IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA
TĀMAKI MAKAURAU ROHE
CIV-2018-404-000238
[2018] NZHC 1005
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
CRI-1997-404-198997

BETWEEN

THE QUEEN

AND

MALCOLM REWA
Accused

Hearing:

2 May 2018

Appearances:

P Chambers for Plaintiff
G Kayes and Z Hamill for Crown

Judgment:

9 May 2018

JUDGMENT OF VENNING J
This judgment was delivered by me on 9 May 2018 at 4.00 pm, pursuant to Rule 11.5 of the High
Court Rules.
Registrar/Deputy Registrar
Date……………

Solicitors:
Counsel:

Crown Solicitor, Manukau
Henley-Smith Law, Auckland
P Chambers, Auckland

REWA v THE ATTORNEY-GENERAL OF NEW ZEALAND [2018] NZHC 1005 [9 May 2018]

 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

1
2
3

Daemar v Gilliand [1979] 2 NZLR 7 (SC).
Daemer v Gilliand, above n 1, at 27.
Daemer v Gilliand, above n 1, at 28 (footnotes omitted).

 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 subject to any control".

And further:
Writing in (1972) 35 MLR 347, Bernard M Dickens said:
"There is a distinction, however, in that nolle prosequi is a prerogative
matter which the courts cannot control . . ."

McMullin J went on to cite from Gouriet v A-G.4 In that case Viscount Dilhorne
said:
"The Attorney-General has many powers and duties. He may stop any
prosecution on indictment by entering a nolle prosequi. He merely has to
sign a piece of paper saying that he does not wish the prosecution to
continue. He need not give any reasons".

And:
"In the exercise of these powers he is not subject to direction by his
ministerial colleagues or to control and supervision by the courts".

[19]

There have been various iterations of the statutory provision confirming the

common law power to stay proceedings in New Zealand: for example, s 435 of the
Crimes Act 1908, s 378 of the Crimes 1961 and most recently s 176 of the Criminal
Procedure Act.
[20]

The authorities cited confirm the power as a prerogative of the Attorney-

General. Section 176 of the Criminal Procedure Act and the preceding sections under
the Crimes Act 1908 and 1961 do not create the power, rather they provide statutory
4

Daemer v Gilliand, above n 1, at 29, citing from Gouriet v A-G [1978] AC 435 (HL).

 confirmation of the common law power of the Attorney-General to enter a nolle
prosequi. The statutory provision recognises rather than vests the common law power
in the Attorney-General in relation to the stay of criminal proceedings.
A review of other jurisdictions confirms the nature of the power. As noted in

[21]

the United Kingdom the Attorney-General’s ability to enter a nolle prosequi remains
a common law and royal prerogative power. It is not referred to in statute at all.5
In Australia the power to enter a nolle prosequi is recognised in different ways

[22]

in state legislation in Queensland, Northern Territories, South Australia, Tasmania and
Victoria. New South Wales, Australian Capital Territories and Western Australia are
silent regarding the operation of the power but the High Court has confirmed the power
exists.6
[23]

The Canadian Criminal Code confirms the power which the Courts recognise

as deriving from the common law.7
[24]

Finally on the nature of the power, it is important to distinguish the prerogative

power of the Attorney-General to stay a proceeding from the inherent jurisdiction this
Court has to stay criminal proceedings to prevent an abuse of process. One resides
with the Attorney-General, the other with this Court. They are quite separate and
distinct powers.
Does the Attorney-General have power to lift a stay?
[25]

The next issue is whether the Attorney-General’s power in relation to the stay

extends to and includes a power to lift the stay without first obtaining leave of the
Court. The common law power extends to the power to lift a stay or to recommence
criminal proceedings. Section 176 of the Criminal Procedure Act is silent on the issue.
Does the fact the power is recognised by statute extinguish the Attorney-General’s
power to lift the stay? In large part the answer lies in the effect of the power.

5

6
7

John Edwards, The Attorney-General, politics and the public interest (Sweet & Maxwell, London,
1984) at 444-445.
Davis v Gell (1924) 35 CLR 275; and Broome v Chenoweth (1946) 73 CLR 583.
Boudreault v Barrett (1993) 140 AR 24 (ABQB).

