R v AB

[2022] NZHC 416

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 416

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

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

Judgment:

10 March 2022

JUDGMENT OF SIMON FRANCE J

(Permanent Name Suppression)

[1]                 The applicants for permanent name suppression were formerly charged with the murder (and associated offending) of Ms Lois Tolley. The charges against them are to be withdrawn with leave of the Court.1 The investigation remains ongoing some years after the event. The giving of leave to withdraw means these former defendants could each be again charged. However, there is presently no admissible evidence to do so. The end of the prosecution case was due to this evidential insufficiency.

1      R v X [2021] NZHC 3279; R v AB and CD [2021] NZHC 3524.

R v AB, CD and X [2022] NZHC 416 [10 March 2022]

[2]                 The applicants for various reasons have had name suppression throughout the process. It was envisaged this would end prior to trial but that point was never reached. They now seek a permanent order, subject to such order being revisited if any were again charged with this offence.

[3]                 The application is not opposed and I have no doubt it is the correct outcome. The murder was and has been a matter of high public interest. The former defendants have each spent a considerable period on custodial remand, only for the apparent evidence against them to fall away.2 The history of the matter is well documented in publicly available judgments and there is, in my view, little public interest in knowing the identity of these men.

[4]                 The present situation is more compelling than in the situation of a person acquitted. The most that there can normally be said is that the prosecution has failed to meet the criminal standard. Here, the prosecution accepts there is not sufficient evidence to even put the men on trial. My assessment is there is presently really no evidence against any of them.

[5]                 A question of jurisdiction to make this order was raised at the hearing. The query was not so much the power but its source – statutory or inherent jurisdiction. Despite the nomenclature of former defendants used in this judgment, as it transpires at the time this order was made3 the applicants were still defendants, no notice of withdrawal having been filed. It would appear therefore the route is s 200 of the Criminal Procedure Act 2011. I consider publication would cause extreme hardship given the circumstances set out, and the right of these men to continue on or rebuild their lives.4

2      The circumstances concerning X are set out in R v X [2021] NZHC 2444.

3      The orders were made at the hearing on 22 February with reasons to follow.

4      I have regard to evidence in support filed on behalf of CD. It is an example of the undoubted impact publicity would have, given the profile of the case.

Order

[6]                 The names of the applicants are permanently suppressed. This order is subject to revisiting if any of the applicants were again to be charged in relation to the death of Ms Tolley.

Simon France J