Police Commissioner Mike Bush has confirmed in a statement that the Solicitor-General has agreed to make an application to the High Court to re-try Malcolm Rewa for the murder of Susan Burdett.

Mr Rewa was tried twice in 1998 for Ms Burdett's murder, with the jury unable to reach a verdict in both trials. After the second trial the Solicitor-General stayed further prosecution of Mr Rewa.

Mr Bush says that after Teina Pora's conviction for the murder of Ms Burdett was quashed, the decision to stay the prosecution of Mr Rewa was reviewed at Police request.

"A team of senior and experienced homicide detectives under the oversight of Detective Superintendent Dave Lynch have commenced preparation work on the file, and will work with the Manukau Crown Solicitor to make the application in the High Court and manage the case through to a third trial if one is granted," he says.

Situation unprecedented

Co-author of the leading criminal law text Simester and Brookbanks Principles of Criminal Law and AUT University Professor of Law Warren Brookbanks says it would seem the situation is unprecedented in New Zealand.

"Stay of proceedings are themselves extremely rare. Lifting them is even more unusual," he says.

"The effect of a stay is, of course, to  forbid further steps  being taken in those proceedings. It does not actually terminate them. Interestingly, there does not appear to be any statutory authority (at least that I  am aware of) for lifting a stay."

Professor Brookbanks says there is some common law authority that while a stay of proceedings puts an end to the proceedings,  it does not act as a bar  to a fresh indictment for the same offence.

"In England the exercise of a stay order by the Attorney-General  does not prevent a judge, on the application of a prosecutor, from directing that the indictment should remain on the file and not be proceeded with unless by leave of the court or the Court of Appeal.

"It is not clear to me, however, whether  such a power exists in New Zealand, but perhaps could reside in the inherent jurisdiction of the High Court."

Professor Brookbanks says whether the common law procedure of directing that the indictment remain on the file and not be proceeded with without the leave of the court is available in New Zealand, or whether it has been overtaken by the new procedure in section 153 of the Criminal Procedure Act 2011, "is an interesting question".

"The problem with the section 153 procedure, however, is that it only applies where an offender has been acquitted.  It would seem to have no application where the proceedings have simply been stayed, but the offender not acquitted."

Powers to stay proceedings

Section 176 of the Criminal Procedure Act 2011 gives effect to the common law right of the Attorney-General to intervene in the prosecution process and to stay any prosecution from proceeding further. Whether a stay can be subsequently lifted in New Zealand is the big unknown.

The Solicitor-General's guidelines for stays of prosecution and retrials are outlined in section 25 of the Solicitor-General Prosecution Guidelines 2013.

Noting that the power to stay has been sparingly exercised and "that conservative approach is likely to continue", the Guidelines state that the power will generally be exercised where a jury has been unable to agree after two trials.

"After a second disagreement the Crown Solicitor must refer the matter to the Solicitor-General for consideration of a stay. A stay will normally be directed unless the Solicitor-General is satisfied that some event, not relating to the strength of the Crown's case, brought about one or both of the disagreements, or that new and persuasive evidence would be available on a third trial, or that there is some other exceptional circumstance making a third trial desirable in the interests of justice."

The stay in the proceedings against Mr Rewa, in 1998 was presumably driven by similar considerations. The 1992 Solicitor-General Guidelines which were in force then contained similar wording to that used in the current guidelines. The subsequent acquittal of Mr Pora, of course, may have changed the situation so that a different decision on staying the proceedings would have been made.

While people have been tried three times for the same offence in New Zealand (R v Aves [1937] NZLR 110, R v Barlow [1998] 2 NZLR 477 (CA)), there was no stay on proceedings after the second trials. In deciding that a third trial could proceed in Barlow the Court of Appeal did comment that it was relevant that the Solicitor-General had declined to exercise the power to stay.