Aborting a murder trial eight days in is "hugely disappointing", especially for the family of the 10-month-old baby who died, Crown solicitor Amanda Gordon says.
Shane Claude Roberts was standing trial in the High Court at Rotorua for the murder of baby Karlos Stephens in 2014 but the trial was aborted on Wednesday.
Justice Matthew Muir told the jury it could no longer continue and if it did resume it could have run into a fourth week. He said because the panel had been sworn in for only two weeks it would have been grossly unfair to them for it to continue to sit beyond the original time frame.
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Gordon said it was "hugely disappointing", especially for Karlos' family, but also because of the cost.
"It's hugely disappointing because a large number of people have had to give up their time and come to court and will now have to do it all again. There is no justice for Karlos in this process."
Gordon said she hoped the court could find a gap in the High Court's calendar.
"At the moment we are scheduling into 2021 so it might mean we have to travel to Hamilton because if not it might not get a retrial for another one-and-a-half years and that's completely unsatisfactory."
Justice Muir said in court on Wednesday he was conscious two jurors had asked to be excused when their names were called, citing personal and work commitments, but at that time he had overridden their requests and directed they take their places in the jury box.
Justice Muir explained if the trial were to proceed it would not be able to resume until Tuesday next week, then it would be adjourned again until Thursday because of the unavailability of expert medical Crown witnesses who had been scheduled to give evidence this week.
This indicated there was every likelihood proceedings would then run into the following week.
"It would be inappropriate to attribute any blame to any party to the proceedings, suffice to say I have had to deal with an application this morning which has ultimately led to the trial's early end," the judge said.
He added that the cost of aborting the trial was "enormous" and he did not make the decision lightly.
Auckland barrister Steve Cullen told Newstalk ZB it was "extremely rare" to abort a trial.
"The cost of it is going to be quite horrendous as the learned judge commented."
He believed it would run into the hundreds of thousands of dollars.
"It's just a shame that a trial that is under way has to come to a halt because of time restraints. It seems the initial estimate was for two weeks only to find that delays caused by unanticipated third parties or unanticipated external factors have now led to it blowing out to four weeks or more."
Cullen said the judge was possibly persuaded by the fact two jurors had already "resisted being appointed".
He said that, coupled with matters raised in the counsel's application, had led him to decide it was "appropriate to abort the trial and start again".
He said trials were normally aborted if juries heard prejudicial evidence or if those involved had become ill.
"But this example here where the trial has simply blown out due to expanding evidence, it seems, or inevitable delays, is a bit more unusual."
Professor Warren Brookbanks from the University of Auckland Law School said the power for a judge to discharge a jury in the course of a trial had a long history.
"In New Zealand the power is given in Section 22 of the Juries Act which specifies a number of grounds on which a judge may discharge a jury at any time before the jury delivers its verdict.
"Generally speaking, a judge can exercise his or her discretion to discharge a jury where there is a high degree of need to do so, and where continuing the trial would be contrary to the interests of justice," Brookbanks said.
Roberts, 60, pleaded not guilty when the trial began on November 4 to murdering 10-month-old twin Karlos Stephens at Rotorua sometime between November 29 and 30, 2014.
When the prosecution began its case, Crown solicitor Amanda Gordon said police had reopened the inquiry into baby Karlos' death last year which had ultimately led to Roberts' arrest and subsequent murder charge.
Evidence was given that he had offered to care for Karlos and his twin brother Hosea when their birth mother Pamela Stephens was having difficulties caring for them and other children while struggling with suspected postnatal depression.
The jury also heard Roberts was co-parenting them with his ex-wife Rachael Broughton although they were living at separate homes.
Defence lawyer Max Simpkins could not be reached for comment and the Ministry of Justice was unable to respond to Rotorua Daily Post questions, including how much the trial had cost so far, before publishing deadline.