A victim of a violent assault is fighting for justice after his alleged attacker's case was thrown out by a judge who thought it was "unfair" to try him because of a delay in proceedings.
Paul Barry has been seeking an appeal against the ruling.
He had requested a review of the case by the Crown, but last week was told that while his anger and frustration were understood, there could be no appeal and the "serious charge will go unanswered".
He is now considering a private prosecution.
Mr Barry was at a 30th birthday party in Ranui in March 2011 when he was assaulted. Almost every bone on the right side of his face was broken. He underwent multiple operations for facial reconstruction and now has titanium plates in his skull. He has ongoing complications and permanent damage.
Dion Read, a Les Mills personal trainer, was charged with injuring with intent to injure. He was committed for trial at the Auckland District Court in October last year - after the case failed to go ahead on four earlier dates.
Mr Barry was due to start a new job the same week as the trial and flagged this with police as soon as they notified him of the date.
However, he said he was very clear that if the date could not be changed again he would be there in court as he wanted the trial to go ahead and was frustrated with the ongoing delays.
"The project I was employed for was going live that week and my contract would only be renewed based on the success of that project. Attending court that week would have cost me my job but if the courts had decided to proceed with the trial I would have attended, albeit at the cost of losing my job," he said.
"I was never given this option - the case was thrown out. I was ready to go on every other date."
Court documents show that a new trial date would not have been before March this year.
Read's lawyer applied for a stay of proceedings, which was granted two weeks later by Judge Michael Crosbie.
In his ruling he said it was the "only appropriate remedy" for the three years the alleged attacker would have been before the courts before his case finally got to trial.
Factors he considered were Read's personal and financial stress and anxiety, inconvenience and disruption to witnesses, and Mr Barry's "unavailability and reluctance to attend".
"The combination of these factors, balanced against the community interest in bringing the matter to trial, means that it would now be unfair to try the applicant and weigh in favour of the stay being the only appropriate remedy," he ruled.
But Mr Barry said he was available and the judge got it wrong. He asked the Crown to appeal based on the incorrect information given about him in the ruling.
"It is extremely frustrating. The whole justice system is a joke ... I am in total disbelief about how poorly I have been treated," he said.
When contacted about the case Read did not respond, but his lawyer Ron Mansfield told the Herald his client denied the charge of intentionally injuring Mr Barry, but did admit punching him.
He said his client suffered "enormous" stress during the lengthy court process and the ruling was a "legally correct and principled decision".
"He is a good, hardworking man with no previous convictions. He should not have been charged at all ... " Mr Mansfield said.
"The trial was stayed because it could not be heard within a reasonable time and Mr Read had by then not only had to wait a considerable period of time, but had incurred significant legal costs to clear his name."
Auckland University professor and criminal law expert Warren Brookbanks said there was nothing exceptional about the stay of proceedings.
"Essentially, it has to be shown that the effect of the delay is that the prosecution has become oppressive because the defendant will not have a fair trial."
Q & A
What is a stay of proceedings?
A ruling by the court in civil and criminal procedure, stopping further legal process in a trial. The court can subsequently lift the stay and resume proceedings. However, a stay is usually granted to postpone proceedings indefinitely.
Why was Dion Read granted a stay?
Judge Michael Crosbie said the time between Mr Read being charged and the likely trial date meant he had faced "significant" delay in his case that would have prejudiced his right to a fair trial.
Why won't the Crown appeal?
Deputy Solicitor General Brendan Horsley said the stay, based on the information he had before him, was correct and could not be undone. He acknowledged there was a "compelling case" that Paul Barry had been portrayed inaccurately. However, it was not strong enough for an appeal. He explained the Crown couldn't appeal unless there were good grounds to do so, and a reasonable likelihood of success. He was satisfied "though disappointed", those grounds could not be established in this case.
What next for Mr Barry?
He could seek a judicial review in the High Court, which is very expensive and has a high risk of failure. Or, he could take a private prosecution against Mr Read, a rare move in New Zealand.