R v AB and CD
[2021] NZHC 3524
•17 December 2021
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THE NAMES OF THE DEFENDANTS ARE SUPPRESSED UNTIL FURTHER ORDER OF THE COURT (SEE [34]) IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2019-096-3073
[2021] NZHC 3524
THE QUEEN v
AB and CD
Hearing: 10 December 2021 (AB)
14 December 2021 (CD)
Counsel:
G J Burston and A C R M Jeffares for Crown L B Cordwell and N C Wintour for Mr CD V C Nisbet and L Caris for Mr AB
R M Lithgow QC and A Jeremich appearing for Mr X
Judgment:
17 December 2021
JUDGMENT OF SIMON FRANCE J
Introduction
[1] The two defendants are presently charged with murder, and other connected offences, flowing from the murder in late 2016 of Ms Lois Tolley. Trial was to occur in February 2022. The Crown accepts it has insufficient evidence to sustain a guilty verdict. The issue is how the present charges are to be disposed of:
(a)the Crown has applied under s 146 of the Criminal Procedure Act 2011 for leave of the Court to withdraw the charges;
R v AB and CD [2021] NZHC 3524 [17 December 2021]
(b)the defendants have applied under s 147 of the Act for a dismissal of the charges. This would constitute a deemed acquittal.
Facts and procedural history
[2] Ms Lois Tolley was killed in her home on the evening of 9 December 2016. It is known from CCTV footage that four men entered her home armed with a weapon such as a machete and a shotgun. A confrontation ensued. Ms Tolley was cut on the leg and then fatally shot from close range.
[3] The investigation was protracted and it was three years before the first of the defendants was charged. Of these three defendants, two were alleged to be part of the four who entered Ms Tolley’s home. They are X and CD.1 The third defendant, AB, was alleged to be part of the common plan and to have been present outside.
[4] In the last three months the Crown case has gradually unravelled. It is necessary to set out a chronology as it is relevant to the present applications:
(a)in September 2021 a judgment was issued excluding the admissions made to police by Mr X.2 These admissions were the bulk of the case against him, leaving a clear evidential insufficiency;
(b)Mr X responded with an application for a s 147 dismissal of charges. The Crown accepted an evidential insufficiency but sought leave to withdraw the charges;
(c)on 24 November a hearing occurred before me to consider which of the competing applications should be granted. At the time of the hearing the trial against AB and CD was proceeding. On 2 December I gave the Crown leave to withdraw the charges;3
1 All defendants had interim name suppression until trial. Any applications for permanent name suppression will be considered next year.
2 R v X [2021] NZHC 2444.
3 R v X [2021] NZHC 3279.
(d)on 5 December the Crown applied for leave to withdraw the charges against AB. The case against AB depended in large part on admissions he had allegedly made on separate occasions to fellow prisoners. The Crown reached the view it could not call these witnesses,4 and accepted this created an evidential insufficiency;
(e)Mr AB countered with an application under s 147 of the Act. That hearing occurred against the background of my decision in X, and advice that morning that the Crown was also seeking leave to withdraw the charges against the final defendant, CD. This judgment addresses those competing applications;
(f)concerning Mr CD, the Crown had recently received further information about its key witness. This included advice that she had twice been charged with perverting the course of justice. These charges had not appeared on her criminal record because they were resolved by pleas to other charges. The Crown reached the view it could not call the witness, thereby again creating an evidential insufficiency;
(g)like Mr AB, Mr CD countered with an application for dismissal of the charges under s 147 of the Act. I heard that matter on 14 December, having given judgment in X, but not yet in relation to Mr AB. This judgment addresses these competing applications; and
(h)Mr X applied for recall of my judgment on the basis that it had been important to my conclusion that the forthcoming trial of AB and CD might be a source of evidence against Mr X. That trial no longer occurring, the matter should be revisited. The Crown agreed Mr X’s situation should be considered on the same basis as the other two defendants. That hearing also took place, separately from CD, on 14 December. This judgment will consider Mr X’s situation, albeit there will be a separate judgment on the recall application.
4 The Solicitor-General in August/September issued revised guidelines on when the Crown may lead such evidence. Mr Burston advises this prompted the re-evaluation.
