Green v Police

[2015] NZHC 2852

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE ITNERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF RETRIAL.  PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S

202 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-80 [2015] NZHC 2852

BETWEEN

GLENN GREEN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	On the Papers
Counsel:	A D Couchman for Appellant M R Harborow for Respondent
Judgment:	17 November 2015

JUDGMENT OF WHATA J

This judgment was delivered by Justice Whata on

17 November 2015 at 3.00 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Meredith Connell, Crown Solicitors, Auckland

Counsel:

A D Couchman, Auckland

GREEN v NEW ZEALAND POLICE [2015] NZHC 2852 [17 November 2015]

[1]      In my judgment of 22 September 2015, I allowed Mr Green’s appeal against conviction and set it aside.1   I invited submissions on whether an order for retrial is sought or opposed, there being no submissions previously filed addressing the appropriate relief.

[2]      The parties have now filed submissions.  Mr Harborow, for the respondent, submits:

(a)       The police do not intend to pursue a further trial;

(b)Nevertheless,  the  Court  should  direct  a  new  trial  be  held  under s 233(3)(b) of the Criminal Procedure Act 2011.

(c)      It is not appropriate for a judgment of acquittal to be entered given the conviction has been set aside because of legal error at trial, but there remains evidence on which a Judge could convict Mr Green.

(d)      Adams on Criminal Law states:2

The conventional approach is for the Court to order a retrial but leave it to the Crown to determine whether to proceed further, an approach   which   respects   the   “important   broad   constitutional principle that the Crown prosecutes and the Court adjudicates”:  M (CA663/08) v R [2010] NZCA 302, at [47]. …

The  Court  will  normally  order  a  retrial  if  an  appeal  against conviction is allowed because of the conduct of the appellant’s trial counsel: R v J (CA360/06) [2007] NZCA 141 at [20]-[21].

[3]      Mr Couchman, for the appellant, submits (in summary) that as the police have no intention of proceeding with a re-trial, this means that the charge will ultimately be dismissed in the District Court under s 147 of the Criminal Procedure Act 2011.  He also emphasised that a decision to order a re-trial or direct a verdict of

acquittal is discretionary citing Banks v R3  and R v Accused.4    In the latter case the

1      Green v Police [2015] NZHC 2280.

2      Bruce Robertson (ed) Adams on Criminal Law (online ed, Brookers) at [CPA233.02(2)].

3      Banks v R [2015] NZCA 182 at [22].

4      R v Accused (1996) 13 CRNZ 561 (CA).

Court of Appeal declined to order a re-trial because the appellant had already served a significant portion of his sentence.

Assessment

[4]      This case was fundamentally about trial counsel error. As Mr Couchman fairly concedes, there is evidence on which a Judge could convict.5 The decision not to prosecute remains a matter for the Crown.6 Advance notice of a decision not to prosecute does not compel, in this case, an acquittal. Conversely, a direction to retry better reflects the true import of my decision, namely to correct procedural injustice.

[5]      On that basis I confirm that the appeal has been allowed, the conviction set aside and I direct that a new trial be held pursuant to s 233(3)(b) of the Criminal

Procedure Act 2011.

5      I also address the weaknesses of Mr Green’s purported defence in my judgment at [73] and [75].

6      Adams on Criminal Law, above n 2 at [CPA233.02(2)] citing M(CA663/08) v R [2010] NZCA

302 at [47].