R v Westbury

[2009] NZCA 104

IN THE COURT OF APPEAL OF NEW ZEALAND

CA79/2009
[2009] NZCA 104

THE QUEEN

v

LINDA JOYCE WESTBURY

Court:O'Regan, Robertson and Ellen France JJ

Counsel:D Brown for Appellant

S B Edwards for Crown

Judgment

(On the papers):          30 March 2009 at 2.30 pm

JUDGMENT OF THE COURT

A        AN EXTENSION OF TIME FOR APPEALING IS GRANTED.

B        THE APPEAL IS ALLOWED.

C        The convictions are set aside and a retrial is ordered.

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REASONS OF THE COURT

(Given by Robertson J)

[1]       This appeal against conviction has been heard on the papers under s 392B of the Crimes Act 1961.  The relevant materials have been considered by the members of the Court who have conferred and agreed upon this judgment.

[2]       Ms Westbury appeals against her convictions on nine counts of receiving in respect of which she was sentenced to 200 hours community work on 21 September 2007.

[3]       Involved in closely associated offending were Peter Lloyd Machirus and Vincent James Clayton.

[4]       By judgment of this Court delivered on 11 November 2008 ([2008] NZCA 477), appeals by Mr Machirus were allowed. All his convictions were set aside and a retrial was ordered.

[5]       On 24 November 2008 ([2008] NZCA 493), in an on the papers judgment, appeals by Mr Clayton were allowed. His convictions were set aside and a retrial was ordered.

[6]       The Crown accepts that the reasoning of the Court in Clayton, based on the decision in Machirus applies to Ms Westbury.

[7]       We are advised that, in respect of Mr Machirus and Mr Clayton, the Crown indicated that it will not lead evidence at a retrial and they have each been discharged under s 347 of the Crimes Act 1961.  That is a matter for the prosecuting authority and not for this Court.

[8]       Because of the potential consequences for Ms Westbury flowing from the granting of the appeals of the two men, it is reasonable to extend time for Ms Westbury to appeal.

[9]       An extension of time for appealing is granted.  The appeal is allowed.  The convictions are set aside and a retrial is ordered.

Solicitors:
Crown Law Office, Wellington