Convicted killer and rapist Malcolm Rewa's lawyer Mark Ryan explained why there had been a miscarriage of justice, and that a retrial was necessary. Video / Pool
Convicted killer and rapist Malcolm Rewa wants to be put on trial for a fourth time over one of New Zealand’s most infamous murders.
He says his last lawyer’s conduct created an unfair trial, and that the judge’s warnings to a witness deprived the jury of the chance to assess the person’s answers properly.
Rewa was convicted in 2019 of 1992 murder of Susan Burdett in her South Auckland home.
It was his third trial for the murder charge, having already been convicted of Burdett’s rape.
He appeared by audio visual link in the Court of Appeal in Wellington today where his lawyer, Mark Ryan, said they were seeking a retrial as there had been a miscarriage of justice.
The first branch of the appeal related to the evidence of a witness.
Ryan said the trial judge warned one of the witnesses of his legal right to decline to answer questions if the answers would cause him to incriminate himself.
Due to this warning, the witness declined to answer most of the defence counsel’s questions, which Ryan said “deprived” the jury of the chance to assess his answers and credibility.
The nature of what was said are now the subject of a suppression order.
While these facts were provided to the jury in a document of admitted facts, the inability for defence counsel to cross-examine him fully on the information robbed Rewa of a fair trial, Ryan said.
He said the judge should have been told beforehand of the admitted facts, and should not have given the warning.
Ryan also said Rewa’s trial lawyer, Paul Chambers, created an unfair trial through his conduct at the time.
Malcolm Rewa at an earlier appearance in the High Court at Auckland. Photo / Michael Craig
He described Chambers’ behaviour as “clumsy”, said he had “poor thought processes in a jumbled fashion” and said his closing did not do Rewa any benefit at all.
“Mr Chambers did this case pro bono. Mr Chambers has never done a murder case before. Mr Chambers did not advise Mr Rewa of the ability to get legal aid. He did not do it on legal aid because he is not allowed to do legal aid work at that level.”
He said Chambers described himself to the jury as having memory lapses, being bad at multitasking, and discussed personal circumstances by talking about his own diagnosis of PTSD.
“There was an unfair trial based solely on trial counsel’s conduct.”
Rewa’s appeal was supposed to go ahead in 2020, but was put off at the last minute when the court ordered Chambers to obtain a medical report showing his fitness to act.
Ryan also challenged the admission to the jury that Rewa had a conviction for raping Burdett, as Rewa’s defence relied on the assertion he didn’t rape her, but instead had a consensual relationship with her.
In response, Crown lawyer Mark Lillico said while Chambers’ closing statement to the jury was “unconventional”, the issues raised around his conduct were simply “noise”.
“We have a rough start . . . but from then on we make conventional points. Certainly it’s not one of those cases where the defence is undermined by the closing. Maybe misguided in the start but he was clearly trying to bolster the defence case.”
Co-counsel Rebecca Thomson said the issues with the witness declining to answer questions did not amount to a miscarriage, as the main points of his relationship with Burdett were still admitted to the jury.
Chambers was able to cross examine the witness on other topics and show his “evasiveness” in contrast to Rewa’s “forthright answers”.
Rewa’s two previous trials in 1998 resulted in both juries being unable to reach a verdict on the murder charge.
The case also led to one of New Zealand’s great injustices - the prosecution and imprisonment of Teina Pora.
Pora was just 17 when he was arrested before twice being wrongly convicted of murdering Burdett.
He spent 22 years in prison, and his conviction was quashed by the Privy Council in London in 2015. He has received a government apology and $3.5 million in compensation.
Teina Pora spent 22 years in jail after being wrongly convicted of murdering Susan Burdett. Photo / Michael Craig
The trial
A 1998 stay of the murder charge against Rewa was lifted in 2017, allowing a third trial to proceed.
During his trial, Rewa claimed he was in a secret sexual relationship with Burdett - which he said explained his semen being found at the crime scene.
Chief High Court judge Justice Geoffrey Venning, who presided over the trial, has said the claim was “a further injustice and indignity on Ms Burdett and her memory”.
Rewa also accused Burdett’s son Dallas McKay of the murder and said a possible motive might have been the $250,000 he inherited from his mum’s life insurance policy.
The attack on Burdett, Crown prosecutor Gareth Kayes said at trial, displayed all the hallmarks of a typical Rewa crime.
Several of his rape victims had their legs crossed or dangling over the bed, their eyes blindfolded, and top half covered.
Susan Burdett. Photo / Supplied
Burdett was found lying naked on her bed, her upper half covered with a blood-soaked blue duvet after she was bludgeoned to death with a baseball bat, while her legs were crossed and hanging over the side of the bed.
Kayes said Rewa had entered through a window at Burdett’s South Auckland home and surprised the 39-year-old as she prepared for bed - a style of attack he was known for.
Rewa was sentenced to life imprisonment for Burdett’s murder, to be served concurrently with his existing 22-year preventive detention sentence for his rapes.