 [26]

In R v Glover Wild J cited with approval the following passage from D v R as

to the effect of the power.8 It is different from a discharge or acquittal.
The essence of a stay under s 378 is fundamentally different from a discharge
or an acquittal. It forbids the taking of any further step in relation to the trial.
It is not an adjudication on whether the accused is or is not likely to be found
guilty: it may be entered for reasons wholly unassociated with that question.

[27]

In Broome v Chenoweth Dixon J stated [a nolle prosequi] was:9
… well understood at common law to amount to a termination of proceedings
without an adjudication and creating no bar to a subsequent suit.

[28]

More recently, in R v Swingler the Victorian Supreme Court applied the dicta

from Broome v Chenoweth holding that:10
There is no case of which we have been made aware in which it has been held
to be an "oppressive use of the court's process" that the Crown has presented
a person for trial for an offence in respect of which a nolle prosequi has been
previously entered. This is not surprising because the entry of a nolle prosequi
is not in law or in fact an official act by the executive amounting to a promise
or representation that the accused will not be presented again on the same
charge. It is not tantamount to an acquittal: … It is an act "well understood at
common law to amount to a termination of proceedings without an
adjudication and creating no bar to a subsequent suit": … Although, as we
have been told, it is an act which, at least in Victoria, normally leads to the
termination of proceedings, it does not and cannot carry with it a promise or
representation of immunity from suit.

[29]

The Court went on to hold that:11
it would … place an intolerable fetter on the exercise of this valuable power
… if the court were readily to accede to an application that its processes were
being abused for no reason other than that an accused was re-presented on a
charge in respect of which a nolle prosequi had previously been entered.

[30]

In Canada the Criminal Code expressly provides that proceedings stayed may

be recommenced without laying a new information or proffering a new indictment
provided notice is given within a year or before the expiration of time within which
they could have been commenced (whichever is earlier). Otherwise fresh proceedings
are required. There is however, no bar to the issue of fresh proceedings outside those
8

9
10
11

R v Glover [2010] 2 NZLR 698 (HC) at [23], citing D v R HC New Plymouth T3/96, 24 September
1997 at 5-6.
Broome v Chenoweth, above n 6, at 599.
R v Swingler [1996] 1 VR 257, at 265 (footnotes omitted).
R v Swingler, above n 10, at 265-266.

 time limits. It has been held that the statutory provision effectively does no more than
resolve uncertainty as to the correct procedure rather than create a power to
recommence the proceedings.12
[31]

As a stay entered under s 176 of the Criminal Procedure Act does not amount

to an acquittal there is no procedural bar to the Attorney-General lifting the stay and
the Crown pursuing the charge. In the absence of any statutory provision restricting
the Attorney-General’s power, the common law power to lift the stay still exists. It
remains unaffected.
[32]

Mr Chambers pointed out that in Tasmania the legislature expressly provides

for the accused person to be again indicted upon a fresh indictment.
[33]

The fact s 176 does not provide a process for the stay to be lifted does not affect

the nature or effect of the stay. Section 176 does no more than confirm, in statutory
form, the Attorney-General’s common law power to direct a stay. The fact section 176
does not provide for the lifting of a stay is no impediment to the Attorney-General
lifting the stay. There is no statutory provision which extinguishes the common law
power to reverse a stay or which otherwise limits the operation of the AttorneyGeneral’s prerogative.
Is the exercise of the power reviewable?
[34]

As Ellis J recently observed in Pora v Attorney-General the potential for

review of prerogative powers depends on the nature and quality of the power
concerned.13
[35]

In Daemer v Gilliand McMullin J considered that the exercise of the

prerogative power to stay proceedings was not reviewable by the Court.14 McMullin J
held that:15

12
13
14
15

Dowson v R [1983] 2 SCR 144.
Pora v Attorney-General [2017] NZHC 2081, [2017] 3 NZLR 683 at [93].
Daemer v Gilliand, above n 1.
At 27.

 the procedure of review is not open to the applicant there being neither a
"refusal to exercise", nor a "proposed or purported exercise" by the SolicitorGeneral of a statutory power as defined in s 3 of the Act …

[36]

In Tindal v Muldoon O’Regan J noted the change in wording under the

Judicature Amendment Act 1972 (after the hearing in Daemer) to include the reference
to “affecting” in the definition of a statutory power of decision16 and considered the
power to grant a stay was reviewable.17
[37]

