David Tamihere outside the High Court in Auckland on 25 July 2018.
WHY IS THE MAXIMUM SENTENCE FOR PERJURY SO SEVERE?
Perjury under s 109(2) of the Crimes Act 1961 carries a maximum term of imprisonment of 14 years. The most serious crimes are commonly regarded as murder, arson, robbery and rape. It is only murder and rape that have a more severe penalty.
1. The Nature of the Offence
The nature of perjury offers sound guidance for the courts to impose the highest extent of the statutory maximum term of imprisonment. There's always more than one victim in perjury as it constitutes an attack on the court itself, or at the very least a “deception of the court”. See Westphal 28/3/1995 Vic CA.
In modern democracies, courts represent the principal institution of the fair administration of justice. Therefore, the justice system relies on people speaking the truth, and the entire trial process could not function if we abandoned or “turned a blind eye” to this practice. The reliability of court verdicts and the public’s confidence in the judicial process depends on the value of truth.
The inherent gravity of perjury lies in the fact that false statements to a jury are relatively easy to make but difficult to detect or prove. Refer to the Report of the Kaufman Commission on Proceedings Involving Guy Paul Morin, Honourable Fred Kaufman 31 March 1998, Canada. See also The Queen v Schroen  VSCA 126.
The complexities of proof provide an explanation why there are so few prosecutions of jailhouse informants (JIs). In the double murder trial of the two Swedish tourists, the defence faced these difficulties when it confronted the detailed and gruesome confessions allegedly made by David Tamihere to Witness C. Almost 30 years later, David Tamihere correctly observed in the prosecution of Witness C, that in these circumstances, it is generally one person’s word against another. They are a "dangerous crew", he said. And on this point, it was stated in Simmonds (1969) 53 Cr App R 488 at 489 by Parker LCJ stated that:
"Again it is very difficult to prove, and accordingly it must be understood that perjury, when proved, attracts a severe penalty".
2. The Credibility of Jailhouse Informants
The obvious argument against the reliability of testimony given by JIs, is that no one could possibly believe a person who is a convicted criminal. This is counter-intuitive. The JI is always represented by the prosecution which is the government, the State that we are meant to trust and respect. Arthur Taylor illustrates from his personal experience with a JI, is that they are brought into court in an atmosphere of drama bordering on fan-fare. For example, because they are protected by the State, they are generally surrounded by law enforcement officers and other paraphernalia when they enter the court and the prosecution is seen by the jury to support it.
It is difficult to see how a jury could not have a favourable first impression of the JI. In the Court of Appeal on 21 August 2018, Justice Helen Winkelmann, said Harris must have been seen as a material witness for the Crown to have called him at the trial, and it was illusory to try to guess what the jury made of it, but David Tamihere was convicted of murdering two people. Asher J said that putting aside the doubts of the credibility of Witness C, what could have been stronger than a hard confession - “it's terrific evidence – a confession," The Court reserved its decision.
3. The way Forward
There is no doubt that something has to change. There is an old maxim in criminal law that “it's better that 10 guilty men go free than one innocent man be wrongly convicted”. It’s too easy for the State to rely on jailhouse confessions in complex and circumstantial cases. Whether we follow the Canadian model to impose checks and balances in the use of evidence by JIs or whether we abolish them altogether, remains to be seen.