In a ground-breaking appeal, the High Court has been told one of Cook Islands most notorious arsons may never have happened.
A bench of three Court of Appeal judges heard the arguments for David Tonorio’s innocence by video conference, from New Zealand.
A jury last year found him guilty of burning down Arorangi Friendly Mart, Betela Tex Mart and Raromart in 2018. Judge Colin Doherty sentenced the 18-year-old to eight years and six months in prison.
But now, his defence lawyer Norman George is challenging how police obtained evidence against his client, how the Crown presented its evidence, and the conduct of the trial.
“There was no evidence that Raro Mart was deliberately lit, we don’t know how it was started,” George told the court. “There was no evidence the alleged appellant was there.”
He added: “At the end of the day, no one knows who or how it started at Raro Mart.”
After months of postponing High Court sittings with judges from New Zealand, due to the Covid-19 border closures, Court of Appeal justices Sir David Williams, Sir Raynor Asher and Sir Douglas White agreed to the video hearing.
David Tonorio appealed both his conviction and sentencing; they reserved their judgment.
Norman George said Tonorio’s alibis were unchallenged: he was with his family on the night of the Friendly Mart fire. On the night of the Tex Mart fire he was with his family again, home preparing food for the market, and the same again on the night of the Raromart fire.
Judge Doherty in his summing up should have mentioned the family’s evidence; he didn’t, and the jury chose to reject the alibi.
George said there were no evidence of arson being committed in relation to the Raro Mart fire and police did not look into other persons of interest, like Tonorio’s three friends who should have been treated as suspects, not witnesses.
There was a fourth witness presented by the Crown who changed his mind and had said he lied to the police when he accused Tonorio of burning the three stores.
Crown prosecutor Kathy Bell rejected the suggestion that the fire was anything other than arson, saying electrical and natural causes were ruled out as causes – it was definitely a suspicious blaze.
Two of Tonorio’s friends said he did commit the crime, she added, and they had challenged the reliability of the alibi about the Tonorio family gatherings.
George also argued an 8½ year prison sentence was harsh, for Tonorio’s age. Six years would have been sufficient, to allow Tonorio three years for parole and probation supervision.
Bell said Judge Doherty knew of Tonorio’s age and gave him an 18 months discount. “It was more than adequate for his age, given his offence,” she said.