R v Westbury

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.
____________________________________________________________________
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

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Linda Joyce Westbury against her convictions on nine counts of receiving. Westbury was sentenced to 200 hours of community work on 21 September 2007. The appeal was heard on the papers under section 392B of the Crimes Act 1961. The appeal was allowed, and the convictions were set aside, ordering a retrial.

The legal issues before the Court were whether the appeal against conviction should be allowed and whether the convictions should be set aside. The Court had to consider the reasoning of the Court in the earlier appeals by Peter Lloyd Machirus and Vincent James Clayton, which had been allowed, and whether that reasoning applied to Westbury. The Court also had to consider whether an extension of time for appealing should be granted to Westbury due to the potential consequences of the earlier appeals.

The Court found that the reasoning of the Court in Clayton, based on the decision in Machirus, applied to Westbury. The Court was advised that the Crown would not lead evidence at a retrial for Machirus and Clayton, who had been discharged under section 347 of the Crimes Act 1961. The Court found it reasonable to extend time for Westbury to appeal due to the potential consequences for her. The Court allowed the appeal, set aside the convictions, and ordered a retrial.

The final orders of the Court were that an extension of time for appealing was granted to Westbury, the appeal was allowed, and the convictions were set aside, ordering a retrial.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established