Rewa v The Attorney-General of New Zealand

JurisdictionNew Zealand
JudgeVenning J
Judgment Date09 May 2018
Neutral Citation[2018] NZHC 1005
Docket NumberCIV-2018-404-000238
CourtHigh Court
Date09 May 2018

Under The Judicial Review Procedure Act 2016

In the Matter of an application for judicial review

Between
Malcolm Rewa
Plaintiff
and
The Attorney-General of New Zealand
Defendant
Between
The Queen
and
Malcolm Rewa
Accused

[2018] NZHC 1005

CIV-2018-404-000238

CRI-1997-404-198997

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA

TĀMAKI MAKAURAU ROHE

Criminal, Judicial Review — the plaintiff faced a charge of murder — victim died in 1996 — Teina Pora convicted — application for a substantive application for judicial review of a decision by the defendant to lift a stay of proceedings against him in relation to the charge of murder — in the criminal proceedings the plaintiff sought an order reaffirming the stay of the indictment against him

Appearances:

P Chambers for Plaintiff

G Kayes and Z Hamill for Crown

Counsel:

P Chambers, Auckland

JUDGMENT OF Venning J

Introduction
1

Malcolm Rewa faces a charge of murder. He brings two applications to the Court: first, a substantive application for judicial review. He seeks to review the decision by the Attorney-General to lift a stay of proceedings against him in relation to the charge of murder. Second, in the criminal proceedings he seeks an order “reaffirming the stay of the indictment against him”.

Factual and procedural background
2

On 23 March 1992 Susan Burdett was raped and murdered in her home at Papatoetoe. She had been beaten to death with a blunt object. As part of the homicide investigation that followed the discovery of her body on 25 March 1992, vaginal swabs were taken in which semen was detected. At that time the DNA contained in the swabs did not match anyone in the Police databank.

3

In 1996 the DNA located from the vaginal swabs taken from Ms Burdett were found to contain Malcolm Rewa's DNA. He was arrested and charged with her rape and murder on 13 May 1996. He was also charged with sexual and violent offences against a number of further complainants. By the time Malcolm Rewa was arrested and charged, Teina Pora had been convicted of the rape, murder and aggravated burglary of Ms Burdett (his trial having taken place between 7 and 15 June 1994).

4

Malcolm Rewa stood trial on all charges between 9 March 1998 and 30 May 1998. He was convicted of sexual assaults on multiple complainants but the jury failed to agree with respect to the charges of rape and murder concerning Ms Burdett.

5

A second trial was held between 7 and 17 December 1998 concerning the Burdett charges alone. The jury convicted Mr Rewa of rape but failed to agree on the charge of murder.

6

On 23 December 1998 the Solicitor-General entered a stay of proceedings in respect of the murder charge against Mr Rewa pursuant to s 378 of the Crimes Act 1961.

7

On 18 October 1999, Teina Pora successfully appealed his convictions for the rape, murder and aggravated burglary of Ms Burdett. He was convicted following a re-trial held between 20 March and 6 April 2000. Following an appeal to the Privy Council in 2014, Mr Pora's convictions were quashed on 3 March 2015. No retrial was sought by the Crown (on the grounds of public interest) and on 30 March 2015 the Privy Council directed that no re-trial should be held. In June 2016 Mr Pora was found on the balance of probabilities to be innocent of the offending in a compensation review conducted by Rodney Hansen QC.

8

On 16 May 2017 the Police wrote to Mr Rewa to advise him that an application was to be made at the High Court to seek to retry him for the murder of Susan Burdett.

9

On 15 November 2017 the Deputy Solicitor-General, acting under delegated authority from the Attorney-General, directed that the proceedings against Mr Rewa stayed on 23 December 1998 were no longer stayed.

10

The Crown filed a memorandum with the Court on 21 November 2017, accompanying the Deputy Solicitor-General's reversal of the stay of proceedings. The Crown sought a call before the Court to confirm the appointment of counsel and to timetable any pre-trial hearing dates. The case has been called before the Court on a number of occasions. Mr Chambers represents Mr Rewa and the retrial has been set for hearing on 11 February 2019.

