Media coverage of Teina Pora's wrongful conviction and imprisonment for the murder of Susan Burdett, including a telemovie last Sunday, has potentially contaminated a third trial for Malcolm Rewa, says his lawyer.
Rewa, a serial rapist who was sentenced to preventative detention for raping Burdett and 24 other women, has again been charged with the Auckland woman's murder.
A third trial has been scheduled for next year, however, today in the High Court at Auckland, Rewa's lawyer Paul Chambers argued too much time has passed and "the prejudicial qualities" of past media publications will prevent a fair trial for his client.
Pora may also be called as a witness for the February trial, the court heard.
Chambers is asking Justice Geoffrey Venning, the Chief High Court Judge, to dismiss the charge and apply a permanent stay of proceedings.
"There is sufficient prejudice, sufficient hostility, sufficient time to make a fair trial impossible for the defendant," Chambers argued.
"It is vastly in favour of the trial not going ahead."
Justice Venning reserved his decision.
Chambers said a dramatised 90-minute television film about Pora's case, In Dark Places, played on TVNZ 1 last Sunday, adds to the prejudicial publicity of the well-known case.
"It's in the back of their minds, whether consciously and subconsciously," he said of a potential jury pool.
"It's in the tone of the [media] commentary, it's in the tone of the movie."
Chambers said there was a perception in the public of comparing Pora to Rewa, which has been expressed openly in the media and film.
Rewa maintains he is not the murderer.
In Dark Places has been entered as evidence in the proceedings, with Justice Venning having seen the film along with more than 240,000 other people, according to South Pacific Pictures.
The film, Chambers told the court, depicts Rewa hiding in a closet before Burdett's murder. A similar rape is foreshadowed later in the movie.
"Nothing is portrayed for balance," Chambers said.
"With the release of the film, Mr Rewa cannot get a fair trial."
Crown prosecutor Gareth Kayes said "publicity alone is certainly not going to win the day for [Rewa]".
The film, Kayes said, carried an artistic licence and focused on Pora rather than Rewa.
He added the movie will be taken down from TVNZ's online platform in 10 days' time - six months before the trial.
Police have yet to talk to all the potential Crown witnesses, but have spoken to some of the "key witnesses", Kayes said.
Kayes said, however, the Crown had "strong, compelling evidence that the accused is guilty".
He said there was no specific prejudice caused from the passing of time since the killing.
Burdett was raped and bludgeoned to death in her Papatoetoe home in 1992.
Pora was twice wrongly convicted for the crime and spent 22 years in prison before the Privy Council quashed his conviction in 2015. He has since received an apology from the Government and $3.5 million compensation.
A stay of proceedings for a murder prosecution against Rewa had previously been applied by the Solicitor-General in 1998.
But last year the Deputy Solicitor-General, Brendan Horsley, on behalf of the Attorney-General, reversed the 1998 stay.
In May, Justice Venning declined an application by Chambers for a judicial review of the decision to lift the stay.
"The reversal-of-stay document sets out the grounds for the decision, namely that given the quashing of Mr Pora's convictions no one has been held accountable for a murder, and the evidential sufficiency supporting the murder charge against Mr Rewa," he said in his decision.
"There is no evidence before the court of any bad faith on the part of the Attorney-General in relation to the decision to lift the stay. The fact the effect of lifting the stay is that Mr Rewa will face a third trial is not, of itself, sufficient to provide justification for the court to review the Attorney-General's decision. Third trials, although rare, have been held in certain cases."
A stay had never before been lifted in New Zealand's legal history.
Rewa was also denied parole in May - his first hearing before the Parole Board.
The written decision will not be publicly released.
Rewa's next parole hearing will be in April 2020.