The case against three men charged with the murder of Upper Hutt woman Lois Tolley in 2016 has unravelled due to lack of evidence.
Lois Tolley was shot in her Ward Street home in December 2016. Photo: RNZ / Supplied / NZ Police
Justice Simon France allowed police to use a new power and withdraw the charges, which leaves the door open for them to continue investigating and and lay fresh charges in future.
Lois Tolley, a 30-year-old chef, was killed in what investigators described at the time as "an execution style killing" at her Wallaceville home on 9 December 2016.
CCTV footage showed four men entering the house with a machete and a shotgun.
It was three years before the first of the defendants was charged.
Two of the men were alleged to be among the four who went into the flat, while the third was alleged to be part of the common plan but remained outside.
In a written judgment published recently online (dated 17 December), Justice France said the Crown case had "gradually unravelled" in the last three months of last year.
This followed a judgment in December excluding the admissions to police by one of the men, which formed the bulk of the case against him.
His lawyers asked for the charges to be dismissed, but this would have left police hamstrung in their ability to pursue the investigation.
"This is significant in a case such as the present where it is known that at least two direct offenders who entered Ms Tolley's flat have not been charged and there is still some evidence implicating these three defendants," the judge said.
Instead he allowed the Crown to withdraw the charges - a new power.
"The important thing about it is that if leave is given and the charges are withdrawn, it is as if the defendant had not been charged. The police may continue to investigate, and if it is considered there is sufficient evidence, may again lay the same charges."
Shortly afterwards, the Crown also asked to withdraw charges against another defendant because its evidence relied on admissions he was alleged to have made to other prisoners.
The case against the third defendant collapsed after it was revealed the Crown's key witness had twice been charged with perverting the course of justice.
The justice said his decision to allow the Crown to withdraw the charges was based on the serious nature of the charge and the fact it was an ongoing investigation with known other offenders yet to be identified or charged.
The circumstances of the individual defendants, who had spent most of the last two years in custody, did not sway him from his decision, although he noted one man in particular had suffered in custody due to unspecified reasons.
"Two years in prison is not to be minimised, but I am not persuaded there would be a corresponding level of unfairness because of that in allowing the Crown to withdraw, such that the application for a dismissal should be favoured."
The justice has set a trial for 8 February 2022, as the date by which applications for final name suppression are to be filed.