McGreevy v Police
[2020] NZHC 2791
•23 October 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2020-409-000069 CRI-2020-409-000070 CRI-2020-409-000071 CRI-2020-409-000072
CRI-2020-409-000073 [2020] NZHC 2791
BETWEEN PATRICK JOHN McGREEVY
Appellant
AND
NEW ZEALAND POLICE and DEPARTMENT OF CORRECTIONS
Respondents
Hearing: 8 October 2020 Appearances:
A J Bailey for Appellant
C J Boshier and S Bicknell for Respondents
Judgment:
23 October 2020
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 23 October 2020 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date…23 October 2020
Introduction
[1] Mr McGreevy appeals six convictions for breaching the conditions of his extended supervision order (ESO). The offending which led to the convictions occurred between 18 June 2008 and 22 March 2012.
McGREEVY v NEW ZEALAND POLICE and DEPARTMENT OF CORRECTIONS [2020] NZHC 2791
[23 October 2020]
[2] The appeals are advanced on the basis that the Department of Corrections unlawfully monitored Mr McGreevy 24 hours a day, seven days a week between the commencement of the ESO on 26 May 2008 and 22 August 2012. Mr McGreevy argues that this unlawful monitoring gives rise to the defence of having “a reasonable excuse” for breaching the conditions of the ESO and it is in the interests of justice that he be granted an extension of time to pursue his appeals against conviction, albeit, after a considerable delay.
[3] Mr McGreevy seeks that the convictions are quashed, and the charges remitted back to the District Court for him to replead and for trial.
The Court of Appeal judgment
[4] The trigger for these appeals is the finding by the Court of Appeal that Mr McGreevy was unlawfully monitored by the Department of Corrections (through its contracted service provider, CRC Ltd) 24 hours a day, seven days a week (24/7 monitoring), and not simply while he engaged in the activities specified under the individual residential reintegration programme (IRRP) developed for him.1
[5] In the Court of Appeal, Mr McGreevy sought various declarations, including that the Department of Corrections (the Department) and its contracted service provider, acted illegally by requiring him to be accompanied and monitored up to 24 hours a day, seven days a week.
[6] The judgment explained that Mr McGreevy was made subject to an ESO on 26 May 2008. The New Zealand Parole Board (Parole Board) imposed special conditions on him under the ESO. Section 15 of the Parole Act 2002 (the Act), provides for the type of special conditions that may be imposed. These can include residential restrictions and conditions requiring participation in an IRRP to reduce the risk of further offending.
[7] Section 33(2) of the Act states that an offender who is subject to the residential restrictions is required:
1 McGreevy v Chief Executive of the Department of Corrections [2019] NZCA 495 at [79].
(a)to stay at a specified residence:
(b)to be under the supervision of a probation officer and to co-operate with, and comply with any lawful direction given by, that probation officer:
(c)to be at the residence–
(i)at all times specified by the Board; or
(ii)at all times:
(d)to submit, in accordance with the directions of a probation officer, to the electronic monitoring of compliance with his or her residential restrictions:
[8] The Parole Board imposed the following residence and programme conditions on Mr McGreevy.2
1.Reside at an address approved in writing by the Probation Officer, and comply with the rules of the residence to the satisfaction of the accommodation provider and the Probation Officer, and not to move from that address without the prior written approval of the Probation Officer.
2.Participate in, and comply with and complete all aspects of the [IRRP] and comply with the rules of the programme to the satisfaction of the programme provider and the Probation Officer.
3. Not to enter or remain at any place (other than the approved residence or other location approved in writing by a Probation Officer in accordance with electronic monitoring requirements and according to the one on one supervision and activity schedule requirements of the provider);
(i)Between the hours of 12 midnight to 9am and 3pm to 12 midnight Monday to Friday; and
(ii)Between the hours of 12 midnight Friday to 12 midnight Sunday.
(emphasis original)
[9] The curfew provisions were amended at various times by the Parole Board, but at no stage was Mr McGreevy made subject to a residential restriction that required him to be subject to 24/7 monitoring.
