McGreevy v Police - [2020] NZHC 2791

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McGreevy v Police

Details

AGLC: McGreevy v Police [2020] NZHC 2791
Case: [2020] NZHC 2791
Decision Date: 23 October 2020

CaseChat Overview and Summary

The appellant, Mr McGreevy, appeals against six convictions for breaching the conditions of his extended supervision order (ESO). The appeal is predicated on the contention that the Department of Corrections unlawfully monitored him 24/7, which is argued to provide a defence of reasonable excuse for his breaches. The appeal seeks the convictions to be quashed and the charges remitted back to the District Court for repleading and trial.

The legal issues revolve around the interpretation of the Parole Act 2002, specifically concerning the extent and legality of the monitoring requirements imposed on Mr McGreevy, and whether the unlawful monitoring could constitute a reasonable excuse for his breaches of the lawfully imposed conditions of his ESO.

The Court of Appeal had previously determined that Mr McGreevy was unlawfully monitored 24/7, contrary to the statutory provisions that only allow such monitoring within the first 12 months of the ESO term, and only if full residential restrictions are imposed. The Court held that the unlawful monitoring did not justify the 24/7 supervision outside the hours of the individual residential reintegration programme (IRRP).

The High Court, however, found that the unlawful monitoring did not constitute a reasonable excuse for breaching the lawfully imposed conditions of the ESO. The Court held that while the unlawful monitoring might have mitigated the level of culpability, it did not provide a complete defence to the charges of breaching lawful conditions. The Court also noted that Mr McGreevy's breaches were not solely due to the unlawful monitoring but were also motivated by his desire to escape the residential restrictions.

Accordingly, the High Court declined leave to appeal out of time against the convictions.

Orders