What is the issue?
[5] In relation to serious offences, evidential insufficiency has traditionally been dealt with by way of a discharge or dismissal of the charges. The power previously resided in s 347 of the Crimes Act, but is now in s 147 of the Criminal Procedure Act. Under the former procedure, evidential sufficiency was first tested by a depositions process where the prosecution was required to show it had sufficient evidence to put the defendant on trial. If it failed at that stage, and so the defendant was not committed to trial, the prosecution could try again in the future.
[6] Once committed to trial, the termination options were verdict or a s 347 discharge. There were some other uncommon routes such as a stay of proceedings but the basic position was verdict or discharge. Where the Crown accepted, for whatever reason, it had insufficient evidence, a s 347 discharge was the typical termination route. It is also the method used to dispose of charges when a plea is accepted to some charges as an agreed method of settling all charges. The Crown offers no evidence on the remaining charges and a discharge is ordered. Section 147 of the Criminal Procedure Act continues this discharge power, with a difference being it runs from the time of charging, there no longer being a depositions process.
[7] A further termination option was introduced with the enactment of s 146 of the Act. It provides:
146 Withdrawal of charge
(1)The prosecutor may, with the leave of the court, withdraw a charge before the trial.
(2)The withdrawal of a charge under this section is not a bar to any other proceeding in the same matter.
[8] It is a new power. The important thing about it is that if leave is given and the charges are withdrawn, it is as if the defendant had not been charged. The police may continue to investigate, and if it is considered there is sufficient evidence, may again lay the same charges. An equivalent provision used to exist for minor offences but not in the way that s 146 that applies to all charges. I agree with counsel that the former limited power tended to be used where there were technical issues with the charge rather than to address evidential insufficiency.
[9] That said, s 146 is expressed broadly and without obvious limit. It will be for the Courts to explore the circumstances when its use is appropriate.
[10] In X, I addressed a submission by counsel that there was an inherent limit on s 146. It was contended that for offences covered by what I termed the retrial provisions, s 146 was not available to the Crown. Murder is such a charge.
[11] The retrial provisions (ss 151–156 of the Act) were first introduced into the law in 2008 where they resided in the Crimes Act until the enactment of the Criminal Procedure Act 2011. The retrial provisions set out circumstances where it is permitted to retry an acquitted defendant. This was a new development in the law. The retrial provisions set an exacting standard of new and compelling evidence, and require the Court of Appeal to give leave to commence such a prosecution. The retrial provisions apply only to specified offences. Other than these specified offences, an acquittal stands forever. The specified offences are, as one would expect, the most serious offences.
[12] It was argued in X that properly interpreted s 146 applied only to offences other than the specified retrial offences. Where the original charge was a specified retrial offence, the retrial provisions were intended to represent the only route by which a person once charged could be charged again. For reasons explained in X5 I did not accept the submission, regarding it as an unwarranted reading down of clear statutory language. It is unnecessary to repeat the analysis here, although I note it will be the only aspect of X that has any ongoing utility given the further analysis of the other matters undertaken in this judgment.
Relevant considerations
[13] There have been to date three High Court cases that have considered this issue of competing applications. In addition to my decision in X, Dunningham J has twice this year considered it in unrelated matters – R v Dronsfield,6 where leave to withdraw the charges was granted; and R v Fawcett7 where the application for a s 147 dismissal
5 Above n 3, at [18]–[21].
6 R v Dronsfield [2021] NZHC 2561.
7 R v Fawcett [2021] NZHC 2969.
was granted. Since my decision in X, I have also had the benefit of three further separate hearings where counsel have addressed the issue. All three decisions to date have proceeded on the basis that it is a case-specific assessment. The following is a list of potentially relevant considerations, no doubt not exhaustive, which draws on all those sources:
(a)the likelihood of further evidence emerging;
(b)the impact of the charges on the defendant. This includes matters such as the length of the period, what processes have happened such as a trial, whether there has been time in custody, and generally the effect of what has happened to date on the defendant;
(c)the reason for the evidential insufficiency arising;
(d)the seriousness of the charge;
(e)the existence of an ongoing investigation;
(f)the weight to be placed on the retrial provisions. This is twofold in the sense that they have the potential to impede further investigation but also can be seen as defining the circumstances in which there should be such an investigation; and
(g)the fact that a dismissal is the orthodox response.
