“
Viewed overall, the judge forcefully suggested what the jury would, and impliedly should, find by way of the elements of the offence.
“The judge made the ultimate assessment that was for the jury to make.
“The trial was unfair to Mr Swarbrick for that reason. We conclude that this resulted in a miscarriage of justice.”
Kewa-Swarbrick then filed her appeal on the same basis, with the Crown noting that there was “no principled basis to differentiate the appellant’s position from Mr Swarbrick”, and she had “received the same defective summing up”.
The Crown accepted if Mr Swarbrick’s trial was found to be unfair, then so should Kewa-Swarbrick’s case.
“That is an unavoidable concession by the Crown,” the Court of Appeal judges noted, and allowed her appeal against her conviction.
The couple’s case was called again on May 30 in the Hamilton District Court for a callover to discuss the retrial, where through their counsel, they sought a Section 147 dismissal of their charges.
The Crown had filed a Section 146 application to withdraw the charges.
But Judge SR Clark, in careful assessment of the case, made an order to dismiss the charges.
“Faced with all of that, my view is that, rather than grant the s 146 application, that I should dismiss the chrages pursuant to s 147. I make an order to that effect.”
New Zealand Herald Reports https://www.nzherald.co.nz/nz/antony-swarbrick-and-christina-kewa-swarbrick-exonerated-charges-dismissed-after-appeal/LXO7EWNTWZCVNM4S2N4X4VHAVE/