Why was Teina Pora gagged?
This story comes with a warning: there are authorities who would much rather we were not writing this, let alone have you read it.
It traverses areas they believe threaten "the maintenance of the law" in this country. It concerns a man they have gagged. You have probably heard of him, but you have never heard from him, and the state has deemed that as far as it's concerned, that's the way it should be for the rest of his life.
His name is Teina Pora.
In November, his case will make history at the Privy Council, where his legal team, led by Jonathan Krebs and Ingrid Squire, will argue that he has been wrongly convicted of the 1992 rape and murder of Susan Burdett. It is likely to be the last criminal case from New Zealand that the London-based court will hear.
When permission for the appeal was granted in January, Justice Minister Judith Collins said the decision showed the system was working "very well". Really?
This is a system which saw Pora spend 21 years in prison. A system in which his case lay neglected without anyone making an effort to question its myriad flaws until four years ago when private investigator Tim McKinnel took it upon himself to start digging. It's a system McKinnel, Krebs and Squire have battled, often without funding, to get to the Privy Council. A system with a lattice of secrets and stone-walling that have made their task - and the media's - frustrating, to say the least. And a system which has deemed that Pora should be denied one of the most basic human rights - freedom of speech.
The freedom to speak. You could argue that's what got Pora in trouble in the first place. But to say that is to ignore substantial mitigating factors and to abdicate responsibility for a "system" that didn't exactly go out of its way to help him.
Pora was 17 when he was arrested in Otara on unrelated matters - stemming from car thefts - and taken to the Otahuhu police station in the early hours of March 18, 1993. It was almost a year to the day since Susan Burdett had been bludgeoned and raped at her Papatoetoe home. Police were under pressure to find the culprit, and had posted a $20,000 reward for information leading to an arrest.
When Pora arrived at the police station just after 8am, the arresting constable arranged an office phone for the teenager to speak to his lawyer, a man he'd been dealing with over the car-theft issues. In court documents obtained by 3rd Degree, the constable recounts how after a few minutes discussion between Pora and the lawyer over the phone, "[Pora] came to the door and indicated [the lawyer] wished to speak to me.
"It was along the lines of ‘Is Teina in trouble again? I'm pretty busy. I've got better things to do than come down and sit on it. You can talk to him if you want, but he doesn't think he will go on video'," the constable said.
So it was that Pora ended up without legal representation for the next five days, a period which would ruin his life.
Initially, the interview with the constable covered the mundane - stolen cars, in the main. But then a detective sergeant took over and soon the conversations with Pora took an alarming twist.
The detective sergeant said he initially talked to Pora about becoming an informant, but that Pora soon mentioned the unsolved murder of Susan Burdett. What followed were four days of interviews - conversations recorded on video, and which would form the basis of the Crown's case against him. And it's those same conversations that now form one part of the defence case before the Privy Council. Experts for the defence say the statements Pora made are evidence in fact of his innocence rather than his guilt; that they contain so many errors they were unreliable and indicate he was making things up, perhaps in a misguided attempt to pocket the reward.
More than that, the defence experts now say, the video interviews contain vital signs that Pora was not equipped to deal with the questions he was facing. For example, at one point during a discussion about the crime scene, he appeared confused about the left and right hand sides of the bed, prompting the interviewing officer to ask: "Do you know the difference between right and left?" Pora paused before answering: "Oh, it was one of those sides."
There were other signs of his limited capabilities, too: the Court of Appeal would later note that he was unable to read and write. Those limitations can now be explained, the defence says, by a recent diagnosis of foetal alcohol spectrum disorder, a condition which meant Pora was operating at a level far below his 17 years.
The significance of that new evidence will be decided by the Privy Council. As history shows, those so-called confessional statements were used by the Crown in two trials against Pora - in 1994 and 2000. Apart from a few months on bail leading up to the second trial, Pora was locked in prison until he was released on parole last month. He remains a convicted murderer and rapist.
INVESTIGATION 'SERIOUSLY FLAWED'
For most of that 21-year lag, Pora's case went unnoticed. Then, in 2009, McKinnel, a former south Auckland police officer, began to look into it, and was staggered. He soon engaged Krebs, a former Crown prosecutor.
