R v Fawcett

[2021] NZHC 2969

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2012-004-5233

[2021] NZHC 2969

THE QUEEN

v

MAUHA FAWCETT

Hearing:

26 October 2021

Appearances:

M N Zarifeh and B Hawes for Crown

C W J Stevenson and J V Kane for Defendant

Judgment:

4 November 2021

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 4 November 2021 at 10.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

R v FAWCETT [2021] NZHC 2969 [4 November 2021]

[1]    On 14 September 2021 I issued a judgment ruling five interviews which     Mr Fawcett gave between 10 August 2009 and 29 March 2012 inadmissible under s 28 of the Evidence Act 2006 on the ground they were unreliable.

[2]    The Crown has not sought to appeal the judgment. It accepts that, with the exclusion of those statements, the evidential test to prosecute Mr Fawcett for murder is no longer met, although the Crown says there remains some evidence of his involvement in the murder.

[3]    In the circumstances, the Crown sought the Court’s leave under s 146 of the Criminal Procedure Act 2011 (CPA) to withdraw the murder charge. When a charge is withdrawn under s 146, there is no bar to subsequent proceedings on the same charge.

[4]    Mr Fawcett opposed the withdrawal of the murder charge. He applied for it to be dismissed pursuant to s 147 CPA. A dismissal of a charge under s 147 is deemed an acquittal.1 The only route by which the Crown could charge Mr Fawcett again over Mellory Manning’s murder would be under s 154 CPA which provides a narrow exception to the normal prohibition on being retried following a deemed acquittal. It involves an application by the Solicitor-General to the Court of Appeal, and the order for retrial may only be granted if the Court of Appeal is satisfied that:

(a)there is new and compelling evidence to implicate the acquitted person in the commission of the specified serious offence; and

(b)a further trial of the acquitted person is in the interests of justice.

[5]    On 26 October 2021 I granted the application to have the charge dismissed under s 147. I now provide my reasons for doing so.

1      Criminal Procedure Act 2011, s 147(6).

Crown submissions

[6]    Mr Zarifeh submitted the following factors were relevant to support the Crown’s application to withdraw the murder charge:

(a)The seriousness of the crime with which Mr Fawcett was charged.  Ms Manning was subject to a brutal and sustained attack, likely carried out by a number of perpetrators and involving a number of independently fatal injuries.

(b)Although the evidence against Mr Fawcett is presently insufficient to meet the evidential test, there are indications of his involvement which include:

(i)evidence of his presence and activity on Manchester Street immediately prior to Ms Manning’s murder; and

(ii)comments to associates afterwards.

(c)There remains an open and active investigation into Ms Manning’s murder which could reasonably result in further evidence being obtained, in particular, the identification of male B who is alleged to have raped Ms Manning at the time of her murder.

(d)The Crown case has always been that this was a joint enterprise involving a number of offenders, Mr Fawcett being a joint principal or party.

[7]    While the Crown acknowledges it could potentially bring a further prosecution pursuant to s 154 CPA, it says that evidence could become available which might not meet the s 154 test, but would still support a prosecution. The Crown says it would be in the public interest to be able to proceed in that situation.

[8]    While the Crown acknowledges that a significant period of time has passed since Ms Manning’s murder, during which Mr Fawcett has faced a trial and periods of

imprisonment and has had the murder allegation hanging over him, it says this is an exceptional case and the public interest requires that he be returned to the position he was in prior to being charged in case new evidence arises to support a murder charge against him.

Submissions for the defendant

[9]    Mr Stevenson submits that dismissal of the charge under s 147 is the “orthodox” outcome when the Crown acknowledges it has insufficient evidence to proceed with a charge. In Mr Stevenson’s submission, the suggestion that the police may uncover new evidence is wholly speculative and this distinguishes it from cases where the Court have allowed the charge to be withdrawn under s 146 CPA. While the Crown continues to work towards identifying male B, that would not assist, in and of itself, in proving Mr Fawcett’s involvement. Mr Fawcett was never considered to have raped Ms Manning, and he and known Mongrel Mob members have been excluded as Male B. For this reason, this fact does not support the use of s 146 CPA over s 147.

[10]   Furthermore, there is significant protection for the Crown afforded by s 154 CPA. If there is new and compelling evidence against Mr Fawcett such that would mean it was in the interests of justice to order a retrial, the Crown can rely on s 154 and it does not need to utilise s 146 to preserve the possibility of prosecution.

[11]   In terms of Mr Fawcett’s personal circumstances, Mr Stevenson points to a number of factors that he considers support the dismissal of the charges. In particular, under s 25(b) of the New Zealand Bill of Rights Act 1990, there is a right to be tried without undue delay. In this case there was a delay of some three years between the offending and Mr Fawcett being charged. Following this Mr Fawcett has been through a trial and, three years later, an appeal where his conviction was quashed.  Nearly five years have elapsed since this appeal and it is likely any future proceedings would be significantly prolonged whilst the investigation continues. In Mr Stevenson’s submission, given the extensive period of time which has elapsed and the number of Court proceedings Mr Fawcett has had to go through, a s 146 order would be inconsistent with his fundamental right to a fair and expedient trial.

