McIntyre v R

[2017] NZCA 579

IN THE COURT OF APPEAL OF NEW ZEALAND

CA578/2017
[2017] NZCA 579

BETWEEN	RUARANGI WAITAI MCINTYRE Appellant
AND	THE QUEEN Respondent

Court:

Miller, Brown and Clifford JJ

Counsel:

E P Priest for Appellant
I R Murray for Respondent

Judgment:

(On the papers)

11 December 2017 at 10.00 am

JUDGMENT OF THE COURT

AThe appeal is allowed.

BThe conviction for being an accessory after the fact to murder is quashed.

CThere is no order for a retrial.

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REASONS OF THE COURT

(Given by Brown J)

1. Mr McIntyre pleaded guilty to a charge of accessory after the fact to murder.  The alleged primary offender defended the murder charge, claiming self-defence,
   
   

and was acquitted.  Following that acquittal, Mr McIntyre appeals his conviction.[1]

[1]Mr McIntyre’s notice of appeal was filed some nine days out of time as a result.  The necessary extension of time was granted by Brown J: McIntyre v R CA578/2017, 24 November 2017 (Minute of Brown J).

1. To succeed on a charge of accessory after the fact to another crime the Crown must prove the substantive crime was committed, although it is not necessary that a person be convicted of that substantive crime.  In the circumstances, the Crown conceded that the successful self-defence claim by the alleged primary offender has the consequence that there was no murder.  Accordingly, Mr McIntyre cannot be an accessory to a murder that did not occur.

2. We accept the Crown’s submission that this case falls within the second category of exceptional circumstances in R v Le Page[2] and Watts v R[3] so as to permit a successful conviction appeal following a plea of guilty.  That is where a miscarriage of justice arises because, on the admitted facts, the appellant could not in law have been convicted of the offence charged.  Consequently, notwithstanding the guilty plea, we allow Mr McIntyre’s appeal against his conviction on the charge of accessory after the fact to murder.

Result

[2]R v Le Page [2005] 2 NZLR 845 at [18].

[3]Watts v R [2011] NZCA 41 at [20(b)].

1. The appeal is allowed.

2. The conviction for being an accessory after the fact to murder is quashed.

3. There is no order for a retrial.

Solicitors:
Blackstone Chambers, Auckland for Appellant
Crown Law Office, Wellington for Respondent