The Crown argued Wilson and Hoggart were the two heavily disguised robbers who burst in through a back door of the tavern as Bush and other staff members enjoyed a drink after closing the bar shortly before midnight on October 24.
The defence argued the circumstantial evidence was weak or unreliable and the jury could not be satisfied of guilt beyond a reasonable doubt. They also argued there was a possible alternative suspect.
The trial judge, Justice Mark Woolford likened the circumstantial case to a rope when summarising for the verdict, stating that any one strand alone might not support weight, but all strands combined could, he said.
A jury ultimately found the pair guilty of murder, but the men fought their convictions all the way to the Supreme Court.
One of their arguments in appealing centred around whether the verdicts were reasonable.
In a decision released today, Justice Sir Stephen Kos KC said the Crown failed to establish the necessary standard of proof to find either accused guilty during the trial.
It also failed to prove the shooting wasn’t caused by a third possible suspect, Lester Hamilton, who has since died.
“Standing back, our assessment is that the evidence against Mr Hamilton is of much the same order as that against the appellants,” the justices wrote.
In coming to that decision, they set aside the men’s convictions and entered judgments of acquittal. There will not be a retrial.
‘The fatal armed robbery’
The men were charged with murder in August 2017, nearly 30 years after Bush was shot dead inside the Red Fox Tavern in the Waikato village of Maramarua.
Bush had been enjoying a drink with his staff after closing the bar on the side of State Highway 2, when two masked men entered the bar just before midnight.
Armed with a sawn-off shotgun and a baseball bat, one of the men shot Bush when he challenged them.
The three staff were tied up and the two intruders made off with around $36,000 from the safe.
The case remained unsolved until the late Detective Inspector Gary Lendrum, who worked on the original Red Fox inquiry as a young officer, reopened the file as the most senior detective in Counties Manukau.
The following year, Wilson and Hoggart were charged with murder and then convicted in 2021.
The Crown case was that Wilson pulled the trigger.
Both men were sentenced to life imprisonment.
Despite the convictions, suppression remained in place for Wilson as he battled to overturn his convictions.
In May 2023, the Court of Appeal firmly rejected his appeal on various legal and evidential grounds.
“When viewed cumulatively, the strands of evidence relied upon by the Crown created a convincing case against Mr Wilson,” the appeal court stated.
The three-judge court also lifted the name suppression order, but it remained in place while Wilson exhausted his legal options.
That ended today when the Supreme Court allowed his application to overturn the Court of Appeal’s findings.
Chris Bush was shot dead in the Red Fox Tavern in October 1987. Photo / File
The ruling means the Herald can now reveal Wilson’s extensive criminal history – which includes another murder conviction.
In 1999, Wilson was the president of the Filthy Few motorcycle gang in Tauranga.
Better known in the criminal fraternity as “Little Willy”, he shot and killed his former girlfriend Jo-Anne van Duyvenbooden in her own home, before dumping her body a few hundred metres down a slope outside the cottage she lived in.
Two years later, Wilson was convicted of murdering the 32-year-old after a fellow member of the Filthy Few gave evidence against him.
Former Filthy Few president James Henry Wilson, in Tauranga in 2000. Photo / File
Red Fox: ‘A miscarriage of justice’
In the Red Fox prosecution, the Crown had to establish that the evidence placed Wilson and Hoggart at the crime and that Hamilton wasn’t involved.
“We consider the Crown case failed to establish either to the required standard of proof,” Justice Kos wrote.
Wilson’s counsel, Christopher Stevenson, successfully argued that the inability to use evidence from Hamilton’s neighbour, which he likened to a confession, was a breach of his client’s fundamental right to present a defence.
Justice Kos agreed and said the trial judge was wrong not to allow that to happen, and subsequently ruled five other aspects of evidence from the Crown witnesses inadmissible.
Publican Christopher Bush was murdered at the Red Fox Tavern in 1987.
That included a woman noticing a car scoping out the Red Fox on the Friday of Labour weekend, two women’s evidence about the accused’s arrival at their home in the early hours of Sunday morning, a glove – a print of which was found on the safe, a grassy shoe print found inside the tavern near the back door, which the offenders entered.
Wilson and Hoggart’s account of where they were that weekend was also dubbed as “lies” by the Crown.
Kos said that evidence should not have been legitimate parts of the Crown case.
