'Was it you?': Key witness in deadly prison beating denies giving evidence to save own skin

The key witness who claimed to see Ross Appelgren murder Darcy Te Hira in Mt Eden prison in 1985 was told in his first meeting with the lead detective that he was considered either a witness or a suspect.

RNZ podcast Nark has today revealed the account of the witness, a Mt Eden inmate, describing his meeting on January 10, 1985, with Detective Chief Inspector Peter Jenkinson.

It was ultimately the eye-witness account of that inmate - who the podcast has called Ernie because he has permanent name suppression - which got Appelgren convicted. Appelgren's legal team view the revelation as "deeply troubling".

Until his death in January 2013, Appelgren maintained he was innocent, saying he wasn't in the kitchen when Te Hira was attacked. As revealed in Nark, Appelgren got his case back to the Court of Appeal in 1994 but was unable to progress it to a hearing while he was alive. Now his widow, Julie, has started a legal effort to posthumously clear her husband's name, engaging lawyers Nick Chisnall KC, Kerry Cook, and well-known investigator Tim McKinnel.

The meeting between Jenkinson and Ernie took place at the Auckland Central police station, just four days after Te Hira's murder.

According to Ernie's notes, Jenkinson told him: "We think you know what we want and it could only of been two people who did it, as only two people were there at the time Ross and you, and we don't believe it was you so you must of seen who it was, or was it you?".

No official police record of the meeting between Jenkinson and Ernie was made, contrary to police regulations in force at the time. Jenkinson later explained that the meeting was "off-the-record" at Ernie's request.

Mckinnel says he's learned from wrongful conviction cases over the years that "there is a tendency to have off-the-record conversations", but he considers the practice "unethical".

A former police officer who worked with Jenkinson in the 80s and considered him a good cop told the podcast's host, Mike Wesley-Smith it is "unusual that there would not be a written record of all the interactions the police had with an essential witness like [Ernie], even if [Ernie] had insisted on a discussion being off the record".

"Police investigating a homicide would normally record everything, although that record might be held separately from the main investigation file".

Ernie's written recollection of his meeting with Jenkinson, dated 10 June 1985, was held in the police file but - crucially - never disclosed to Appelgren, his lawyers or the two juries that convicted him. It was only obtained by Appelgren in the mid-1990s and is being revealed for the first time in today's episode of the RNZ podcast Nark.

Wesley-Smith has also uncovered a September 1985 report authored by Jenkinson, which supports Ernie's claim that he was initially considered a suspect. Jenkinson wrote, "From reconstruction, it was obvious that Ernie, a fraud offender, was either a witness or the offender in this homicide. The other possibility was Ross Gary Appelgren."

In his interview for Nark, Ernie was asked if he remembered Jenkinson telling him he considered either he or Appelgren was the killer. Ernie replied "Oh, [Jenkinson] probably did". Ernie, though, continued to deny any involvement in Te Hira's murder. "I'm not a violent person… it's not in my DNA".

Former lawyer Paddy O'Driscoll, who represented Ernie during his initial contact with detectives, said he didn't recall Ernie raising any concerns with him about being considered a suspect. O'Driscoll, now retired, told Nark "[Ernie] knew he wasn't going down on a murder charge". And, apart from detectives' early suspicion, there is no evidence to suggest Ernie was involved in Te Hira's murder.

Nonetheless, investigator Tim McKinnel says Ernie's account is "deeply troubling", as it shows Ernie was incentivised to tell police he was a witness, to avoid being considered a suspect.

"It's hugely problematic, highly risky, and I would argue unethical to put that to somebody. You're inviting him to point the finger at a particular person and at the same time suggesting that if you don't, it might be you."

McKinnel says the importance of this new evidence is underlined by the fact the Court of Appeal later said no other reason had been suggested for Ernie implicating Appelgren. This point was also emphasised by prosecutors at both of Appelgren's trials, which the defence struggled to rebut.

At the time of the 10 January 1985 meeting, Ernie, who was in Mt Eden serving a prison sentence for fraud, was claiming he didn't know how fellow inmate Darcy Te Hira was killed. However, in the two days after Te Hira's murder, Ernie wrote anonymous notes to prison authorities pointing them to the location of the murder weapon, but also saying he "didn't see it done". His notes did not identify Appelgren as the killer. Ernie later said he was scared for his life if he spoke up.

Just when Ernie changed his story about what he'd seen is now a matter of contention. Ernie and prosecutors told the juries in both of Appelgren's trials that Ernie changed his story six weeks later, on 22 February 1985, telling police he had in fact seen Appelgren bash Te Hira four times with a large prison kitchen paddle.

However, further documents revealed in today's episode of Nark suggest Ernie may have claimed to have seen the murder as early as that January 10 meeting. A report by Peter Jenkinson written in August 1986 for Police National Headquarters, says that Ernie "verbally told us of what had transpired in the kitchen when Te Hira had been murdered".

While the date of the conversation isn't specified, the report places it after Ernie wrote the anonymous notes and around the date he was moved out of Mt Eden on January 10.

Jenkinson's report also states that Ernie was at that time reluctant to commit himself to a statement as he feared police would "abandon him to the terrors of retaliation within the prison system… it is well known what happens to informers".

Another police report, from January 18, 1985, also backs up the theory Ernie told police about the murder on January 10, not February 22. It says, "although not an eye witness to Te Hira's murder, can say that the suspect was alone with the deceased at the time and that he heard the sounds of the assault. Following the incident, [Ernie] saw the suspect leave the scene, was threatened by him at the time and has been further threatened."

Whether Ernie changed his story in the midst of that meeting or six weeks later, McKinnel says it's significant Ernie only identified Ross as the killer after Police told him they thought either he or Ross was the murderer.

"There is effectively pressure being put on Ernie in terms of his position and what it is he might need to say to save his own skin."

Most of all, he's concerned neither trial heard that police had considered Ernie a potential suspect and had told him so.

"It's concerning that that wasn't put before either of the juries," McKinnel says. "It's more than concerning".

Jenkinson has since died, so RNZ sent a long list of questions about the case and the matters raised in this article to the Police and Crown Law, which oversees prosecutions in New Zealand. Both declined to comment because the case is going back before the Court of Appeal. Police said they would comment further "once we are in a position to do so".

The latest episode of Nark is out now at rnz.co.nz/nark or wherever you get your podcasts. The series airs 7pm Sundays on RNZ National.