Deborah Coddington: A compensation claim that backfired

Easter reading and the review books were finished, the weather was too hot for Turgenev (my son is feeding me Russian classics) so I picked up The Report for the Minister of Justice on Compensation Claim by Rex Haig, by Hon Robert Fisher, QC. Released last December, it makes Turgenev look chirpy.

In 1995, fishing boat owner Rex Haig was convicted of murdering crewman Mark Roderique in 1994. Haig always claimed he was not guilty and finally, after serving his life sentence, his conviction was quashed in 2006.

This made Haig eligible for compensation for wrongful imprisonment under Cabinet's rules - his conviction was quashed on appeal without order for retrial, he served all or part of his sentence, and he is still alive.

But Haig must rue the day he ever applied for compensation, because Fisher's conclusions seem to contradict the essence of the Court of Appeal decision. Not only is Haig not innocent of the murder on the balance of probabilities, ruled Fisher, but there "remain sound reasons for concluding Haig was also a party to the murder".

You might ask, as I did, how a supposedly lesser person in the judicial hierarchy can refuse compensation and essentially overturn the decision of the Court of Appeal, thus dashing the life of someone who has battled for 14 years to clear his name?

The answer lies with the fourth criterion for compensation set by Cabinet: "He/she has satisfied a duly appointed Queen's Counsel that he/she is innocent on the balance of probabilities."

When Haig was on trial for murder in the High Court, the Crown had to prove beyond reasonable doubt he was guilty. However, for compensation before Robert Fisher, the onus of proof shifted from the accuser, the Crown, to Haig. He had to show "that it is more likely than not he is innocent" and, according to Fisher, he couldn't.

I'm not going to argue Haig's innocence or guilt. There is no appeal left for him, but in my opinion Fisher's report is flawed (and carries numerous errors - for instance, placing events in 2004 when they occurred in 1994).

He gives other witnesses the benefit of the doubt when their evidence is inconsistent, yet is unforgiving of Haig when his memory lapses over a 14-year time span.

Haig's supposed motive for the murder is weak: that Roderique knew too much about Haig's alleged paua-poaching conspiracy (on which he was later acquitted).

Numerous people knew about Haig's paua operations, including David Hogan and Tony Sewell, the other crewman on his boat, so why didn't he kill all of them?

Having criticised, I must add Fisher justifies his report by publicly confirming Haig's nephew, Hogan, was, at the very least, party to the murder. "I have concluded that the evidence provides sound reasons for approaching Haig's application on the assumption that Hogan was a party to Roderique's murder." So why was Hogan not prosecuted? Because in 1994, when police were getting nowhere investigating the disappearance of Mark Roderique, they went on Crimewatch and offered witness immunity from prosecution and a reward for information.

First alarm bell. Police don't grant immunity; only the Solicitor-General can do that. So had police been assured in advance by the relevant Crown Prosecutor that immunity would be forthcoming? And was the Solicitor-General's office aware of this?

It would be interesting to know, but no one investigating this case has ever managed to get the Solicitor-General's office to release details surrounding Hogan's immunity.

According to the Solicitor-General's Prosecution Guidelines, written in 1992, only a "minor accomplice or participant" can be granted immunity. Yet nine witnesses made sworn statements to police that Hogan had confessed to the murder, and at least two were made around the same time police were interviewing Hogan. He could hardly be seen as a "minor participant".

Furthermore, the Prosecution Guidelines state that immunity is granted provided "no inducement, other than the possibility of immunity has been suggested" to the witness. But Hogan was offered a monetary reward with the immunity - a clear breach of the guidelines.

The irony is, on the weight of Fisher's report, Haig and Hogan are equally culpable. Therefore in 1994, Haig could have accepted a reward, been granted immunity and given evidence against Hogan. The tables might have been turned.

Today it would be Hogan putting his life back together - his marriage, his career, his soul, his reputation - not Rex Haig. But I wonder which man sleeps easier at night.

If I were at sea, it is Haig, not Hogan, I'd trust with my life.