“The jury should not have been asked to consider them as lies to conceal guilt.
“It is true that the issues with the evidence … and discussed in detail … could have led the jury to disregard it or to give it minimal weight.
“The jury may also not have relied on the ‘lies’.
“There nevertheless remains a risk that the jury did rely on the inadmissible evidence and on the lies, and this means there is a ‘real risk that the outcome of the trial was affected’.”
That meant “relatively few strands” were left directly related to the Red Fox, and that there was a risk that the jury considered the evidence directly linking the appellants to the Red Fox to be indispensable to its conclusion and, without it, would not have reached guilty verdicts.
“This constitutes a miscarriage of justice,” Justice Kos wrote.
The judges found that certain evidence should not have been admissible, which meant “the outcome of the trial may have been different without that evidence”.
The court also concluded that, while a reasonable jury could have come to the view that the Crown had excluded the reasonable possibility of Hamilton being one of the offenders, they came to that view through inadmissible opinion evidence of Detective Senior Sergeant Hayward.
“There was thus a miscarriage of justice on both of these grounds, and the appeals must be allowed.”
‘A 30-year plus delay’
Justice Kos said a lengthy delay in deciding to charge an offender was not necessarily an issue if there was sufficient evidence to charge an accused.
“And I have concluded … that there was.
“The real issue is whether the delay has an effect on the reasonableness of the verdicts.”
However, the judges found that although the lengthy delay exacerbated “many” evidential deficiencies given witnesses had died or faced memory issues, a reasonable jury could still have reached guilty verdicts on the remaining admissible evidence.
Mark Joseph Hoggart. Photo / Dean Purcell
James Henry Wilson at the Auckland High Court during his trial for the 1987 murder of Red Fox Tavern publican Chris Bush. Photo / Dean Purcell
Lester Hamilton
The decision stated that Hamilton, like the now-acquitted men, had a possible motive to commit the offending, which was to finance his drug habit or a heroin importation plan.
He’d also made detailed plans to rob the Red Fox and possibly carried out a scoping visit about two and a half weeks beforehand.
His plan also included the use of a shotgun and to shoot anyone who resisted.
Hamilton had also confessed his involvement to numerous associates.
The court found that because of the similarities between the evidence against Hoggart and Wilson and that against Hamilton, a verdict of guilty against them “could not have been reasonable unless the Crown had excluded the possible involvement of Mr Hamilton beyond reasonable doubt”.
Wilson’s lawyer said evidence from a neighbour of Hamilton who said, “Well the stupid bastard shouldn’t have moved”, when talking about the Red Fox case, was a statement of confession.
The neighbour was not a criminal, did not know the appellants and had no incentive to be anything but truthful.
The exclusion of the neighbour’s evidence was a breach of Wilson’s “fundamental right to present an effective defence” as it deprived him of the opportunity to call the only living witness without a criminal history or connection to anyone in the case who could say that Hamilton had confessed.
The Supreme Court agreed, stating the trial judge was wrong to have excluded the neighbour’s evidence.
‘The different conclusions reflect the complexity’
Detective Superintendent Dave Lynch said today the offending at the tavern was “a tragic event that resulted in the death of Mr Bush and had a profound impact on his family, friends, staff members who were present, and the wider community”.
“We recognise that today’s decision will be difficult for many people connected to the case, particularly Mr Bush’s family, who have lived with the consequences of this crime for almost four decades.
Detective Superintendent Dave Lynch. Photo / Brett Phibbs
“The investigation into the Red Fox Tavern robbery and homicide was extensive, spanning many years and multiple investigative reviews.
“Police remain proud of the dedication and professionalism of the investigators who worked tirelessly to seek answers on behalf of the victim, his family, and the community.”
Lynch said the decision didn’t diminish the seriousness of the offending or the commitment shown by investigators over many years.
“Police undertook the prosecution based on the evidence available and in accordance with our obligations under the criminal justice system.”
Police respected the court’s decision and would “carefully review the judgment”.
“The differing conclusions reached by the High Court, Court of Appeal and Supreme Court illustrate the complexity of the evidential issues considered throughout these proceedings.”
– Additional reporting Jared Savage
Belinda Feek is an Open Justice reporter based in Waikato. She has worked at NZME for 11 years and has been a journalist for 22.