Analysis
[14] The idea that s 147 is the orthodox response is not one to which I would now attach much weight. It was the orthodox response, but of course that was when there was no s 146, so there was no real choice. To the extent that “orthodox response” suggests there is a presumption, or that s 147 is the default position, I disagree.
[15] The very different contexts in which this issue of competing applications can arise are illustrated by the facts of R v Fawcett, where Dunningham J dismissed the charges under s 147, and the present case.
[16] Mr Fawcett was first questioned when he was aged 21. By the time of the final application he was aged 34. It was now appreciated, but not previously that he suffered from foetal alcohol syndrome. He stood trial in 2012 and was convicted, primarily on the basis of admissions he had made. He successful appealed, and then subsequent to that, in September this year, those admissions were excluded, thereby creating the evidential insufficiency.
[17] Mr Fawcett had accordingly been subject to the process for 13 years, had spent about nine and a half of those years in custody (much of his young adult life), and had been through a complete trial and appeal process. It was the Crown position that there remained some evidence implicating him but it was common ground there was no real prospect of further evidence.
[18] In terms of factors that point particularly to a s 147 dismissal, it is obviously a process that has extended over a significant period, has already involved a substantial period of incarceration and has involved a complete trial process. To contrast that with the present, although the offence occurred five years ago and the defendants were questioned, they were arrested only two years ago. Most of that time for each of them has been in custody but it has not culminated in a trial. Two years in custody is never to be minimised but overall it is not, in my view, a process that pushes one to a s 147 dismissal.
[19] Related to that must be the nature of the charges. One can readily imagine that the lesser the charges, and the more protracted or intense the process experienced to date, the more likely the response will be a s 147 dismissal. There is inevitably a proportionality assessment required. Even with a homicide one can see in Mr Fawcett’s case that spending basically all his twenties in custody is already a significant penalty. Putting the offence of murder to one side, as the seriousness of the charge decreases, the more likely it is that an assessment will be made that the process
to date may mean that a s 147 dismissal is the proper response. This will inevitably be a fact-specific inquiry since the process to date will be different from case to case.
[20] A prominent feature of the submissions before me has been the role of the retrial provisions. As noted, I have previously held those provisions do not mean leave to withdraw is unavailable for any offence that falls within their scope. That does not mean, however, their existence is to be put to one side.
[21] I accept that they provide a safety net against the deemed acquittal effect of a s 147 dismissal. As counsel urge, if evidence implicating the s 147 defendant does later emerge, there is a statutory process to be followed. Mr Lithgow QC, in his further submissions on the recall application, submits that these provisions draw a balance and reflect the public interest more than granting leave to withdraw under s 146 would do. The latter course allows the police to continue on the investigation, but so do the retrial provisions, albeit subject to safeguards Parliament has thought necessary to protect the interests of acquitted persons.
[22] I acknowledge the legitimacy of the submission, but consider there are other features of the retrial provisions that bear on the issue. In particular, s 153(1)–(3) provide:
153Consent of Solicitor-General required in certain circumstances for exercise of powers in relation to acquitted person
(1)Subsection (2) applies if a constable has good cause to suspect that information obtained, or likely to be obtained as a result of an investigation, will tend to implicate an acquitted person in the commission of a specified serious offence.
(2)If this subsection applies, a constable may exercise any of the powers referred to in subsection (3) in the course of a further investigation of whether the acquitted person has committed a specified serious offence only if a constable first obtains the consent of the Solicitor-General.
(3)The powers in respect of which subsection (2) applies are the following:
(a)questioning the acquitted person or any other person:
(b)searching the acquitted person or any other person:
(c)searching any premises or vehicles:
(d)seizing any thing:
(e)taking fingerprints or samples:
(f)conducting or commissioning forensic tests or analyses.
