The Crown will tell the Privy Council that much of the new evidence in the Teina Pora case is unscientific and unhelpful.
It will argue that aside from a small amount of evidence relating to an assessment that Pora suffers from foetal alcohol spectrum disorder, that the rest is speculative and not scientific, Solicitor-General Michael Heron QC told the Herald.
Mr Heron, who heads the Crown's team in the hearing which begins tonight, said they will argue that admissible new evidence would not have produced a different result from when Pora was convicted of the rape and murder of Susan Burdett in 2000 at a retrial ordered after the semen from Ms Burdett was found to belong to Malcolm Rewa.
Rewa was a habitual lone offender convicted of sex attacks on 27 women including Ms Burdett, who was raped and murdered in March 1992 after returning to her Papatoetoe home from 10-tin bowling.
She was believed to have been battered. A softball bat she kept for her own protection was found beside her body.
No physical evidence was found to link Pora to the crimes. But Mr Heron said that "there are surrounding circumstances and some pretty special knowledge that Mr Pora exhibits that makes the convictions safe".
This included evidence that Pora attended Manukau Superstrike bowling alley on the evening in question, was seen with Rewa before and after the murder, was seen with blood on his rugby league jersey the next day and had said that he had disposed of a bat with blood on it.
"There were some witnesses who were paid modest amounts but the material we are referring to isn't of that quality," Mr Heron said.
Pora's team argue that a diagnosis that Pora suffers from foetal alcohol spectrum disorder, together with the opinion of a leading world expert on false confessions, is new evidence that would have cast further doubt on the reliability of Pora's confessions had the information been available.
The other ground of his appeal is that because of an error by his lawyer, the significance of Malcolm Rewa's erectile dysfunction was never put to a jury. It is contended that Rewa would never have had Pora along to observe his deficiency.
Mr Heron said the reliability of the confessions had been an issue from before Pora was first convicted in 1994.
"They did set off alarm bells ... There was a pre-trial argument in front of one of New Zealand's leading judges, Justice Henry. Then it went to a full court of our Court of Appeal, then our highest court, which looked at the fairness and the Bill of Rights and ruled that the confessions were admissible."
However, Mr Heron said that Pora's appeal was "a very well researched and documented case, [with] very reputable professionals involved.
"We are not there to strenuously hold on to anything. We're there to ensure a complete and proper argument is put and a balanced and fair approach to the case is taken."
The two-day Privy Council hearing begins today at 11.30pm. The court is expected to reserve its decision.
If it quashed Pora's convictions and recommended there be a retrial, the Crown Law office could make a decision not to have a retrial, a spokeswoman said.
"Whatever the court said in their decision would be very strongly taken into consideration in whether or not there would be a retrial."
The Privy Council quashed the convictions of David Bain and Mark Lundy and recommended they be re-tried. Bain was subsequently acquitted; Lundy's re-trial is set for next year.
A live web stream of the Pora Privy Council proceedings will be available at: http://www.jcpc.uk/live/court-03.html
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The key questions:
• Would fresh expert opinion that Pora made a false confession have made a difference to the verdict.
• Would new evidence that Pora suffers from foetal alcohol spectrum disorder have made a difference to the verdict.
• Would the jury have reached a different verdict had it known that Malcolm Rewa (convicted of raping Susan Burdett) suffered from erectile dysfunction.
By Phil Taylor of the New Zealand Herald
