McGreevy v Department of Corrections

[2012] NZHC 504

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-409-000016 [2012] NZHC 504

PATRICK MCGREEVY

Appellant

v

DEPARTMENT OF CORRECTIONS

Respondent

Hearing:         22 March 2012

Appearances: M Starling and A Millen (for P Allan) for Appellant

MAV Raj for Respondent

Judgment:      22 March 2012

ORAL JUDGMENT OF HON JUSTICE FRENCH

[1]      In March 2010, the appellant, Mr McGreevy, was convicted and sentenced to nine  months’ imprisonment  on  a  charge  of  breaching  the  residential  restriction conditions of his extended supervision order.  He had pleaded guilty to that offence, but now appeals the conviction.

[2]      The appeal has been brought well out of time.  However, the delay is due to the fact that it has only now been appreciated that Mr McGreevy ought not to have entered a guilty plea, as in law he could not be guilty of the offence.

[3]      The reason that is so is because his residential restriction conditions were to apply for only a 12-month period from 26 May 2008.   However, the probation

service treated Mr McGreevy as still being subject to the restrictions well after the

MCGREEVY V DEPARTMENT OF CORRECTIONS HC CHCH CRI-2012-409-000016 [22 March 2012]

12-month  period  and  prosecuted  him  twice  for  breaching  those  conditions. Apparently there has already been an earlier charge withdrawn for the same reason.

[4]      It is only in exceptional circumstances that a person is entitled to vacate a guilty plea, but it is clear this is one of those circumstances, the jurisdiction arising where on admitted facts a person could not in law have been convicted.  The Crown accepts that is indeed the position, and accordingly the appeal is allowed, the guilty plea vacated and the conviction quashed.

Solicitors:

P Allan, Christchurch

Crown Solicitor’s Office, Christchurch