In Amery v Solicitor-General the Court of Appeal acknowledged that a

decision to stay a proceeding could be seen as the exercise of a statutory power and
noted there was “a good deal that can be said in favour of the conclusion that it is
reviewable” but did not ultimately need to decide the question.18
[38]

In R v Barlow, on the slightly different point of whether the decision not to

intervene was reviewable, a full Court of this Court noted:19:
The decision not to enter a stay is not as a matter of law a decision to bring or
proceed with a prosecution. It is the decision of the Law Officer whether to
intervene in a prosecution that is already on foot to stop it proceeding further.
The decision is not subject to appeal and there is argument whether a decision
to act by entering a stay can be reviewed by the Court: in Daemar v Gilliand
McMullin J held that it is not reviewable under the Judicature Amendment
Act; in Amery v Solicitor-General Cooke P for the Court said that the decision
arguably can be reviewed. No authority has been referred to, and we are not
aware of any, to suggest that the Law Officer’s decision not to intervene is
amendable to review by the Court, although it is argued that s 27 of the New
Zealand Bill of Rights Act 1990 may now provide a basis on which such a
decision may be reviewed by the Court.

[39]

There is a good argument that if, as seems accepted, the Attorney-General’s

power to grant a stay is reviewable, the decision to lift a stay should be reviewable as
well. In any event, for present purposes the Crown accept the decision is justiciable
and reviewable.

16
17
18
19

Judicature Amendment Act 1972, s 3.
Tindal v Muldoon HC Auckland A.383/83, 7 November 1983.
Amery v Solicitor-General [1987] 2 NZLR 292 (CA).
R v Barlow (1995) 13 CRNZ 503 (HC) at 507 (footnotes omitted).

 Application to the present case
[40]

Mr Chambers submitted the Attorney-General should be required to apply to

the Court to lift the stay. He argued there will inevitably be some procedural unfairness
in pursuing a trial after this length of time. He submitted the Crown should establish
there was fresh evidence, a change in circumstances or some other reason to permit
the change in stance. He submitted that in the absence of anything of that nature the
Attorney-General had not satisfied the obligation on him in lifting the stay. However
those submissions confuse the distinction between the Attorney-General’s power in
relation to the stay and this Court’s jurisdiction to direct a stay in the exercise of its
inherent jurisdiction.
[41]

This Court undoubtedly has an inherent jurisdiction to stay or dismiss a

prosecution for abuse of the process of the Court but that involves different
considerations to those which apply to the exercise of the Attorney-General’s
prerogative power.20
[42]

In Moevao v Department of Labour Richardson J emphasised the importance

of the distinction between the decision to prosecute, which was a matter of
administrative law, and the abuse of process doctrine as a matter of criminal
procedure.21 Mr Chamber’s submissions are more apposite to an application to this
Court to stay the proceeding which could also engage consideration under s 25, New
Zealand Bill of Rights Act 1990.
[43]

Mr Chambers also relied on the following passage from the case of Tindal v

Muldoon where O’Regan J said:22
I pause to comment that the power under s 378 of the Crimes Act 1961 not
only puts in statutory form the prerogative power to stay proceedings on
indictment but also it gives “statutory extension” – to use the author’s
expression – in substance identical to that contained in sections 77A and 173
of the Summary Proceedings Act, to enter a stay of proceedings “at any time
after any person has been committed to the High Court for trial or for
sentence.” – or in other words after committal to the High Court but before
the presentation of an indictment. And it seems to me as a matter of simple
logic that that part of s 378 must needs be treated for all purposes in the same
20
21
22

Moevao v Department of Labour [1980] 1 NZLR 464 (CA).
Moevao v Department of Labour, above n 20.
Tindal v Muldoon, above n 17, at 11.

 fashion as sections 77A and 173. That part of s 378 and the other two sections
are all statutory powers, conferred upon the Attorney General to stay
proceedings additional to and beyond the prerogative power which before the
enactment of s 378 he exercised in the name of the Crown. And it also seems
to be illogical that one part of s 378 should be treated differently from another;
that the exercise of the pre-indictment power should be reviewable and the
post indictment power not.