[12]   In addition, there would be unfair prejudice to Mr Fawcett if the charge was simply withdrawn. He has already suffered significant prejudice and interference with his life as a result of these proceedings over the last 13 years. While Mr Fawcett was granted bail on 25 August 2017, he has spent much of the time since being charged, in custody. He was also convicted after what Mr Stevenson says was an unfair trial which has detrimentally impacted on his liberty, mental wellbeing and dignity. This detrimental impact would continue if the charge was not dismissed.

[13]   In Mr Stevenson’s submission, finality is a core component of a criminal justice system, citing the Court of Appeal in Lyon v R where it was said:2

[12] Finality is also important in the criminal context where the interests at stake are those of the community (represented by the Crown), the defendant and the complainant.

Mr Stevenson emphasised that for a number of years Mr Fawcett has suffered through having the prospect of Court proceedings which has led to significant mental anguish and difficulties in his  ability  to  live  in  the  community.  This  has  impacted  on Mr Fawcett’s dignity and his mana, and he is entitled now to find finality and balance, as embodied in the tikanga concept of ea.3

[14]   Mr Stevenson then referred to two cases which discussed whether dismissal or withdrawal of a charge was more appropriate. In R v Edmonds, largely  due to the two other victims being unwilling to provide statements, the Crown sought to withdraw the charges against two co-defendants under s 146 of the CPA.4 Fogarty J held it was possible, albeit unlikely, that the victims, who were members of another gang, might change their code and assist the police by providing statements of the charges.5 For that reason, he allowed withdrawal of the charges under s 146, but did so on condition that, should the Crown seek to relay the charges, it would need to do so within one calendar year of the withdrawal.6

2      Lyon v R [2019] NZCA 311, [2019] 3 NZLR 421.

3      A Māori word meaning paid for, avenged, done, P M Ryan The Raupō Dictionary of Modern Māori (3rd ed, Penguin Group, Auckland 2008) at 46.

4      R v Edmonds [2016] NZHC 2908.

5      At [14] and [17].

6 At [18].

[15]   Recently,  I  allowed  withdrawal  of  charges  against  one  co-defendant,   Mr Dronsfield, who was charged along with two co-defendants of attempted murder, wounding with intent to cause grievous bodily harm (in the alternative) and unlawful possession  of  a  firearm.7  However,  in  that  case,  there  was  evidence  against  Mr Dronsfield, but it was inadmissible because it was the evidence of his co-defendants. Furthermore, there was a possibility that further evidence could emerge at trial including from the victim who had been subpoenaed. For that reason, I considered it was in the interests of justice for the Crown to reconsider whether to charge Mr Dronsfield following the trial and in light of the totality of evidence which was available at that time.

[16]   I accept the position is different in the present case. There is no obvious prospect of evidence emerging which would implicate Mr Fawcett now that his own statements have been ruled inadmissible. More importantly, I have had regard to the time that has passed since Mr Fawcett was first treated as a suspect in the case and the impact of this on Mr Fawcett, whom we now know suffers from foetal alcohol spectrum disorder. When he was first questioned over Ms Manning’s murder he was

21. He is now 34. He was charged in March 2012 where he was remanded in custody and he was found guilty by a jury in March 2014. It was not until August 2017 that his appeal was allowed and, since then, he has been alternately on restrictive bail conditions (including EM bail) or in prison, when, for various reasons, he could no longer stay at an approved bail address. In short, he has either been imprisoned or on restrictive bail for nine and a half years of his young adult life. In my view, the fact that someone with his intellectual disabilities has been living with either a charge of murder, or a conviction for murder, for nine and a half years, is a compelling reason to give him certainty that he would not be charged again unless evidence came to light which met the stringent threshold of s 154 CPA.

[17]   The Crown acknowledges that in the absence of the defendant’s video interviews, which have been ruled inadmissible, there is insufficient evidence for a properly directed jury to reasonably convict the defendant. In these circumstances, I accept that the orthodox position is to dismiss the charge of murder. This is not a case,

7      R v Dronsfield [2021] NZHC 2561.

such as in Dronsfield, where there is a real prospect of evidence becoming available, in a timely way, sufficient to support the charge sought to be withdrawn by the Crown.8 The only realistic line of inquiry on the murder investigation is identifying male B and that, in and of itself,  is not suggested to  provide evidence which would support    Mr Fawcett being prosecuted as a party to murder.

[18]   For all these reasons, I consider the only appropriate course of action is to dismiss the charge of murder under s 147 and this was the result of my oral judgment given in Court on 26 October 2021.

Solicitors:
Raymond Donnelly & Co., Christchurch

Copy To:

C W J Stevenson, Barrister, Wellington K H Cook, Barrister, Christchurch

J V Kane, Barrister, Wellington

8      R v Dronsfield, above n 7.