Nark: Documents suggest key witness was pressured to testify at Ross Appelgren's murder retrial

Newly-released documents suggest police pressured the main Crown eye-witness to testify at the 1992 murder retrial of Ross Appelgren, something not disclosed to the jury. The documents also show police were "keeping quiet" about the fact the witness was living illegally in Australia, and that they advised him to keep his head down rather than tell Australian authorities.

The paperwork has come to light as part of the RNZ podcast, Nark, which has investigated the murder of Darcy Te Hira in Mt Eden prison in 1985. Fellow prisoner Ross Appelgren was convicted of fatally bashing Te Hira and served more than eight years for the crime, but through two trials always insisted he was innocent.

Appelgren died in 2013 but his wife Julie is going to the Court of Appeal next year in an attempt to get his conviction overturned posthumously.

The conviction relied heavily on the testimony of the Crown's main eye-witness, who has permanent name suppression but in the podcast has been given the pseudonym Ernie. The new documents suggest he felt police cajoled him into testifying at Appelgren's re-trial, after Appelgren had his first conviction quashed by the Governor-General. Julie Appelgren's legal team say the prosecution's failure to disclose that to the jury will be central to their appeal.

After Ernie claimed to have seen Appelgren bash Te Hira in 1985, he made a deal with the police. He received early release, $30,000 in cash, and the promise of help relocating to another country. After Appelgren was convicted, police honoured their end of a deal by asking Australian authorities to grant him residency there. However due to his 200 convictions for fraud, the application was denied.

Undeterred, Ernie changed his name and moved across the Tasman under his own steam at some point in 1987.

Nark has obtained a copy of a November 1990 letter Ernie wrote to New Zealand Police National Headquarters expressing concern that Australian officials might figure out his true identity and status as a prohibited immigrant.

Rather than alert their law enforcement counterparts in Australia to Ernie's whereabouts, Kiwi police bosses advised him in writing that "the New Zealand police department cannot do anything further for you in this regard. To ensure that your fears of being interviewed do not materialize, depends in the main on keeping within the laws of the country you were living in".

Ernie's discomfort reared its head again in early 1991 when police had to persuade him to return to testify at Appelgren's second trial. Detective Chief Inspector Peter Jenkinson, the man in charge of the Te Hira homicide inquiry, visited Ernie in Australia. According to Jenkinson's record of the meeting, first reported by the Sunday Star Times in 1997, Jenkinson warned Ernie that New Zealand Police could "play dirty" if he didn't cooperate.

The new episode of Nark, out today, reveals for the first time that Ernie complained to police in January 1999 about Jenkinson's tactics and the demand he testify a second time, writing: "There was also the issue of the police not keeping quiet to Australian officials about my position, had I not come back for the retrial, this was spoken about on several visits by police to me".

He said he would never forgive the police for that "intrusion" and his life since had gone "down hill at a rate of knots".

Investigator Tim McKinnel, who's a part of Julie Appelgren's legal team, says the police were wrong to have kept Ernie's secret and use it as leverage. Appelgren and her lawyers are arguing Ernie lied about what he saw for his own advantage.

McKinnel told RNZ the police ultimatum to Ernie and threat to "play dirty" was "absolutely an inducement" for Ernie to give evidence, something the law required be disclosed to the defence and the jury. McKinnel said that's because Ernie's motivation for testifying has always been at the heart of the Appelgren case,. Any suggestion Ernie was pressured to testify would have been powerful evidence for the defence. "It is an inducement in the form of a threat. It would've been used heftily by any competent defence counsel in terms of cross-examination of Ernie and police".

McKinnel is also critical of the police failure to tell the jury that detectives knew Ernie had lived illegally in Australia for years. " I think they knew from day one that he was there illegally, and that should never have been allowed to occur. They should have taken formal steps to notify their counterparts in Australia. That would've been the right and proper thing to do".

Instead, Australian officials only learnt about Ernie's criminal past in 1995, when he was arrested for trying to incinerate his ex-wife and her new partner in Queensland. Court documents show Ernie burst in on the couple in the early hours at a suburban home, poured petrol on them, and tried to set them on fire. He was unsuccessful but following an interstate manhunt was arrested and pleaded guilty to two charges of attempting to causing grievous bodily harm. In October 1996 he was sentenced to nine years imprisonment.

Ernie's arrest and convictions prompted inquiries from Australian media and authorities with New Zealand Police about the circumstances of his arrival in Australia.

Police documents from the mid-1990s released to Julie Appelgren last year show Kiwi cops advised Australian authorities that Ernie "was a former protected prisoner and there has been no suggestion that Ernie entered Australia other than in the usual immigration process. At the time he entered Australia, he was not in the witness protection program".

New Zealand police's 1997 media statement was more vague, however, simply saying "witness protection relates to people's personal safety and is not a subject for public debate. Police policy is not to knowingly breach the laws of any country".

However, in an internal briefing to then Police Minister Jack Elder in 1997, reported on for the first time in Nark, police accepted they'd not told the Australians about Ernie's status as a prohibited immigrant before he tried to set two people alight.

Senior officers advised Elder " Criticism could be levelled that, having become aware he was in Australia, New Zealand Police should have advised the authorities there, given that they had previously declined him entry". However they defended their predecessor's decision as "a judgement call".

Tim Mckinnel says the police conduct was unacceptable and is something Appelgren's legal team will be highlighting in his new appeal.

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.