[44]

However, O’Regan J’s comments were against the background of the Judge’s

consideration of whether, in light of the comments of McMullin J in Daemar v
Gilliand the decision of the Solicitor-General to stay proceedings was reviewable by
the Court. As noted, Mr Kayes accepts that the decision is justiciable and reviewable,
but on limited grounds. Tindal v Muldoon is not authority for the proposition which
Mr Chambers seeks to advance, namely that the Attorney-General was required to
apply to this Court for leave to lift the stay.
[45]

The extent of the Court’s powers of review of prosecutorial discretion were

recently considered by the Court of Appeal in Osborne v Worksafe New Zealand.23
The Court stated the principles to apply to review of prosecutorial discretion. The
Court held that there were good reasons for the exercise of judicial restraint in the
review of prosecutorial discretion. They included:
[34]
First, good reasons exist for the exercise of judicial restraint in the
review of prosecutorial discretion. These include:
(a)

the importance of observing constitutional boundaries,
including the Executive’s role in deciding whether to
prosecute, and the Courts’ role in ensuring the proper and fair
conduct of trials;

(b)

the high content of judgment and discretion in prosecutorial
decisions;

…
(d)

the High Court’s inherent power to stay or dismiss a
prosecution for abuse of process; …

[35]
Secondly, the exercise of restraint – which relates to the scope and
standard (or intensity) of review, and to the availability and scope of relief –
is not to be confused with the issue of justiciability. The latter concerns
whether the Courts are prepared to intervene at all in the exercise of their
constitutional responsibility to review aspects of Executive action. As will
become apparent in the discussion that follows, the exercise of prosecutorial

23

Osborne v Worksafe New Zealand [2017] NZCA 11, [2017] 2 NZLR 513.

 discretion is justiciable. The Courts are prepared to review Executive action
of that nature.
But the intensity of review, and availability of relief, will be constrained for
the reasons set out in the preceding paragraph. …
… a prosecutorial decision will generally be justiciable, albeit the intensity of
review and remedial response may be restricted.
[36]
Thirdly, a stronger case for restraint exists where the prosecutorial
decision is to prosecute. The risk of collateral interference with the criminal
justice system is greater. The rights or wrongs of the prosecution, so far as the
culpability of its subject are concerned, will be established by the conclusion
of the criminal case.

[46]

The Supreme Court did not take issue with those propositions.24

[47]

The reasons for the Attorney-General’s decision to lift the stay are contained

in the reversal of stay of proceedings dated 15 November 2017:
WHEREAS an indictment was filed in the High Court (Auckland Registry)
alleging inter alia that MALCOLM REWA murdered SUSAN GAIL
BURDETT on or about 23 March 1992;
AND WHEREAS on 30 May 1998, a jury was unable to agree on a verdict in
relation to that charge;
AND WHEREAS on 17 December 1998, following a second trial, a jury was
again unable to agree on a verdict in relation to that charge;
AND WHEREAS it had been made to appear to Her Majesty’s SolicitorGeneral for New Zealand that the ends of justice would best be answered if
further proceedings upon the said charge were stayed.
AND WHEREAS Her Majesty’s Solicitor-General for New Zealand on 23
December 1998 directed an entry be made in the Criminal Records that further
proceedings on the said indictment be stayed by his direction;
AND WHEREAS TEINA PORA’s conviction for the murder of SUSAN
GAIL BURDETT has been quashed;
AND WHEREAS there is now no one held to account for the murder of
SUSAN GAIL BURDETT;
AND WHEREAS the conviction of TEINA PORA was operative at the time
of both of MALCOLM REWA’s trials;
AND WHEREAS there remains evidential sufficiency supporting the charge
of murder against MALCOLM REWA;

24

Osborne v WorkSafe New Zealand [2017] NZSC 175, (2017) 15 NZELR 365.

