Vacating plea of guilty — possession of an airgun — Criminal Procedure Act 2011, s 115 — R v Merrilees [2009] NZCA 59 — R v Enoka [2017] NZHC 2032 — Foley v R [2016] NZCA 607. The defendant applied to vacate a guilty plea to a charge of possession of an airgun except for some lawful, proper and sufficient purpose. Another person had been pursuing him and he turned the gun towards that person and fired several pellets. Initially the defendant was charged with assault with a weapon and unlawful possession of the airgun. His original counsel advised him he could go to trial and plead self-defence, or plead guilty to the charge of possession and the assault charge would be dropped. After discussion with his then-counsel and family, the defendant pleaded guilty to possession of an airgun. It was submitted the guilty plea should be vacated on the basis that the defendant had a tenable defence of self-defence and secondly, that vacating the plea was required in the interests of justice. Section 115(1) of the Criminal Procedure Act (the Act) provides a discretionary power for a guilty plea to be withdrawn by leave of the Court before the defendant has been sentenced or otherwise dealt with. Case law details the circumstances when a Court should exercise that discretion: where the person did not appreciate the nature of, or did not intend to plead guilty to, a particular charge; where on the admitted facts the person could not in law have been convicted of the offence charged; where the plea was induced by a ruling which embodied a wrong decision on a question of law; or where the person's counsel errs in their advice to the accused. Retraction of a guilty plea is only allowed in rare circumstances. This was not a situation where the defendant misunderstood the charge or made a mistake. He had been represented by experienced counsel and knew a selfdefence argument was available when he entered the plea. This was not a situation where the defendant could not in law have been convicted of the offence, and it was not induced by a ruling involving a wrong decision on a question of law. There was no improper pressure on the defendant to plead guilty. As there would be no injustice in requiring the plea to remain, the application was declined. Judgment Date: 2 November 2018.