David Tamihere's lawyers are appealing an earlier Court of Appeal ruling that found a miscarriage of justice, but upheld his convictions. Photo: RNZ
A lawyer for convicted double murderer David Tamihere has asked if his trial would have turned out differently if a fundamental error had not occurred.
Tamihere was convicted in December 1990 of murdering Swedish tourists Urban Höglin and Heidi Paakkonen.
His lawyers are appealing an earlier Court of Appeal ruling that found a miscarriage of justice but upheld his convictions.
In the High Court at Auckland on Tuesday morning, Tamihere's lawyer James Carruthers took the panel of Supreme Court judges through five other cases which featured an unfair trial or fundamental error - something they argued featured in Tamihere's case.
He quoted a case which said questions needed to be asked on what course a trial would have taken, if errors had not been made.
"It's interesting to ask here what the course of the trial might have been like had it not started off in completely the wrong direction," Carruthers said.
"And as we can see from the Crown's amended case, it would have taken on an entirely different complexion."
He was asked by Justice Sir Joe Williams if taking that approach was right.
"What I struggle with in these, is that it's just another way of putting that the proposition that it could've made a difference, which is to say the proviso has no place here," he said.
"It comes to the same point doesn't it? Because your putting counter-factuals to suggest that it might've made a difference, but if it might have made a difference then the proviso has no place."
On Monday, Tamihere's long-time lawyer Murray Gibson laid out their case for appeal.
"Multiple breaches of fair trial rights relating to the evidence of principal Crown witnesses, fundamental error in that the Crown no longer subscribes to the case advanced at trial or evidence on which the jury were invited to find the defendant culpable of the homicide," he said.
"Thirdly, relates to the constitutional role of the jury."
Tamihere served more than 20 years of a life sentence in prison before being released on parole in 2010. He has always denied even meeting the pair and there have been lingering questions around the convictions.
In 2020 the then-Governor-General, on advice from former Justice Minister Andrew Little, granted Tamihere a rare Royal Prerogative of Mercy.
The case was referred back to the Court of Appeal to rule on whether there may have been a miscarriage of justice.
That court, in July last year, found there was - but upheld Tamihere's murder convictions because there was evidence beyond reasonable doubt he murdered the tourists.
This, in turn, was appealed to the Supreme Court which is hearing the case now.
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