R v AB

[2022] NZHC 304

THE NAMES OF THE FORMER DEFENDANTS ARE PERMANENTLY SUPPRESSED

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-096-3073

[2022] NZHC 304

THE QUEEN

v

AB, CD and X

Hearing:

25 February 2022

Counsel:

G J Burston and A C R M Jeffares for Crown R M Lithgow QC for Mr X

V C Nisbet and L Caris for Mr AB N C Wintour for Mr CD

Judgment:

28 February 2022

RULING OF SIMON FRANCE J

(Access to Court Records)

[1]    The three persons named in this proceeding were formerly charged with the murder of Ms Lois Tolley. Late last year the Crown was given leave to withdraw the charges, there being an evidential insufficiency in relation to each defendant. The extent of the insufficiency varies but in my view it is very significant for each former defendant.

1. There are applications by various media outlets for access to aspects of the file:

(a)Newshub      judgments, and decisions concerning name suppression;

R v AB, CD and X [2022] NZHC 304 [28 February 2022]

(b)Radio NZ judgment, submissions and charging documents with a particular focus on the withdrawal of charges, and the applications under s 147 of the Criminal Procedure Act;

(c)NZME           minutes and decisions relating to the withdrawal of charges decision. Also accompanying memoranda.

State of proceedings

[3]    Leave to withdraw the charges has been given. No notice of withdrawal has yet been filed.

Context

[4]    There is an ongoing investigation. The decision to allow the Crown to withdraw the charges means that the former defendants may be charged in the future. The material on the file therefore remains relevant, and fair trial concerns exist.

[5]    The former defendants have had name suppression throughout, and that has now been made permanent. They have legitimate privacy interests, and a legitimate interest in being able to carry on with their lives. Some have also spent a significant period in pre-trial custody. The more information that is released, the more the effectiveness of the name suppression order will be challenged.

[6]    The death of Ms Tolley in her home has attracted legitimate interest. The reasons why the case against the former defendants failed is a matter of ongoing legitimate interest.

Judgments

[7]    All judgments were suppressed until final disposition. That point has effectively been reached although not yet perfected by the filing of a notice withdrawing charges.

[8]    Bail decisions contain no ongoing public interest and pursuant to Rule 8(4)(a) of the Senior Courts (Access to Court Documents) Rules, I decline access.1

[9]    Access to the other judgments is granted. It is the primary method by which the need for public justice can be met in this proceeding. They are self-contained explanations of the matters in issue, but collectively provide an adequate overview of the progression of the proceeding.

[10]   Separately I have allowed applications on behalf of CD for suppression of some matters raised throughout the course of the proceeding, and which carry some risk for CD. Accordingly a judgment in R v AB2 will be recalled and amended in minor ways to give effect to this separate order. In the interim it will not be available.

[11]   With this one qualification I confirm the judgments (other than bail) are now available. The most significant judgment, R v X3 was released with four paragraphs redacted. That redaction is the subject of challenge by Stuff Ltd. A hearing is to take place.

[12]In the interim, only the redacted version may be released.

Simon France J

Solicitors:

Crown Solicitor, Wellington for Crown

1      It is uncertain that any of the applications actually seek access, but it is preferable to address all potential matters.

2      R v AB [2021] NZHC 1568

3      R v X [2021] NZHC 2444.