2 This is the version imposed on 15 October 2008.
[10] The Court of Appeal discussed the provisions of the Act. Residential restrictions requiring an offender to be subject to 24/7 monitoring could only apply within the first 12 months of the term of the order.3 Section 107K(2) (as amended in 2009), confirmed there was no ability to impose a 24/7 monitoring requirement where only partial residential restrictions had been imposed.
[11] The Court explained that Mr McGreevy’s IRRP involved a programme that typically started at 8 or 9 am each day and concluded at 5 pm with preparation of dinner.4 There was no evidence that the IRRP operated outside those times, even when the hours were not defined - as was the case from 15 October 2008 until 22 August 2012. However, he was monitored 24/7 by the Department, saying it was to ensure his participation in, and compliance with, the IRRP.
[12] The Court agreed with Mr McGreevy that monitoring offenders outside the hours of the activities of the IRRP (including whilst asleep) could not be justified as meeting the statutory objectives of the IRRP. The Court said:5
Mr McGreevy cannot be said to have been “participating” in an IRRP 24/7. Monitoring when no attempt was being made to deliver the IRRP was not permitted.
[13] The Court pointed out that s 107K only permitted an offender to be accompanied and monitored up to 24/7 if the offender was subject to a 24 hour residential restriction, and then only for the first 12 months of the term of the ESO. The Parole Board had not imposed such a condition on Mr McGreevy and the Department could not implicitly have been granted such an extensive power.
[14] The Court held that Mr McGreevy was subject to two separate conditions. One was a residence condition and the other was the separate requirement that he participate in and complete an IRRP. Although aspects of the IRRP were carried out where Mr McGreevy was living, it was not a residential programme and, to the extent that aspects of the programme were carried out at the residence where he lived, they
3 Parole Act 2002, s 107K(3)(b).
4 McGreevy v Chief Executive of the Department of Corrections, above n 1, at [31].
5 At [32].
ceased at 5 pm. Thus, outside the hours of the IRRP, there was no authority for one on one supervision of Mr McGreevy.
The charges
[15] Mr McGreevy seeks to appeal six convictions which accrued during the period where the Court of Appeal found he was being unlawfully monitored. Unfortunately, given the passage of time, not all details of the charges are available, but I was provided with the summary of facts for the charges, and some of the charge sheets. The following details emerge from the available documents.
The June 2008 charges
[16] On 18 June 2008, Mr McGreevy removed his electronic ankle bracelet and left his approved residence at 77 Racecourse Road, Christchurch. Three days later, he handed himself in to the Greymouth police. A sentence of six months’ imprisonment was subsequently imposed for those two charges.
The November 2008 charge
[17] On 3 November 2008 at 1.30 am, Mr McGreevy removed his electronic ankle bracelet and left his approved residence. The pre-sentence report dated 22 December 2008 noted that Mr McGreevy said “I can’t handle the conditions”, and that they are “too restrictive”. A sentence of 60 hours’ community work was imposed for this charge.
The October 2009 charge
[18] On 18 October 2009 at approximately 11 pm, Mr McGreevy left his approved residential address and went for a walk. He was apprehended by police less than two hours later. In his pre-sentence report, it was reported that Mr McGreevy “denied that his offending was motivated by anything other than the desire to “go for a walk””. A sentence of six months’ imprisonment was imposed.
[19] Mr McGreevy appealed that sentence. That appeal was unsuccessful, though Panckhurst J noted “extended supervision is effected by conditions which Mr Allan has termed draconian, perhaps not an unfair description”.6
The April 2011 charge
[20] On 1 April 2011, at an unknown time, Mr McGreevy was charged with absconding from his residential address of 77 Racecourse Road, Christchurch “whilst subject to electronic monitoring and one on one supervision”. He was sentenced to six months’ imprisonment on 20 May 2011.
The March 2012 charge
[21] On 22 March 2012, at approximately 2 am, Mr McGreevy left the residence at 77 Racecourse Road, Christchurch. There were two versions of the summary of facts; one alleging he did so “whilst subject to partial residential restrictions”, the other saying he did so “whilst subject to electronic monitoring and one on one supervision”. However, the charge itself alleges he breached “the partial residential restrictions”. He was sentenced to come up if called upon for nine months.
