The Court of Appeal has convicted Andrew Lake of causing the death of New Zealander Mary McKee after it was revealed he was accidentally acquitted by the Supreme Court.

Lake had admitted the offence during a Supreme Court trial, but the charge was never put to the jury, as the court was under the mistaken belief that a conviction had been recorded.

In a judgment released on Wednesday, the Court of Appeal recorded a conviction against Lake, despite concerns that it may set a dangerous precedent.

The judgment written by Sir Scott Baker, president of the Court of Appeal, said: “The judge made an error of law. The circumstances are most unusual and we would hope unique.

“It is common ground that the order we are making meets the justice of the case. In our view, it is the practical solution to remedy what would otherwise be an injustice.

“As we have power to do so, we now make the order.”

The court ruled that the sentence put in place by the judge — eight months in prison suspended for two years — would remain undisturbed and would run from the time of the original sentence.

Mrs McKee died as a result of a boat collision in Hamilton Harbour on June 1 last year.

She was in an inflatable boat with her husband, Arthur McKee, and skipper Charlie Watson when a motorboat piloted by Lake rode over them.

Mr McKee and Mr Watson both suffered serious injuries in the collision, but Mrs McKee drowned after she was knocked off the boat unconscious.

The court heard that in the aftermath of the crash, Lake helped search for the injured parties and turned himself into police immediately after returning to shore.

He told officers that he may have been going too fast, but could not see the second boat as it had no lights.

Lake denied a charge of manslaughter, but during the trial he offered a guilty plea to the lesser offence of causing death by reckless driving.

That lesser charge however was not put before the jury as Jerome Lynch, lawyer for Lake, mistakenly told the court it was unnecessary to do so.

A jury found him not guilty of manslaughter, but he was sentenced the next week for causing injury to both Mr McKee and Mr Watson.

He was also sentenced for causing the death of Mrs McKee by reckless driving before the courts realised he had not been convicted of that offence.

Cindy Clarke, Deputy Director of Prosecutions, argued the Court of Appeal had the power to replace Lake’s acquittal with a conviction.

But Mr Lynch raised concerns that such a decision could set a dangerous precedent and suggested the court should make no order.

In the judgment, Sir Scott wrote that in the unusual conditions the Court of Appeal could and should substitute Lake’s acquittal with a conviction for causing death by reckless driving.

He said: “The respondent has been acquitted of an offence of which he would inevitably have been convicted had the matter been left to the jury as it should have been.

“The respondent admitted his guilt from the outset and maintains that admission. The only reason why there is no conviction against him is that his plea became a nullity when the Crown did not accept it and the judge did not leave the alternative offence to the jury.

“Had she done so, a conviction would have been inevitable.”

• UPDATE: an earlier version of this story mistakenly reported that Andrew Lake was sentenced to an eight-year suspended sentence. The penalty was actually an eight-month suspended sentence. We apologise for the error.

• It is The Royal Gazette’s policy not to allow comments on stories regarding court cases. As we are legally liable for any slanderous or defamatory comments made on our website, this move is for our protection as well as that of our readers. To read the Court of appeal ruling, click on the PDF link under “Related Media”