In 2012, Pora's case began to take hold in the public consciousness when it was revealed one of the most respected investigators in south Auckland, former Detective Sergeant Dave Henwood, was convinced Pora was an innocent man. At TV3, we began investigating soon after that, and have now produced five stories outlining how we believe Pora is not a killer - he wasn't even at the Burdett crime scene - and how the police investigation was seriously flawed. We've shown how opportunities to catch the man eventually convicted of Burdett's murder - serial rapist Malcolm Rewa - were missed. In short: dozens of women should never have been raped, Burdett should never have been killed, Teina Pora should never have been jailed. The whole shambolic episode amounts to what we say is the worst miscarriage of justice in New Zealand history.
Naturally enough, after spending so much time investigating the case, we wanted to interview Pora. Usually, prisoners cannot be interviewed, but under certain strict conditions leave is sometimes granted. So in November last year we applied to interview Pora. After having investigated his case for two years, there was so much we wanted to ask him. We applied with the support of Krebs and McKinnel - and, crucially, Pora himself. In a letter submitted with our application he said: "I wish to confirm that I approve of 3rd Degree from TV3 interviewing me. I believe that I have something positive to say about my life, even though I have been in prison for the past 21 years. I believe my faith as a Christian, learning new skills and learning to read and write while in prison gives hope to all."
And so we waited. Behind the scenes the Department of Corrections weighed up the case for and against our application - allowing news and current affairs cameras inside our country's prisons is rare indeed. But we remained hopeful.
Four months passed before we got a decision - but it was worth the wait. "Having taken advice and made my own inquiries, I have approved your application," wrote the department's general manager of corporate services, Vincent Arbuckle, in a letter dated March 12. Of course, there were certain conditions, not least of which was that the interview was to take place after a Parole Board hearing on March 31 - the 13th time Pora was to appear before the board. No problem - either the interview would go ahead inside prison, or, if Pora was granted parole, on the outside. What we didn't anticipate - and neither did his legal team with whom it was never raised before the hearing - was that the board was about to impose a far-reaching condition, one that has implications beyond just this case.
Having decided Pora was ready to be released, the board had this to say: "We have been particularly concerned about external issues and pressures that would fall upon Mr Pora by reason of media exposure and interest," it said in its decision. "He is not to be subjected to that type of exposure if his reintegration is to proceed uneventfully and his risk managed."
The board decided to impose a special condition preventing Pora from "direct or indirect contact" with the media. And here's the kicker - other conditions, such as a requirement to refrain from drinking alcohol, were imposed for five years. The media ban? For life.
Pora and his lawyers consented to the condition - why wouldn't you? Agree to this, and we'll set you free. And consider, too, that board had a report which confirmed his suggestibility and willingness to please those in authority.
The Parole Board's report says its decision was in order to protect Pora. But it seemed a fairly paternalistic way to go about it when those who know Pora best wanted us to talk to him. What was the board really seeking to do by gagging Pora? Isn't it an abuse of its powers?
These are questions that we would have loved to have put to the board. But when we went to
Spokeswoman Justine Turner, asking if we could talk about the issue, a clear response came back: "There is nothing more we can say on this, and the board is not able to be reviewed by it." At this point, we paused. Was the board right in that Pora really didn't want to talk to us?
So we checked with his legal team and the answer came back - yes, there were things he wanted to say.
The fact the interview could take place in prison was a comfort to him and the lawyers. And having it take place before he was released had its benefits, too. After all, the board's condition constrained only Pora, not any journalist who approached him looking for an exclusive. There would be no repercussions at all for the journalist - but for Pora it could mean a return to prison for a breach of parole.
On April 8, Corrections wrote to us saying they were reviewing the decision to approve the interview request in light of the board's decision. Again, we were comfortable.
As we wrote to Arbuckle: "It's clear Corrections came to this decision approving the interview after many months' consideration, including taking into account Mr Pora's view and understanding of the implications. An interview conducted in a controlled environment while Mr Pora is in custody is not something the Parole Board considered at the time it imposed its condition, and it's a very different scenario to the possibilities it was concerned by."
Again, we waited.
This time, it was not worth it. On Monday, April 14, Arbuckle wrote to us saying that he had been working through a plan to ensure Pora was still happy for the interview to proceed. "However, this plan was interrupted late on Friday morning. I received advice, under strict conditions of confidentiality, that . . . Mr Pora was to be released from prison on Monday morning. This is, of course, earlier than expected," he wrote. "Mr Pora was released from prison this morning."
