HARIMATE v POLICE [2023] NZHC 269
Because the temporary protection order had lapsed, the statutory offences charged could not lawfully be committed; therefore the convictions were unsustainable and had to be quashed, and permission to appeal out of time was granted to correct the miscarriage of justice.
Source-derived case information.
- Citation
- [2023] NZHC 269
- Parties
- Appellant: Neville James Harimate; Respondent: New Zealand Police
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 22 February 2023
- Procedural Posture
- Criminal Appeal Against Conviction / Permission to Appeal Out of Time Granted; Appeal Determined on the Papers
- Outcome
- Permission to appeal out of time granted; appeal allowed; convictions quashed.
- Legal Topics
- Conviction Quashing, Lapsed Protection Order, Miscarriage of Justice, Guilty Plea
Source-derived case record
Summary, issues, holding and outcome
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Parties
Neville James Harimate
Appellant
New Zealand Police
Respondent
Procedural Posture
Criminal Appeal Against Conviction / Permission to Appeal Out of Time Granted; Appeal Determined on the Papers
Legal Issues
- 1 Whether a conviction can stand where the underlying protection order had lapsed and therefore the offence could not be committed in law
- 2 Whether permission to appeal out of time should be granted on the basis of a miscarriage of justice
- 3 Whether a guilty plea can validate a charge that is legally impossible to commit
Ratio Decidendi
Because the temporary protection order had lapsed, the statutory offences charged could not lawfully be committed; therefore the convictions were unsustainable and had to be quashed, and permission to appeal out of time was granted to correct the miscarriage of justice.
Court Disposition
Permission to appeal out of time granted; appeal allowed; convictions quashed.
Orders
- Permission to appeal out of time granted
- Appeal allowed
Full Case Text
Judgment text and source record
1 paragraphs
HARIMATE v POLICE [2023] NZHC 269 [22 February 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-000398[2023] NZHC 269BETWEEN NEVILLE JAMES HARIMATEAppellantAND NEW ZEALAND POLICERespondentHearing: On the papersCounsel: N D F Bond for AppellantWN Fotherby and F Wu for RespondentJudgment: 22 February 2023JUDGMENT OF DOWNS JThis judgment was delivered by me on Wednesday, 22 February 2023 at 4 pm.Registrar/Deputy RegistrarSolicitors/Counsel:Crown Solicitor, Auckland.N D F Bond, Auckland.[1] Neville Harimate pleaded guilty to three charges of breaching a protectionorder in 2012. It is now clear—and accepted by the prosecution—no protection orderexisted, as the (temporary) order had lapsed. It follows Mr Harimate pleaded guiltyto an offence that could not in law be committed.[2] That the protection order had lapsed was not confirmed until recently, meaningJanuary 2023. Mr Harimate seeks permission to appeal his conviction out of time onthe basis justice has miscarried. The respondent offers no opposition to permissionbeing given, or to the appeal being allowed. The parties also agree the case could bedetermined on the papers, meaning without a hearing.[3] I grant permission for an out of time appeal and allow the appeal. WhileMr Harimate pleaded guilty, he could not be guilty of an offence which could not becommitted in law. No recitation of authority is required.Result[4] Permission is granted, the appeal allowed, and the convictions quashed...Downs J