[23] What can be seen is that the limit on investigation thereby created goes beyond the acquitted person in that “any other person” may also not be questioned without the leave of the Solicitor-General if there is a suspicion that the questioning may lead to information tending to implicate the acquitted person. This is significant in a case such as the present where it is known that at least two direct offenders who entered Ms Tolley’s flat have not been charged and there is still some evidence implicating these three defendants.
[24] In my view, the strong protections afforded by the retrial provisions fit more obviously with a person who has stood trial and been acquitted by verdict than one who has not stood trial at all and who has a deemed acquittal by virtue of s 147.8 It is true the Solicitor-General may still authorise investigative action, but only if herself satisfied the protected step is likely to reveal new and compelling evidence. It is a very limited power to ameliorate what are significant investigative blocks.
[25] At least in the present case where there are known to be multiple offenders, some as yet uncharged, and an ongoing investigation of a homicide, I consider the effect of s 151(3) favours allowing the Crown to withdraw the charges rather than conferring acquitted person status on the defendants.
[26] The other main factor that has been considered relevant is the likelihood of further evidence. Dunningham J placed weight on this when allowing charges to be withdrawn in Dronsfield and I noted it as relevant in X. Concerning that case, Mr Lithgow submits it was the key factor in my decision, but I do not agree. The possibility of more evidence was accepted by me to be low and I was more influenced by s 153(3) and what I saw as a public interest in facilitating the ongoing investigation.
[27] On further reflection I am not attracted to the likelihood of further evidence being treated as a significant factor. In most cases, especially when the question arises near to trial, it will be very difficult to show there is an identifiable likelihood of further evidence. There will have already been a thorough investigation and it will be a rare
8 This discussion proceeds on the assumption that the reasons for evidential insufficiency do not point to the defendants’ innocence. If they did that then generally s 147 would be the obvious answer. It is unlikely there would be a s 146 application.
case that a major line of inquiry remains. I accept if it is such a rare case, then that would favour granting leave to withdraw but I am not persuaded the absence of such a likelihood should favour a dismissal of charges.
[28] I also consider the “likelihood of further evidence” is an unappealingly speculative basis on which to found this exercise of judicial discretion. The reality is that there will sometimes be other avenues to explore, and always past avenues to re- explore, but it cannot be known whether they will yield an unexpected item of evidence.
[29] The final matter addressed is the proposition that the reason for the evidential insufficiency is relevant. As advanced, this seeks to consider the prosecution conduct and presumably where that is considered deficient, a s 147 dismissal to be preferred. Here the primary submission is that the Crown should have recognised its evidential weaknesses much earlier.
[30] That is not a context I need to enter as I am not satisfied it makes a relevant difference to the issue of which application should be granted. Even if true, it does not outweigh the factors I have identified as more relevant. Traditionally criticism of a process, while sometimes necessary, does not drive termination outcomes.
Conclusion
[31] I have reached the view the correct outcome is to allow the Crown to withdraw the charges. I base this on:
(a)the serious nature of the charge;
(b)the fact it is an ongoing investigation with known other offenders yet to be identified or charged; and
(c)the impact of s 153 of the Act on the ongoing investigation.
[32] I do not consider the circumstances of the individual defendants tell against that outcome. They were first arrested around two years ago and have each spent most
of that time in custody.9 Two years in prison is not to be minimised, but I am not persuaded there would be a corresponding level of unfairness because of that in allowing the Crown to withdraw, such that the application for a dismissal should be favoured.
[33] Accordingly, I grant the Crown leave to withdraw the charges. That will mean there are no charges concerning which a dismissal could operate and for that reason I dismiss the applications by AB and CD. The application by X has already been dismissed.
[34] In a separate judgment I will decline his application for recall because the interests of justice do not require recall. The changed circumstances on which the application for recall was based, namely the collapse of the trial, does not for the reasons given in this judgment require a recall.
[35] The defendants have name suppression until trial. I have set the trial date, 8 February 2022, as the date by which applications for final suppression are to be filed. In the interim, name suppression continues. This judgment is not itself suppressed.
Simon France J
Solicitors:
Crown Solicitor, Wellington for Crown
9 There is evidence that events happened to AB during his time on remand custody that make that period of custody more difficult than it would have been otherwise. I record this so as to make it clear it has not been overlooked. The events need not be detailed.
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