What influenced the Parole Board's decision to release Pora early? Had the approval to interview him played any part? After all, as we were later to discover, the board believed we were "miffed" and sought to influence Corrections in its reconsideration of the interview request.
But what else did the board have in mind when it considered the media ban? And was it following its own policies? We lodged an Official Information Act (OIA) request with the board.
Should we have been surprised by the answer that came back? Probably not - we got nothing. Parts of our request were declined under provisions designed to avoid "prejudice to the maintenance of the law"; others to protect Pora's privacy.
This from a board which had published details of his criminal convictions and, in a decision last year, his sex life while on weekend home leave.
While refusing to hand over any documents, the board said it had imposed the media ban and the other conditions to "ensure that Mr Pora has tools to help him reintegrate and live successfully in the community. He has been in prison a long time, and living in the community will be a big adjustment from the structured life of prison".
Which does not explain why the condition was imposed for life.
We also wondered how the board's decision to impose the ban sat with Corrections. They'd spent months carefully weighing up whether Pora could speak to 3rd Degree, and whether it would harm his interests to do so. Their staff knew the man well - he'd been in their custody for 21 years.
So we lodged another OIA request, this one with Corrections. And what we got back was enlightening. For starters, it confirmed that Pora was keen to talk to us, with Corrections staff saying: "He has something positive to say about his life." The manager of Auckland Prison, where Pora was held, supported the interview, too, noting that it would have no impact on the "business-as-usual" routine of the prison.
Another senior staff member said there was an increased public interest in Pora's case. "Being interviewed and having that interview broadcast may go some way to settling the public-interest pressure," the manager wrote.
"Not being able to present his side of the story means that his story will have to be told second-hand through his lawyer. The interview is important to Mr Pora as he has always maintained his innocence . . . The level of public and media interest has pushed TV3 to interview Mr Pora to appease the amount of public scrutiny and to highlight his case." Arbuckle had taken all those matters into account when he approved the application to interview Pora, a decision which was neutered just over a month later upon Pora's early release.
Teina Pora may be free, but he was not free to speak. It turns out as a prisoner he had more rights - in terms of freedom of expression - than he does living on the outside.
BILL OF RIGHTS OVER-RIDDEN
So what are the implications and why does it matter that Pora has been silenced? Consider first, that the Bill of Rights has been over-ridden. As New Zealanders, "everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form".
It's a right enshrined for very good reason. And before you say, "Oh well, he's a convicted murderer - what rights do prisoners have anyway?", read what the House of Lords, no less, has to say about the matter.
In 1999, Lord Steyn delivered a decision before the House allowing an appeal from two inmates who wanted to be interviewed. Of the right to freedom of expression, he said that "in a democracy [it] is the primary right: without it an effective rule of law is not possible". It was the lifeblood of democracy and also acted "as a brake on the abuse of power by public officials" and "facilitates the exposure of errors in the governance and administration of justice".
And here's where the case really sheets home to Pora - the two prisoners whose rights Lord Steyn upheld were men who said they had been wrongly convicted of murder. "They wish to challenge the safety of their convictions," he said. "In principle it is not easy to conceive of a more important function which free speech might fulfil."
As it stands, Pora will be denied that - at least while he remains on parole. And the only way parole will end is if the Privy Council upholds his appeal and his convictions are quashed. But, by then, his desire to speak out in the way that the House of Lords protected in the British case may have passed.
And until the Privy Council rules - at least - we are unable even to report how Pora is doing outside of prison. In fact, we cannot even ask - no direct or indirect contact is allowed.
To the legions of people who rallied to support him, the silence from him must seem odd. After one of our stories, we were contacted by Illicit Streetwear co-founder Steve Hodge. He had been inspired to do something for Pora and quickly designed a T-shirt. "Free Teina" it read, and it sold like hotcakes. In turn, Hodge's work inspired a group of recording artists to get together and produce a music video backing Pora. From obscurity, he had become the centre of a popular groundswell.
If he could, we're sure he'd want to repeat the message he gave in a letter to 3rd Degree 18 months ago. So, here, in his own words, is Teina Pora:
As use no [As youse know] that I've been inside for 20 year, for crime that I've never done. All I want is to be a free man. And thank God for give me the opperty to live life again and the people who believe in me. Thank use All - Teina Pora.
Producer Eugene Bingham and reporter Paula Penfold have done five stories about the Teina Pora case. For more coverage, visit 3rd Degree's website.
Sunday Star Times