R v AB and CD - [2021] NZHC 3524

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v AB and CD

Details

AGLC: R v AB and CD [2021] NZHC 3524
Case: [2021] NZHC 3524
Decision Date: 17 December 2021

CaseChat Overview and Summary

This case involves the Crown's application for leave to withdraw charges of murder against two defendants, AB and CD, and the defendants' applications for a dismissal of charges under section 147 of the Criminal Procedure Act 2011. The defendants are charged in relation to the murder of Ms Lois Tolley in 2016. The Crown has accepted that it has insufficient evidence to sustain a guilty verdict. The defendants' applications are considered in light of the Crown's application, and the court must determine which application should be granted.

The legal issue before the court is how to dispose of the present charges in the context of competing applications. The court must consider the relevant factors in deciding whether to grant the Crown leave to withdraw the charges under section 146 of the Criminal Procedure Act 2011 or to dismiss the charges under section 147, which would constitute a deemed acquittal. The court must also consider the impact of the retrial provisions on its decision.

The court considered various factors, including the likelihood of further evidence emerging, the impact of the charges on the defendant, the reason for the evidential insufficiency arising, the seriousness of the charge, the existence of an ongoing investigation, and the weight to be placed on the retrial provisions. The court found that the serious nature of the charge, the fact it is an ongoing investigation with known other offenders yet to be identified or charged, and the impact of section 153 of the Act on the ongoing investigation were relevant factors in favour of granting the Crown leave to withdraw the charges. The court also found that the defendants' time in custody did not weigh in favour of dismissing the charges.

The court granted the Crown leave to withdraw the charges, meaning that there are no charges concerning which a dismissal could operate. The court dismissed the applications by AB and CD and declined the application by X for recall because the interests of justice did not require recall.

This decision highlights the importance of considering the relevant factors when deciding between competing applications for leave to withdraw charges or dismissal of charges under section 147 of the Criminal Procedure Act 2011. The court's decision in this case demonstrates the importance of balancing the interests of the defendant, the public, and the ongoing investigation when making its decision.

Orders