The grounds for the appeal
[22] Mr Bailey submits that at the time Mr McGreevy faced his criminal charges, the District Court was required to proceed on the basis that the restrictions which Mr McGreevy was subject to, were lawful. As such, Mr McGreevy was not able to advance a defence of “reasonable excuse” based on the Department’s unlawful monitoring of him. Section 107T of the Act provides:
An offender who is subject to an extended supervision order … and who breaches, without reasonable excuse, any conditions attaching to that order commits an offence and is liable on conviction to imprisonment for a term not exceeding 2 years.
[23] Mr Bailey argues that the judgment of the Court of Appeal significantly changes matters. It now provides Mr McGreevy with a defence to the charges which
6 McGreevy v Department of Corrections HC Christchurch CRI-2009-409-000207, 17 December 2009 at [1].
this appeal relates to which he did not previously have. Given the extent of the Department’s unlawful monitoring, Mr Bailey submits it was clearly reasonable for Mr McGreevy to have breached his ESO in order to escape it for short periods of time, and this constitutes a defence to each charge under s 107T of the Act.
[24] He notes there has been judicial recognition of the high level of restriction that Mr McGreevy had been subject to. He points to Panckhurst J’s description of the regime as “draconian”,7 and to my observation, when refusing a further 12 months of intensive supervision, that: 8
While Mr McGreevy has previously left the address without authority, that has only occurred once in the last five years and it is likely that the level of restrictions he has been subject to was a substantial cause of that.
[25] In Mr Bailey’s submission, the Department’s “highly intrusive and restrictive actions” were directly causative of Mr McGreevy’s breaches. He left his residence to escape the suffocating level of unlawful oversight that he was placed under. He says it is notable that the breaches relate to Mr McGreevy simply attempting to escape the monitoring and usually only for a short period of time.
[26] Mr Bailey also submits the Court of Appeal judgment provides the basis for granting Mr McGreevy leave to appeal out of time. It was only when that judgment was received that he could advance the arguments he wishes to raise on appeal. While there has been a delay of some months between receiving the judgment and lodging the appeal, I accept Mr Bailey’s explanation for the reasons for that and do not consider that delay, in and of itself, is an impediment to the appeal being heard out of time.
The evidential basis for the defence of “reasonable excuse”
[27] In written submissions, Mr Bailey sought to rely on Mr McGreevy’s second affidavit filed in the judicial review proceedings as providing the evidential basis for asserting the defence of reasonable excuse. In particular, he relies on para 20 of the affidavit dated 14 March 2018 where Mr McGreevy stated “I have usually left the address when I can no longer handle the stress of living under such intensely
7 At [1].
8 Chief Executive of the Department of Corrections v McGreevy [2017] NZHC 527 at [23].
monitored, and unpleasant, living conditions”. He also pointed to contemporaneous comments found in the pre-sentence reports of 22 December 2008 and 27 November 2009 as supporting a finding that the threshold of a “reasonably arguable” defence, which ought to be heard, has been met.9
The respondent’s position
[28] The respondent filed comprehensive submissions identifying both procedural and substantive issues that needed to be answered in Mr McGreevy’s favour before the appeal could be allowed. These were divided into two key questions:
(a)can the convictions be revisited? (which involves considering the finality of judicial decisions against the declaratory theory of the common law); and
(b)should the convictions in fact be revisited? (which turns on whether there would be a substantial injustice if they were not).
[29] In considering the question of whether the convictions could be revisited, the respondent relied on the decision in Taylor v R.10 In that case, the appellant was sentenced to preventive detention following convictions for rape, murder and kidnapping committed when he was 20. Eight years after his appeal period expired, the Supreme Court in Mist v R held that the qualifying age for preventive detention was 21 at the date of the offending, rather than the date of the conviction.11 The appellant did not immediately seek to appeal his sentence, but 12 years on, he changed his mind and sought leave to appeal.
