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 When a charge is withdrawn under s 146, there is no bar to subsequent proceedings on the same charge.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…

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 Fawcett

Details

AGLC: R v Fawcett [2021] NZHC 2969
Case: [2021] NZHC 2969
Decision Date: 4 November 2021

CaseChat Overview and Summary

The case of R v Fawcett involved a defendant, Mauha Fawcett, who had been charged with the murder of Mellory Manning. The Crown sought leave to withdraw the murder charge under section 146 of the Criminal Procedure Act 2011, citing potential for new evidence to emerge in the future. Fawcett opposed the withdrawal and applied for the charge to be dismissed under section 147 of the CPA, which would result in a deemed acquittal. The court had to determine whether the charge should be withdrawn or dismissed.

The central legal issue was whether the murder charge should be withdrawn or dismissed. The Crown argued for withdrawal, highlighting the seriousness of the crime, indications of Fawcett’s involvement, an ongoing investigation, and the possibility of new evidence. The Crown also pointed to the public interest in pursuing the case further. Fawcett argued for dismissal, citing the lack of concrete evidence, the speculative nature of potential new evidence, and the significant impact the proceedings had on his life, including lengthy periods in custody and a previous unfair trial. Fawcett also highlighted his intellectual disability and the detrimental effects the case had on his mental wellbeing and dignity.

The court considered the arguments from both sides, ultimately concluding that the circumstances did not warrant withdrawal of the charge. The court found that the Crown’s reasons for seeking withdrawal were speculative and not compelling enough to justify the potential for future prosecution. The court emphasised the importance of finality in the criminal justice system and the significant impact the ongoing proceedings had on Fawcett, particularly given his intellectual disabilities and the lengthy period he had already spent in custody or on restrictive bail. The court determined that dismissal under section 147 was the appropriate course of action, as it provided certainty to Fawcett and aligned with the principle of finality in criminal proceedings.

The court granted the application to dismiss the murder charge under section 147 of the CPA, deeming it an acquittal. This decision provided Fawcett with the finality he sought and recognised the significant impact the proceedings had on his life.

Orders