Nark: Early release, cash and accommodation - but prison beating witness says no reason to lie

The prisoner who says he saw Ross Appelgren kill Darcy Te Hira in Mt Eden prison's kitchen in 1985 has spoken publicly for the first time, saying he stands by his evidence at two court trials and insists "there was no advantage to be making up a story".

Appelgren's conviction is being appealed posthumously to the Court of Appeal and has been investigated by the RNZ podcast Nark. This prisoner, who has permanent name suppression, is known in the podcast as Ernie.

In a new episode released today, the prisoner says, "Ross was guilty, and if he ever had got off on a technicality now, then that would indicate to me the system was faulty and wrong".

Appelgren was twice convicted of murdering Te Hira, primarily based on Ernie's eye-witness account.

But Appelgren always maintained he was not in the kitchen when Te Hira was attacked.

Appelgren served more than eight years for the murder before his release in December 1995. He died in 2013, still insisting he was innocent. Now, his wife, Julie, is trying to get his conviction quashed in a legal action unprecedented in New Zealand's history.

Finding the 'nark'

Nark host Mike Wesley-Smith tracked Ernie down as part of his investigation into Te Hira's murder. We can't reveal any details about Ernie, not even the town or country where he now lives.

When approached by Wesley-Smith, Ernie was shocked to learn the case was being re-investigated and was going back to court. He called it "a waste of money and time".

"I would hope any appeal court would squash this nonsense appeal. It's for me dead and buried, and I don't know why anyone would be wanting to clutch at straws other than for a financial benefit of some kind."

Despite his reservations about the case being re-opened, Ernie spoke to Wesley-Smith for several hours over two interviews - one in person, one on the phone - and in several emails. RNZ has decided that reporting his side of the story, his memories, and the information he provided was undoubtedly in the public interest.

What does Ernie say happened?

Asked to recall what he witnessed in January 1985, Ernie said, "I can remember the swing. Can just remember that terrible situation, and the clunking noise was horrific. A paddle hitting somebody's head… I did not see it connect. I saw him swing the bat, but I didn't see it connect.

"I always told them that I remember seeing that bat swing and hearing it connect and thinking what the f*** was that. My legs wouldn't work. I was frozen. I remember it swinging. And Ross had glasses and they fell off, because he had to pick them up. And I saw his face. Ross's face. He was aggro."

In the days following the murder, Ernie sent two anonymous notes to prison authorities, while claiming in his first police interviews he had no useful information related to the murder.

Ernie's first anonymous note pointed police to what was later believed to be the murder weapon - a broken kitchen paddle hidden in the prison kitchen. This carried weight with the judges at Appelgren's 1992 appeal, who found, "Before the authorities knew what the weapon was, [Ernie] not only identified it as the paddle, but also knew that it had been hidden. He was in the kitchen at the time. Plainly, he had seen something of the incident".

However, in Ernie's second anonymous note, he wrote he "didn't see it done" and didn't name Appelgren as the killer.

In his interview for Nark, Ernie said he held back what he knew in his notes because he was scared for his safety: "I didn't want to be put back into that place [prison] and be smashed up".

Ernie's account is backed up by his lawyer Paddy O'Driscoll, who represented Ernie in his initial contact with detectives. O'Driscoll, now retired and speaking publicly for the first time, told Nark Ernie felt obligated to speak because he didn't want the murderer to get away with it.

"Well, [Ernie] struck me as genuine in his concerns. He wasn't bullsh***ing me, you know, he was telling me the situation as he saw it".

O'Driscoll recalled what Ernie told him during their first meeting: "That he'd been in the kitchen and that he'd seen someone get hit over the head with a soup spoon. And the person died and he said, 'look, that's not me. I'm a fraudster. I don't do violence like that', and he was upset about it."

Ernie told Nark Appelgren was acting on someone's behalf, but he couldn't remember who, and that the attack was drug-related.

"Ross was silly enough to be tied up with drugs obviously, and everyone in those places has to survive the best way they can. And no doubt Ross was carrying out against the deceased the treatment he thought was appropriate. Whether or not this was meant to kill anyone, I would not know."

He wrote that he can understand why no-one else saw anything.

"The kitchen was very noisy and had lots of activity going on, so a large bang would not of [sic] been out of place. Banter of voices, stirring of pots, the radio blaring away, extractor fans roaring…"

Nark claims 'there was no deal'

When Ernie was asked during his interview for Nark if he fabricated the evidence for his own gain, he said, "God no. No. No. No. There was no deal."

There's no doubt in his mind: "It did happen. There was no advantage to me making up a story to suit anyone; it was tested in court two times".

In a later email, he wrote: "There was no incentive for me to give evidence, there was no reward, or name changes offered prior to the evidence and court case".

This was a point strongly disputed by Appelgren and his lawyers. They pointed to Ernie's early release from prison in June 1985; police putting him up in a Christchurch motel and rental accommodation for 18 months until February 1987; and the promise of a $5000 cash payment from police, which after Ernie testified in court, was increased to $30,000.

Police also promised to relocate Ernie overseas, although in the end, Ernie moved to Australia of his own accord.

These details weren't disclosed to Appelgren's defence lawyers or the jury at the first trial. Appelgren's lawyer asked Ernie during the trial, "do you know of any advantage you can gain from giving this evidence today". Ernie replied, "None at all".

An 'inveterate liar'?

Ernie says he grew up on a farm "in a very loving family" who were "community people". Police documents show that when Ernie moved to Auckland in his early 20s, he began committing dishonesty offences and, in 1982, was jailed for stealing $23,000 in cheques from his employer.

A police report from the time called him an "inveterate liar". That report wasn't seen by the juries at either of Appelgren's trials.

In 1984, he was caught defrauding a new employer of tens of thousands of dollars. He was convicted of 208 fraud charges and one charge of theft and was sent to Mt Eden prison for three years and three months (later reduced on appeal to two years imprisonment).

The sentencing judge told Ernie: "It seems to me you are basically a dishonest person". It was during that prison sentence Ernie says he saw Te Hira murdered.

Ernie said he was a fish out of water in Mt Eden. A loner. He was not involved in drugs, and the prison world was not one he was used to. He was "embarrassed at being locked up, and shattered, as my life was in tatters," he wrote in an email to Wesley-Smith.

"Seeing what happened in the kitchen only sold me further down the line of being in the pits of my life."

He's now living quietly, owns his own business and has put his criminal activity behind him. For his own sake, Ernie wishes "the whole thing was left dead and buried". For Julie's sake, he says she "needs to let it go. There is no miracle here".

RNZ sent a long list of questions about the case and matters raised in this article to the Police and Crown Law, which oversees prosecutions in New Zealand

In an email, Detective Inspector Scott Beard, Auckland City CIB, wrote: "As this process is ongoing and has not been heard by the Court, it would be premature for Police to engage in detail at this point". Beard promised Police would comment further "once we are in a position to do so".

A Crown Law spokesperson told RNZ by email, "it is not appropriate or sensible for the Crown to take positions on the case in the media before it reaches the Court or, indeed, the facts have been ascertained. As with any other criminal appeal process that is before the Court, we will not be engaging with the media while it is at this stage".

Nark is being released every Monday, Wednesday, and Friday on rnz.co.nz/nark and all podcast apps. It airs at 7pm Sunday on RNZ National.