[30] In deciding whether he could be granted leave to appeal, the Court of Appeal considered the tension between the principle of finality of judicial decisions and the declaratory theory of the common law (to the effect that judgments declare the law both retrospectively and prospectively). The Court observed that, as a general
9 Referring to one of the tests in Cooper v R [2013] NZCA 551 at [20], as to the strength of a proposed defence when deciding if a miscarriage of justice might have arisen.
10 Taylor v R [2018] NZCA 498, [2019] 2 NZLR 38.
11 Mist v R [2005] NZSC 77, [2006] 3 NZLR 145.
principle, finality of judgment trumps the declaratory principle which applies the revised law retrospectively, but noted there are exceptions. However where, as here, the appellant had rights of appeal which have not yet been exercised, the Court held that the appellant may still seek to appeal out of time. The principle of finality would not preclude the appellant in the same way as it would for an appellant who had already exhausted their appeal rights. In any event, the essential question will be whether preserving the finality of a decision in the face of later judicial recognition of evaluative error in that decision, would work a substantial injustice. The Court concluded that the answer will not always be yes. In many cases, the measure of injustice will not be such as to compel revisiting the earlier decision.12
[31] Similarly, in R v Knight, the Court explained that in order to justify a departure from the principle of finality:13
The applicant must demonstrate some special feature or features particular to the case that lead to the conclusion that in all the circumstances justice requires that leave be given. Amongst the considerations which will also be relevant in that overall assessment are the strength of the proposed appeal and the practical utility of the remedy sought, the length of the delay and the reasons for delay, the extent of the impact on others similarly affected and on the administration of justice, that is floodgates considerations, and the absence of prejudice to the Crown.
[32] In Knight, the applicant was convicted of benefit fraud by receiving a benefit while living in a relationship “in the nature of marriage”.14 The Court subsequently delivered a judgment which had the effect that Ms Knight was not in fact living in a relationship in the nature of a marriage and therefore was entitled to the benefit she received. The Court allowed an extension of time to bring an appeal against conviction, noting that “the touchstone is the interests of justice in the particular case”.15
12 Taylor v R, above n 10, at [15].
13 R v Knight [1998] 1 NZLR 583 (CA) at 589.
14 At 589.
15 At 587.
[33] In Mr McGreevy’s case, the respondent’s position is that while there is no absolute barrier to the convictions being revisited, there is no substantial injustice arising, and as a result, the convictions should not be revisited. In any event, the convictions are safe and the appeal should be dismissed.
[34] Having regard to the authorities discussed by the respondent, I agree there is no barrier to the convictions being revisited in the circumstances of this case. The issue is whether, given the extent of the delay, the extent of any injustice to Mr McGreevy, and the strength of the appeal, leave to appeal out of time should be granted.
Do the interests of justice require this appeal to proceed?
The respondent’s submissions
[35] The respondent submits that no substantial injustice would accrue to Mr McGreevy if the convictions are not revisited. Ms Bicknell points out that four of Mr McGreevy’s convictions are for breaching the electronic monitoring condition of his ESO and two are for breaching his residential conditions. These conditions were not declared unlawful by the Court of Appeal. The respondent acknowledges that one of the convictions in June 2008 relates to a breach of the IRRP monitoring conditions. However, the length of absence means that Mr McGreevy was also in breach of the lawfully imposed IRRP and residence conditions.
[36] Initially the respondent was of the view that there was insufficient information to determine whether Mr McGreevy’s April 2011 conviction was a breach of the unlawful supervision alone, on the assumption that his absence could have been between 5 pm (the end of his IRRP), and 10 pm (when it was understood his residential curfew commenced), or between 7 am (when it was understood his residential curfew ceased), and 8 am (when his IRRP commenced). However, subsequent enquiries show his residential curfew conditions at the time required him to be at the approved residence, or at an approved location, at all times except between 9 am and 3 pm on weekdays and 10 am and 2 pm on weekends during which time he would, in any event, be attending the IRPP where he could lawfully be monitored. Thus, I do not accept
that he was ever able to be in breach of unlawful monitoring without also being in breach of his partial residential restrictions.
