Harimate v Police

[2023] NZHC 269

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-000398

[2023] NZHC 269

BETWEEN

NEVILLE JAMES HARIMATE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

On the papers

Counsel:

N D F Bond for Appellant

WN Fotherby and F Wu for Respondent

Judgment:

22 February 2023

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 22 February 2023 at 4 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, Auckland. N D F Bond, Auckland.

HARIMATE v POLICE [2023] NZHC 269 [22 February 2023]

[1]    Neville Harimate pleaded guilty to three charges of breaching a protection order in 2012. It is now clear—and accepted by the prosecution—no protection order existed, as the (temporary) order had lapsed. It follows Mr Harimate pleaded guilty to an offence that could not in law be committed.

[2]    That the protection order had lapsed was not confirmed until recently, meaning January 2023. Mr Harimate seeks permission to appeal his conviction out of time on the basis justice has miscarried. The respondent offers no opposition to permission being given, or to the appeal being allowed. The parties also agree the case could be determined on the papers, meaning without a hearing.

[3]    I grant permission for an out of time  appeal  and allow the  appeal.  While Mr Harimate pleaded guilty, he could not be guilty of an offence which could not be committed in law. No recitation of authority is required.

Result

[4]Permission is granted, the appeal allowed, and the convictions quashed.

……………………………..

Downs J