the Flaxmere witnesses were re-interviewed and Montaperto was arrested on the morning of New Year’s Eve.

“The whole police force came to my house that morning. Turned the house upside down,” he says. “They handcuffed me and said you’re under arrest for kidnapping. I thought they were arresting me for the kidnap of Teresa Cormack.”

He says when he arrived at the Napier police station, the head of the Cormack inquiry, Detective Sergeant Brian Schaab told him, “Plead guilty to killing Teresa Cormack and we’ll drop the [Flaxmere] charges.” DNA samples were then taken.

Montaperto spent 10 months in solitary confinement before his trial, a period he describes as “torture”.

“What kept me going was that one day the truth would be known that I wasn’t the offender. I felt good in myself because I knew I wasn’t guilty of that [Cormack] or the kidnapping.”

It wasn’t his first experience of prison – he says he’d been in jail before for car conversion. While he was on remand at Manawatu Prison, he says Schaab, who died last year, arrived with another detective and told him his DNA had been positively matched with samples from Cormack’s body. “They said after they had their tea, they were taking me back to the police station and would charge me with the murder.”

Montaperto says he was so incensed that, on the way to the bathroom, he picked up a gas cylinder that welders had left in a corridor, and threatened to ignite it with a disposable lighter when he returned to the room. “I thought, ‘I’m going to go down for this.’ I had to make a stand. I threatened to blow them up.” He acknowledged he would have possibly killed himself as well, “but I was willing to go to that extent”. A passing warden wrested the cylinder from him and he says he wasn’t charged over the incident.

Montaperto’s former lawyer Russell Fairbrother. Photo/Adrienne Martyn

Montaperto’s former lawyer Russell Fairbrother. Photo/Adrienne Martyn

District pariahs

After he was jailed on the Flaxmere charges, Montaperto says some inmates stuck by him. “They knew I was innocent. They said, ‘That’s not your cup of tea, Monty.’” In 1989, he was refused leave to appeal the convictions. Following his release, he returned to Napier where, he says, the harassment continued, and he and his family became pariahs in the district, turned away from jobs and talked about in the street.

In 2000, Montaperto says he was jailed for 18 months on dangerous driving and other charges after running a couple of police cars off the road in Huntly. “I’d said to the cops, next time you haul me up, I’m going to run you off the road. They didn’t listen to me, they were harassing me, so I did … I’d done something worth going to jail for.”

In 2001, he complained to police about his treatment during the Flaxmere and Cormack inquiries. The then Police Conduct Authority, although upholding some aspects of the complaints, found overall they did not constitute misconduct or neglect of duty. It said the police were entitled to treat Montaperto as a suspect and there was no evidence to support the serious allegations that he had been “fitted up” for the Flaxmere offences or unfairly targeted in the Cormack case.

The authority said it was inevitable that provincial reporters, through their contacts in the community and the police, would discover the focus of police inquiries and it wasn’t possible to tell what officers had actually told reporters. “The investigator was unable to establish that the police had engineered what had occurred.” The authority said the media coverage “bordered on what was unacceptable” but declined to take contempt proceedings.

The Ministry of Justice report prepared for Andrew Little places little weight on the other grounds for Montaperto’s appeal, including the importance of alibi evidence not introduced at trial, among which was that of his cousin, who said Montaperto was with him during the period in which the Flaxmere children were abducted. That day was Montaperto’s birthday, and he and family members said he had been at a garage sale for much of the day before getting pizzas with his cousin. The ministry’s report said it had serious doubts about the credibility of the cousin’s affidavit, which raised more doubts than it resolved.

But Mansfield says the evidence against his client was “never that strong in my view” and his alibi appeared credible. “I do believe the damage was done when the jury was told that information [about Cormack].” He said the alibi evidence was not fully investigated or called at the trial. The ministry’s report said Fairbrother decided not to call the witnesses because he thought he had raised sufficient doubt about the reliability of the prosecution evidence through cross-examination, and a misstep with a defence witness could have undermined that. He thought the witnesses were “unsophisticated and vulnerable to spirited cross-examination”.

Montaperto’s lawyer Ron Mansfield.

Inconvenient alibi

Fairbrother told the Listener he was “100% sure” Montaperto was innocent of the Flaxmere charges. “He is one of the few people that I really believe that about who has been convicted – probably the only person.”

He told the ministry investigators that Montaperto had agreed with the tactical decision not to call the alibi evidence, a view Montaperto disputes. Fairbrother said the alibi was an “amalgam” of evidence, with not one witness able to account for the whole timespan.

The ministry’s report said: “One feature of the potential testimony was that it had the unintended effect of Mr Montaperto being away from his Napier home and in his car at around the relevant period of the alleged offending.”

Mansfield says he’s never met anyone who’s completed a sentence who’s been so determined to clear his name. He believes Montaperto. “He could just complete the sentence and get on with life … he doesn’t need to be as consumed with it as he is.”

Mansfield doesn’t know when the Court of Appeal will consider the case, but says Montaperto’s experience proves once again the need for an independent Criminal Cases Review Commission. Little introduced a bill to Parliament last month to establish the commission. “We’re such a small country and I think we get too insular. If you’re part of the system, you’re also part of protecting the system because you want to believe that it’s working; you don’t like to think it’s not.”

Montaperto has long believed he was framed for the Flaxmere charges – allegations the police have vehemently denied. After publicity about Montaperto’s planned appeal in 2008, Schaab told the media that there was no benefit for police in framing Montaperto for a crime he didn’t commit. “It doesn’t make sense. We wouldn’t have achieved anything in doing that,” he said. But Montaperto says the police actions “need to be looked at”.

“You have good police and bad police. I’m not saying all the police are bad. They had a job to do but they had no right to do what they did to me back in the day. They are answerable for the wrong they’ve done, apart from the good work they do … I’m not out to hang them, or execute them publicly for what they’ve done. I didn’t warrant what they did to me. I was their scapegoat.”

The long fight to clear his name has left him feeling abandoned, with no one listening to him, he says. “If someone is injured, you can hear them if they’re 30m away or 300 yards away, but we’re talking about 30 years here.”

Success at the Court of Appeal would change his life, Montaperto says. “You don’t have to look behind you, do you? You have to live a life of Rambo when you have something like that on you; you have to be on the lookout. You can’t drop your guard. It’s quite a load having something like that on your shoulders. It’s haunted me.”

Ask what a win would mean for him, and he replies with just one word: “Peace.”

This article was first published in the October 13, 2018 issue of the New Zealand Listener.

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