[37] The respondent also points out that Mr McGreevy pleaded guilty to the charges. This amounts to an acknowledgement of the breaches and an acceptance of culpability.16
[38] The respondent rejects the suggestion that the unduly restrictive regime constitutes a reasonable excuse for the breaches. The respondent notes that three of the convictions relate to breaches over several days where Mr McGreevy travelled to different towns and one relates to a breach occurring over four hours in the early morning. Furthermore, given the purpose of an ESO, it is difficult to see that protesting unduly restrictive conditions should constitute a reasonable excuse.
[39] The respondent points out that, unlike in Taylor, Mr McGreevy would not face ongoing detriment should his convictions stand. He has already completed the sentences imposed for the offending long ago. At best, a successful appeal might mean the removal of six convictions from an extensive criminal history. The respondent also points to a risk that allowing the appeal could open the floodgates to other decisions where past injustices are claimed to warrant convictions being revisited.
Discussion
[40] I am satisfied that the convictions all involve breaches of the lawfully imposed conditions, being either the EM condition of his ESO or the residential curfew. This is not a case where Mr McGreevy left the residence at a time when he was neither required to be there under the residential curfew condition, nor because he was required to be there to participate in the IRRP. If that had been the case, I accept that as a result of the Court of Appeal’s decision, the charge should not have resulted in a conviction and his appeal would be allowed.
16 This has parallels with the decisions cited in Taylor where leave was declined to reopen convictions following guilty pleas, being R v Hawkins [1997] 1 CrAppR 234 (CA); R v Ballinger [2005] EWCA Crim 1060, [2005] 2 CrAppR 29; and A v Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 IR 88.
[41] I acknowledge that Mr McGreevy pleaded guilty to all charges and so must meet the stringent threshold for setting aside a guilty plea.17 However, I accept that if there is an arguable defence under s 107T of the Act, this would be a case where Mr McGreevy pleaded guilty under the mistaken belief or assumption that no tenable defence existed or could be advanced, and therefore should be allowed to vacate his guilty plea.18
[42] The key issue therefore is whether, having been charged with breaching legitimate conditions of the ESO, the extent of unlawful monitoring could constitute a defence of “reasonable excuse”. I do not have to consider whether the defence would succeed; that will be a question for the rehearing of a charge if leave is granted and the appeal is allowed. However, the defence must have some merit in order to support the appeal. The requisite threshold was summarised in Cooper v R, as follows:19
In the context of considering the adequacy of advice about possible defences, various terms have been used to describe the nature of the defence required, including an “arguable defence”, a “tenable defence”, a “credible defence”, or a “discernible defence”…
In a case involving Arms Act charges, Randerson J referred to a “reasonably arguable” defence which “ought to be heard”.
(footnotes omitted)
Thus, when seeking to set aside a guilty plea on the mistaken belief or assumption that no tenable defence existed, there is a requirement to raise a defence “which has some substance”.20
[43] The defence to be advanced is that Mr McGreevy had a “reasonable excuse” for the breach. It is therefore necessary to consider what Parliament intended should constitute a “reasonable excuse” such that it could be advanced as a complete defence to a charge.
17 As set out in R v Merrilees [2009] NZCA 59 at [33].
18 At [34].
19 Cooper v R [2013] NZCA 551 at [20].
20 At [21].
[44] In A v Police, Baragwanath J considered the meaning of “reasonable excuse” in the context where it was a defence to a charge of breaching a protection order, saying:21
I accordingly reject the argument that the term “reasonable excuse” means “reasonable” only in the subjective perception of the defendant. Such construction would allow the insensitive defendant to engage in violence without sanction. “Reasonable” has been adopted by the law in a range of contexts as imposing an objective standard as a societal norm. In this context I consider it to mean an excuse which an ordinary New Zealander would consider to be reasonable in all the circumstances.