 AND WHEREAS there is public interest in an offender being held to account
for this serious crime;
AND WHEREAS it has been made to appear to me that the ends of justice
would be best answered by trying MALCOLM REWA for the murder of
SUSAN GAIL BURDETT a third time;
I BRENDAN HORSLEY, Deputy Solicitor-General having the appropriate
delegation from Her Majesty’s Attorney-General for New Zealand, direct that
an entry be made in the Criminal Records that further proceedings on the said
indictment against the defendant are no longer stayed pursuant to s 176(1) of
the Criminal Procedure Act 2011.
Brendan Horsley
Deputy Solicitor-General
Pursuant to ss 9A and 9C of the Constitution Act 1986

[48]

On its face the reversal of stay document sets out the grounds for the decision,

namely that given the quashing of Mr Pora’s convictions no-one has been held
accountable for a murder, and the evidential sufficiency supporting the murder charge
against Mr Rewa. There is no evidence before the Court of any bad faith on the part
of the Attorney-General in relation to the decision to lift the stay.
[49]

The fact the effect of lifting the stay is that Mr Rewa will face a third trial is

not, of itself, sufficient to provide justification for the Court to review the AttorneyGeneral’s decision. Third trials, although rare, have been held in certain cases. In
Keyowski v R the Canadian Supreme Court held that to proceed to a third trial did not
of itself amount to an abuse of process in a case involving criminal negligence in
driving causing the death of two cyclists.25 In R v Barlow the Court considered that a
third trial could still fairly be held.26
[50]

Nothing turns on the fact that prior to the lifting of the stay the Police advised

Mr Rewa an application would be made to the Court. Section 9A of the Constitution
Act 1986 provides “the Solicitor-General may … exercise a power conferred on the
Attorney-General”. Section 9C of the Constitution Act provides for the delegation of
powers of the Attorney-General to the Solicitor-General. Those powers may in turn
be delegated to the Deputy Solicitor-General: s 9C(2).

25
26

Keyowski v R (1998) 62 CR (3d) 349; 28 CCC (3d) 553 (Sask CA).
R v Barlow, above n 19.

 [51]

The stay was lifted by the Deputy Solicitor-General in accordance with the

authority vested in him under the relevant provisions of the Constitution Act. The
letter written by the Police was not written by the Solicitor-General, Deputy SolicitorGeneral or Attorney-General. The Constitution Act does not delegate authority to the
New Zealand Police to exercise any powers in relation to a stay. The Police had no
authority to fetter the Attorney-General’s power in relation to the stay.
[52]

In any event, it cannot be said the letter amounted to a specific procedural

representation which bound the Police (and even less so the Attorney-General). The
terms of the letter were no more than a courtesy to Mr Rewa to advise that proceedings
were to be taken against him:
I write as a courtesy to advise you that after consultation with the Solicitor
General, an application will be made at the High Court to seek to re-try you
for the Murder of Susan Burdett.
You are encouraged to engage legal assistance to assist you in this process. If
necessary this letter can be used as a basis to apply for any legal aid funding
given the current absence of any charges filed against you.
The Solicitor General will be represented by the Manukau Crown Solicitor in
these proceedings.
Yours faithfully
Dave Lynch
Detective Superintendent

[53]

In not applying to the Court, (when for the above reasons there was no basis

to) the Attorney-General cannot be said to have acted unfairly. As the AttorneyGeneral was exercising a prerogative power there is no reason or basis for him to apply
to this Court to lift the stay.
The application to reaffirm the stay
[54]

Given my finding that the application to review the Attorney-General’s

decision to lift the stay cannot succeed the related application within the criminal
proceedings to “reaffirm the stay of proceedings” must fail for want of jurisdiction.

 [55]

There is no independent statutory provision or common law principle that

would support this Court “reaffirming” the stay. The decision to grant the stay in the
first place or to subsequently lift it is a decision for the Attorney-General to make.
While it is reviewable, for the reasons above, the Court has declined to review it in the
present case. That is a quite different and separate issue to whether or not in the
exercise of its inherent jurisdiction this Court might itself grant a stay of the
prosecution. For the present there is no basis to reaffirm or reinstate the stay reversed
by the Attorney-General in the exercise of the prerogative.
Result
[56]

The applications are dismissed. In the circumstances I make no order for costs.

[57]

As noted this case has a trial scheduled to commence 11 February 2019. Mr

Chambers confirmed to the Court that he has received pre-trial disclosure. To advance
matters I direct that any application seeking an order from this Court to dismiss or stay
the prosecution under s 147 of the Criminal Procedure Act or in the exercise of its
inherent jurisdiction is to be filed by 25 May 2018, so that when the matter is next
called on 6 June 2018, the Court may on that day allocate a hearing date for such
application. It would be convenient if other pre-trial applications that were to be made
were identified and timetabled to the same hearing.

__________________________
Venning J