The son of Stephen Stone has filed a Law Society complaint against the Auckland Crown Solicitor, alleging she misled the court with her statement about the lack of evidence to retry his father, who was acquitted of double murder last week.
Daniel Stone, 32, said Alysha McClintock’s statement had caused “significant harm” to his father and family by “perpetuating a myth” the Crown case was dropped because witnesses were unavailable.
Stephen Stone spent more than 26 years wrongfully imprisoned for the 1989 murders of Deane Fuller-Sandys and Leah Stephens.
In July, the Crown admitted he and three others convicted in connection with the crime suffered a miscarriage of justice. The Court of Appeal accepted a police failure to disclose two key documents led to the miscarriage. Stone’s convictions were quashed in October and a retrial ordered.
Known as the “Larnoch Road Four”, their convictions relied heavily on four eyewitnesses who were given immunity from prosecution and name suppression.
On Wednesday, McClintock told the High Court in Auckland one of the key reasons a retrial couldn’t go ahead was because three of the four witnesses were “no longer available, through a combination of the consequences of the appeal decision, death and witnesses no longer being in New Zealand”.
The Evidence Act sets out scenarios where a witness is considered unavailable. These include if the person is dead; outside of New Zealand and it’s not reasonably practicable for them to be a witness; they are unfit to be a witness; or they cannot be compelled to give evidence.
In his complaint, Daniel Stone acknowledged one witness was dead and one was in Australia. However, he claimed that it was not correct to say three witnesses were no longer available. Instead, he believed only one was unavailable, the others were “wholly unreliable” witnesses, and the Crown’s statement was: “Designed to publicly spin the position in favour of the prosecution, in an inappropriate abuse of the Crown’s role.”
During the Court of Appeal hearing in August, the court heard the two non-recanting witnesses had changed their stories significantly multiple times.
“You have change of venues, change of witnesses, change of motives, change in the manner of death, changes in who died, who was alive, and how bodies were disposed of,” Stephen Stone’s lawyer Annabel Maxwell-Scott told the court.
The Court of Appeal declined to rule their evidence inadmissible.
“The fact Mr X and Mr Y each made a number of startling contradictory statements to the police was before both juries in the earlier trial,” the judgement said.
In the High Court on Wednesday, McClintock said there was no longer enough evidence to prove charges against Stone beyond a reasonable double – referring to additional ESR testing on samples collected by police at the time which had not produced any results of significance; and Stone’s admissions of murder to get parole did not provide a basis for prosecution.
Private investigator Tim McKinnel, who worked on the case, said outside the court on Wednesday that the Crown’s statement was “incredibly frustrating”.
“There is no acknowledgement of their own role in these miscarriages of justice, and they gave the distinct impression that they believe Stephen has done something — and that’s outrageous in my view.”
McClintock told 1News: “It is not appropriate for me to engage in debate about the reasons for my decision or the content of the statement through the media.”
Attorney-General Judith Collins’ office said: “It is not appropriate for the Attorney-General to comment about what has been said in Court by a prosecutor about a particular criminal prosecution.”
Comparison to Alan Hall case
Stephen Stone’s acquittal was handled very differently to the acquittal of Alan Hall – another high-profile miscarriage of justice case.
In that case, the Crown and court acknowledged the miscarriage.
“We cannot end this judgment without acknowledging that, just as the criminal justice system has failed Mr Hall, so too has it failed the Easton family,” said the 2022 judgment.
Alan Hall was declared innocent in 2023 and received nearly $5 million compensation for 19 years wrongful imprisonment.