Thus, he concluded “whether there is an “excuse” to the conduct will turn on whether it was objectively “reasonable” for the defendant to engage in it”.22
[45] Ms Bicknell submitted the unlawful monitoring could not meet that threshold when Mr McGreevy was lawfully required to be at the residence or participating in the IRRP under supervision. She directed me to s 33(4) of the Act which set out circumstances in which an offender may leave a residence despite being subject to residential restrictions. These are:
(a)to seek urgent medical or dental treatment; or
(b)to avoid or minimise a serious risk of death or injury to the offender or any other person; or
(c)for humanitarian reasons approved by the probation officer.
[46] She said these reflected the kind of justifications which Parliament intended to constitute a reasonable excuse for non-compliance with the residential restrictions of an ESO.
[47] Mr Bailey pointed out those were automatic rights provided by statute to depart from the restrictions, and the defence of “reasonable excuse” must logically embrace a wider range of considerations.
21 A v Police [1999] 2 NZLR 501 at 506.
22 At 506.
[48] In his submission, it was objectively reasonable (or at least reasonably arguable to be so), for Mr McGreevy to seek relief from the oppressive supervision he was under by leaving the residence for short periods, notwithstanding that meant he breached other legitimate conditions of his ESO. He rejected the suggestion that Mr McGreevy should be required to comply with them and instead seek legal redress (as he ultimately did), to have the supervision ruled unlawful, saying that was not a practical remedy for dealing with the immediate stress of being subject to this level of supervision.
[49] He points out that Mr McGreevy endeavoured to raise his concern about the extent of monitoring with the Parole Board in 2012. In a decision issued on 22 August 2012, the Board noted that Mr McGreevy sought some “clarification” of the requirement that he be subject to person to person monitoring because it was not clear to him that the Board had imposed such a condition. However, the Board clearly did not comprehend his question and simply reiterated the condition that he be subject to an IRPP and that it “is a part of that programme that he be accompanied at all times by Christchurch Residential Care staff”. The Board did not address whether he was required to be monitored outside the programme hours. Furthermore, when he sought judicial review of the decision to monitor him 24/7, that took considerable time to work through to a successful outcome.
Discussion
[50] I acknowledge the difficulties Mr McGreevy has had in getting recognition that the extent of his ESO monitoring was unlawful. However, I do not consider that frustration with a condition that subsequently proves to be unlawful provides a reasonable excuse, and therefore a reasonably arguable defence, to non-compliance with conditions of an ESO that have been lawfully imposed. In my view, had the circumstances of the unlawful supervision been known at the time of sentencing, they might well have mitigated the level of culpability of the breach, so perhaps lowering the sentence imposed, but could not have constituted a reasonable excuse such as would provide as a complete defence to the charges of breaching a lawful condition.
[51] While the concept of reasonable excuse is not confined to matters of physical or medical emergency (being the types of things which excuse breaches of residential conditions under s 33 of the Act), they are indicative of what would constitute a reasonable excuse. Mr McGreevy was lawfully required to be at the residence or participating in the IRRP at all times as part of the protective regime of the ESO. A reasonable excuse for breaching those conditions must be objectively sufficient to warrant him being out in the community notwithstanding the assessed risk that that would entail. I do not consider his frustration with a regime of one on one supervision could be argued to reach that threshold.
[52] Furthermore, albeit not determinative of my decision, I do not consider the evidence shows that the frustration stemmed specifically from the unlawful supervisory aspect of the conditions he was under. Rather, it stemmed from frustration at the whole suite of conditions, but most particularly, the residential restrictions. As Mr McGreevy said to the Probation Officer preparing the 27 November 2009 pre-sentence report, his offending was simply motivated by the desire to “go for a walk”, something which his residential restrictions effectively precluded.
[53] For these reasons, I do not consider that where Mr McGreevy has been charged with breaches of lawful conditions (as here), the element of unlawful supervision that Mr McGreevy was also under, could be advanced as a reasonable excuse for that breach and therefore a reasonably arguable defence. In those circumstances, there is no particular injustice arising if leave to appeal is declined.
[54]Accordingly, leave to appeal, out of time, against those convictions is declined.
Solicitors:
A J Bailey, Barrister, Christchurch
Raymond Donnelly & Co., Christchurch
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