KEY POINTS:
Auckland gunshop director Greg Carvell could still face a firearms charge despite a court yesterday throwing out a charge that he unlawfully possessed a pistol.
Authorities are now considering if the decision to dismiss the charge should be left unchallenged or if Mr Carvell should still go to trial.
That decision could be made within a week.
Simon Moore, senior Crown prosecutor in Auckland, said there were four options:
* Accept the JPs' ruling and do nothing
* Lay the charge again
* Seek a High Court review of the decision
* Apply to the High Court for an ex-officio indictment, which would effectively leap frog the depositions procedure
Mr Moore said letting the decision go unchallenged would end the matter for Mr Carvell but the other three options could see him back in court.
"Because depositions are not a final determination -- it is a review of the sufficiency of the evidence -- charges can be laid again," he said.
"There is never a bar if there has been a dismissal of charges at depositions. It is not an acquittal."
He said normally the charges would be laid again only if there was different material to put before a reviewing court.
The third option to seek a high court judicial review of the JPs' ruling could be lengthy and lead to further delays in a case which had already been delayed.
The fourth option, which was the most frequently used in similar cases, was an application to a High Court judge for an ex-officio indictment under the Crimes Act.
"You can leapfrog essentially the district court. You can go straight to the High Court and say this is the material we put in front of the justices of the peace, and in our view the refusal to commit this man for trial was wrong, it was against the evidence."
He said the High Court would review the application and decide if the case should go to trial.
Mr Moore said the decision should not be delayed and was likely within a week.
He also said the court of public opinion may also influence the decision on what do about the charge against Mr Carvell.
Mr Carvell shot an intruder in his Penrose gunshop last July as the man raised a metre-long machete above his head and threatened to kill him and fellow gunshop worker Bruce Motley.
Ricky Beckham survived the shooting and was jailed for two years and nine months.
Mr Carvell was not charged with the shooting after police decided it was self-defence, but with the possession of a firearm without lawful, proper or sufficient purpose.
He had admitted keeping the Colt .45 pistol hidden on a shelf in a desk in his shop for self-protection. In the depositions hearing, Crown prosecutor Marc Corlett argued the shooting and the possession of the gun were separate issues.
However, two JPs in the Auckland District Court said there was not enough evidence he had the gun for anything but a lawful, proper and sufficient purpose.
- NZPA
