If Rex Haig didn't kill one of his crew, who did?

Rex Haig - the man who spent an agonising 10 years behind bars for a murder he insists he didn't commit - missed the crucial moment when the scales of justice finally appeared to tip in his favour.

It was shortly after 2pm last Wednesday, when the Court of Appeal judges in Wellington dropped a bombshell in courtroom number two. Haig, who had earlier been sitting alongside his daughter Karen in the front row, was nowhere to be seen. They'd popped out for a few hours.

"I think you have got a problem on the conviction," Justice William Young blurted to Crown lawyer Kim Hastie.

Had Haig been there, he would have been justified in celebrating this moment. It was a crucial point in his 12-year campaign for justice - he says he did not kill fishing crewman Mark Roderique in 2004. It's been a campaign which included his taking prison guards hostage in 1997 to force a review of his conviction.

The three Court of Appeal judges - President Young and Justices Grant Hammond and Robert Chambers - were systematically demolishing the Crown case with their questioning.

Haig's counsel produced fresh evidence in the form of affidavits from at least a dozen witnesses who stated another of the fishing crew, Haig's nephew David Hogan, had "boasted" to them he'd killed Roderique, using terms like "blown away", "I knocked him off", "turfing him overboard"; that he'd used a pearl-handled colt revolver, that he'd beaten him first then shot him.

And the court heard that before it was made public that Roderique was missing, Hogan allegedly told his then girlfriend, Kylie Reidie, that "somebody had been shot and killed".

At one stage Justice Young asked Crown lawyer Hastie: "I don't want to sound unduly pessimistic from your point of view but what would you say about a retrial?"

When the three judges retired just before lunch on Wednesday, the Court of Appeal gave strong indications it would quash Haig's conviction, and there is little expectation a retrial will be ordered.

Haig has already completed a prison sentence for murder, and if found guilty at a new trial, he would have to serve the mandatory minimum of 10 years all over again. According to Justice Hammond, this was "absolutely bizarre" and constituted a major factor against ordering another trial.

Then who?

So if Haig didn't kill Roderique, who did? First some background.

Last week's hearing was the result of Haig's second appeal to the Governor-General to exercise the prerogative of mercy.

Haig was convicted of Roderique's murder in November 1995 and his appeal was turned down in July 1996. In 1999 his first mercy appeal was referred to John Billington QC. Though Billington had the same "fresh evidence" which could now see Haig cleared of the crime, the Ministry of Justice rejected the appeal.

Haig's second mercy appeal was sent to Colin Carruthers QC, who reported that ministry officials' advice to Phil Goff was wrong in that they "seem to have stepped into the shoes of the Court of Appeal and decided the essential question which is one for the Court of Appeal to decide, and not the Minister". Carruthers recommended the case go back to the Court of Appeal.

Last week, Haig's lawyer Jonathan Eaton told the court the new evidence from witnesses pointed to David Hogan, Haig's nephew.

There were also questions over the murder of one of the key defence witnesses, just nine days before Haig first went to trial in Invercargill in 1995.

Hogan gave evidence against Haig at that trial under immunity from prosecution. Before the jury retired, they were told by the judge that Hogan's evidence "is critical to the Crown case". It was also critical to Hogan that his Uncle Rex be convicted - without a guilty verdict he would not get the $13,000 reward he'd been promised by police.

But Hogan was not the only witness rewarded by the police. On Wednesday in the Court of Appeal it was revealed for the first time that another Crown witness, Tony Sewell, also reaped some of the $20,000 reward money. Sewell, a crew member described as "thoroughly intoxicated" the day Roderique went missing, was also granted immunity from prosecution. Charges of accessory after the fact of Roderique's murder against him were dropped.

So if Haig's conviction is overturned, what are the implications for Hogan? His immunity was granted by Solicitor General John McGrath QC in 1995 on the condition he gave his evidence "truthfully" and had given police a "full, frank and truthful account of the events". McGrath added that the undertaking will not protect Hogan from the consequences of giving or having given untrue information or evidence.

