There is "no fresh evidence" to prosecute Malcolm Rewa for the unsolved murder of Susan Burdett, a court has heard.

A scheduled third trial of Rewa, a serial rapist, for Burdett's murder remains in doubt as an application to stay the proceedings and judicial review is heard in the High Court at Auckland today before Chief High Court Judge, Justice Geoffrey Venning.

A directive last November by the Deputy Solicitor-General Brendan Horsley on behalf of the Attorney-General reversing the 1998 stay on the case appeared to clear the way for the trial, according to the case file, examined by the Herald.

However, Rewa's counsel Paul Chambers has claimed the process is unlawful and will apply to have the stay reapplied.

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"There will be an application because there is no fresh evidence," he told the court today.

Susan Burdett, pictured in 1989. Photo / File
Susan Burdett, pictured in 1989. Photo / File

Chambers said there was no legislative or implied power for the Attorney-General to lift the stay.

"It is incumbent on the Attorney-General to make use of this court's jurisdiction and make an application to lift the stay," he added, when arguing the High Court had jurisdiction over the case.

"There needs to be some formal process to lift the stay rather than the prerogative of the Attorney-General."

Two juries have been unable to find Rewa guilty, Chambers said.

Rewa is serving 22 years in prison for the rapes of Burdett and 24 other women - the longest finite sentence for rapes committed before 1993.

Burdett was raped and bludgeoned to death in her Papatoetoe home in 1992.

The stay was imposed in December 1998 after two trials, where two juries were unable to decide if Rewa, whose DNA was at the scene, had also murdered Burdett.

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Teina Pora, however, was wrongly convicted for the crime.

Teina Pora was wrongly convicted of the rape and murder of Susan Burdett. Photo / Nick Reed
Teina Pora was wrongly convicted of the rape and murder of Susan Burdett. Photo / Nick Reed

In 2015, the Privy Council quashed Pora's convictions for Burdett's rape and murder.

He was twice convicted for a crime he never committed and spent 22 years in prison. He has since received an apology from the government and $3.5 million compensation.

The murder is now unsolved, and the Crown, through prosecutor Gareth Kayes, wants to try Rewa again over eight weeks next February.

A stay has never before been lifted in New Zealand, which had led to debate in academic and legal circles over whether a mechanism exists to do so.

The Crown and Chambers do agree, however, that case law indicates a stay does not prevent a further prosecution, once it is lifted.

Justice Venning reserved his decision, which he said would be made within a "few weeks".

The "reversal of stay of proceedings" document, signed by Horsley, reads that Pora was already convicted of the murder at the time the two juries failed to reach a decision about Rewa.

It also notes that Pora's conviction has since been quashed, no one hasbeen held to account for the murder, and that there is enough evidence to charge Rewa.

An argument that there was public interest in an offender being held to account was also penned and reads "that the ends of justice would be best answered by trying Malcolm Rewa for the murder of Susan Gail Burdett a third time".

When Rewa, now 65, appeared in the High Court in December, he wore a grey prison tracksuit, glasses and had little hair.