Preliminary issue
11

At the outset of the hearing I sought to clarify with Mr Chambers what was meant by the application in the criminal proceedings for an order “reaffirming the stay of the indictment against the defendant”. Mr Chambers advised that the application sought to reinstate or reaffirm the Solicitor-General's stay. That raises a procedural issue. If the judicial review succeeds, there is no need for such order. If the judicial review fails there appears to be no juridical basis for this Court to reinstate the Solicitor-General's stay.

12

Importantly, Mr Chambers confirmed that the application was not an application to this Court for stay either under s 147 of the Criminal Procedure Act 2011 or in reliance on the Court's inherent jurisdiction. Mr Chambers indicated that such an application might, if necessary, be made in the future, but he was not in a position to advance such an application at present. He suggested evidence might be required for such an application.

13

Although the Crown was prepared to argue the merits of an application by Mr Rewa to this Court for an application for stay of the proceedings, either under s 147 of the Criminal Procedure Act or in the exercise of the Court's inherent jurisdiction, as Mr Chambers was not in a position to argue an application on that basis, the Court could not take it any further at present.

14

As a result the focus was on the application for judicial review.

The application for judicial review
15

In summary, the grounds for judicial review are:

  • (a) that the decision to remove the stay on the indictment against Mr Rewa was invalid as the Attorney-General has no statutory or other power to lift the stay against Mr Rewa; and

  • (b) that the decision to remove the stay was invalid and unreasonable because it was contrary to the earlier advice by the Police in the letter of 16 May 2017 advising that the Crown Solicitor would seek to lift the stay in the High Court. The Attorney-General was required to make application to the Court to lift the stay.

16

In a joint consent memorandum for a case management conference on this file the parties confirmed that:

The parties agree that the issue for the judicial review application is whether the Attorney-General has the power to reverse a stay of proceedings. Given this is a solely legal issue neither party has filed evidence.

Issues
17

The application for judicial review raises the following issues:

  • (a) the nature of the Attorney-General's power to stay criminal proceedings;

  • (b) whether the Attorney-General has power to lift a stay previously made;

  • (c) whether a challenge by way of review to the exercise of the power is justiciable; and

  • (d) if so, whether the decision to lift the stay should be set aside in the present case.

The nature of the power
18

The nature of the Attorney-General's power to stay proceedings was considered in some detail in Daemar v Gilliand. 1 McMullin J discussed the background to the power as follows: 2

The power to stay proceedings was never subject to the control of the prerogative writs. Neither was it originally a creature of statute. It was part of the prerogative which has long been vested in the Attorney-General in England. There is nothing in the statutory provisions to which I have referred nor in s 378 of the Crimes Act 1961 which would suggest that in New Zealand the position is otherwise. The nature of the power was discussed in R v Allen (1862) 1 B & S 850; 121 ER 929, where a stay of proceedings had been entered by the Attorney-General on an indictment. The prosecutor had then moved for a rule calling upon the defendant to show cause why the prosecutor should not be at liberty to proceed to the trial of the indictment notwithstanding the stay. It was claimed that the stay had been entered irregularly, that the indictment could still be enforced and that the Attorney-General had no power to enter a stay without calling upon the prosecutor and hearing the parties. Cockburn CJ said:

“It is an undoubted power of the Attorney General as representative of the Crown in matters of criminal judicature, to enter a nolle prosequi, and thereby to stay proceedings in indictment or criminal proceeding. No instance has been cited, and therefore it may be presumed that none can be found, in which, after a nolle prosequi has been entered by the fiat of the Attorney General, this Court has taken upon itself to award fresh process or has allowed any further proceedings to be taken on the indictment”.

McMullin J went on to note: 3

All textbook writers and commentators would now appear to accept as beyond question that the Attorney-General has the right to stay proceedings and Professor Edwards in discussing the role of the Attorney-General refers to his right to enter a nolle prosequi as being “incontestable”, at p 226, and says:

“The significant absence of any judicial control by the courts over the decisions made by the principal Law Officer of the Crown within this general area was thoroughly canvassed by the Court of Appeal in ex parte Tomlinson [sub nom R v Comptroller-General of Patents [1899] 1 QB 909] in 1899.”

In that case, A L Smith LJ said:

“Another case in which the Attorney-General is pre-eminent is the power to enter a nolle prosequi in a criminal case. I do not say that when a case is before a judge a prosecutor may not ask the judge to allow the case to be withdrawn, and the judge may do so if he is satisfied that there is no case, but the Attorney-General alone has the power to enter a nolle prosequi, and that power is not...

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