If Haig's conviction is quashed because Hogan's evidence is found to be unreliable, or false, police could face pressure to look at him.

Crown lawyer Kim Hastie told the Appeal judges they should order a retrial, but she also asked: "It also raises the question: should the Crown solicitor be looking at charging Hogan?"

Though commonly referred to as Haig's nephew, Hogan is actually the nephew of Haig's ex-wife. Now living in Nelson, he could not be reached for comment.

In May 2004, Hogan was convicted in the Nelson District Court of using threatening language and fined $200 after an altercation at Nelson Pine Industries where he was working as a lathe operator. According to media reports at the time, Hogan clashed with his supervisor and when they met in the supermarket, Hogan threatened to burn down the supervisor's house. Already on a warning for threatening another worker, Hogan was sacked by the company.

But this wasn't the first time Hogan appeared in court for threatening behaviour. In 1999 he was convicted in Greymouth of threatening to kill the partner of his former girlfriend. The court was told Hogan pointed his hand like a gun at the man and yelled, "You're f****** dead". Later Hogan told police he wouldn't just threaten the man, "I would do him".

Sandra Breese, Rex Haig's sister who lives in Mosgiel and has known Hogan all his life, describes him as "always a handful".

She remembers Hogan's parents repeatedly asking Haig to take their son on his boat as crew but her brother was reluctant, knowing how difficult the teenager could be.

"After about a year," Breese estimates, "Rex was finally persuaded and took David on mainly because he was desperate for crew."

She says she's never doubted her brother's innocence. "I've always stuck by him, and visited him in prison."

The two are not biological siblings, but foster children raised by "lovely, loving foster parents".

Breese's cautious excitement that Haig may at last be exonerated, is tempered by the fact that their mother didn't live to see the day. Though their mother saw Haig released from jail, she was determined to stay around until his name was cleared, says Breese, "but she died two days after St Patrick's Day this year".

Breese has not had anything to do with Hogan since her brother was convicted, but has sympathy for Hogan's parents: "It's sad for them, too."

His mother and father are "lovely people" and he came from a "good Catholic family".

'Aggro'

Hogan was only 18 years old at the time of Roderique's death. Haig's tuna boat, Antares, was in port at Jackson's Bay, South Westland, with a crew of Hogan, Roderique and Tony Sewell. The fishing trip they'd just completed had been punctuated by "aggro" between Hogan and Roderique, who was allegedly a heavy cannabis user.

The final straw for Haig was when Roderique pulled a knife on Hogan. He disarmed Roderique with a stick, chased him off the boat and punched him several times, then told him to collect his gear and leave.

Haig told the court at his first trial that he was going to give Roderique $100 to catch a bus to Bluff, but never saw him again. Nor did anyone for four months so police launched a missing persons inquiry.

Meanwhile, in August 1994, Rex Haig was charged with conspiracy to poach paua and released on bail. (He was found not guilty, but this formed the basis of the Crown's proposed motive for Haig killing him. Roderique, the Crown alleged, knew too much about Haig's alleged paua poaching.)

The next month, after TVNZ's Crimewatch programme offered a $20,000 reward for information leading to a conviction, an associate of Hogan, Anton Sherlock, told police Hogan had admitted to him that he'd shot Roderique. He said Hogan had threatened to kill him if he told anyone. But when questioned by police, Hogan said Haig had beaten Roderique to death with an iron window sash.

Haig was arrested and charged with murder, and Tony Sewell, the third crew member, was also arrested and charged as an accessory after the fact. Nine days before Haig went on trial, Anton Sherlock was found dead. Hogan, who was living on the West Coast under police witness protection, was ruled out as a murder suspect.

In February 1996, Nigel Johnstone was convicted of Sherlock's murder. He appealed against his conviction in September 1996 but was turned down.

Since Haig went to jail, seven or eight witnesses have died (see box), which could cause problems if a retrial was ordered.

We can't know if Hogan killed Roderique but serious questions need to be answered. The Court of Appeal has reserved its decision.

Deborah Coddington is married to Colin Carruthers QC.