Green v Police - [2016] NZCA 542

IN THE COURT OF APPEAL OF NEW ZEALAND

CA196/2016
[2016] NZCA 542

BETWEEN	GLENN GREEN Applicant
AND	NEW ZEALAND POLICE Respondent

Court:

Randerson, Duffy and Whata JJ

Counsel:

Applicant in Person
M J Lillico for Respondent

Judgment:

(On the papers)

17 November 2016 at 2.30 pm

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

On 15 February 2016 the applicant pleaded guilty in the District Court to one charge of criminal harassment. He was sentenced to 12 months imprisonment.[1] Special release conditions were imposed under s 93 of the Sentencing Act 2002. The applicant then appealed to the High Court against the imposition of the special release conditions. His appeal was dismissed by Keane J on 20 April 2016.[2]
[1]Police v Green [2016] NZDC 3662.
[2]Green v Police [2016] NZHC 745.
The applicant now seeks leave to bring a second appeal pursuant to s 253 of the Criminal Procedure Act 2011. Leave for a second appeal must not be given unless the Court is satisfied that the appeal involves a matter of general or public importance or a miscarriage of justice may have occurred, or may occur, unless the appeal is heard.[3]
[3]Criminal Procedure Act 2011, s 253(3).
The appeal is opposed by the respondent. Miller J has directed that the application be determined separately from the proposed appeal and on the papers.[4]

The proposed appeal ground

[4]Green v R CA196/16, 22 June 2016 [Minute of Miller J].

The sole ground of appeal the applicant raised in his application for leave is that a miscarriage of justice had occurred by the imposition of the special conditions. The applicant wishes to argue that the special conditions imposed on him were improperly imported from a sentence for previous offending that had been set aside on appeal. In supporting submissions received some five months after his application for leave, the applicant raised for the first time a complaint that he had assigned counsel who did not appear in the High Court for the purposes of his appeal. He claims he was prejudiced in consequence.

Discussion

We are satisfied there is no issue of general or public importance that would justify the granting of leave for a second appeal. Nor are we persuaded that a miscarriage of justice may have occurred or may occur unless the appeal is heard. The first ground the applicant wishes to advance was canvassed in the High Court. We do not detect any error of approach in Keane J’s decision. In particular, the imposition of the special conditions was entirely appropriate in terms of s 93 of the Sentencing Act, irrespective of his successful appeal in respect of the earlier offending. There remained a long history of offending of this nature which justified the special conditions for all of the purposes set out in s 93(3) including, most importantly, provision for the reasonable concerns of the victim of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NZCA 542
Decision Date: 17 November 2016 at 2.30 pm

CaseChat Overview and Summary

Glenn Green, an applicant, applied for leave to bring a second appeal against a decision of the High Court in New Zealand. The High Court had dismissed the applicant's appeal against the imposition of special release conditions under s 93 of the Sentencing Act 2002. The applicant was sentenced to 12 months imprisonment for criminal harassment and the High Court upheld the special release conditions imposed by the District Court. The Court of Appeal was required to decide whether the application for leave to bring a second appeal should be granted.

The Court of Appeal considered whether the proposed appeal involved a matter of general or public importance or a miscarriage of justice may have occurred or may occur unless the appeal was heard. The Court found that the proposed appeal did not involve a matter of general or public importance. The Court was also not persuaded that a miscarriage of justice may have occurred or may occur unless the appeal was heard. The Court found that the imposition of the special conditions was entirely appropriate in terms of s 93 of the Sentencing Act, irrespective of the applicant's successful appeal in respect of the earlier offending. The Court also found that the applicant had not provided any documentary material to support his late assertion that he had counsel who did not appear and that he was more than capable of making appropriate submissions on appeal.

The Court of Appeal declined the application for leave to bring a second appeal. The Court was satisfied that there was no issue of general or public importance that would justify the granting of leave for a second appeal and that a miscarriage of justice had not occurred or may occur unless the appeal was heard. The Court found that the imposition of the special conditions was entirely appropriate and that the applicant was more than capable of making appropriate submissions on appeal.

Orders