Greenland v The King
[2024] NZHC 3227
•1 November 2024
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2024-419-000091
[2024] NZHC 3227
IN THE MATTER OF an appeal against conviction pursuant to s 232 of the Criminal Procedure Act 2011 BETWEEN
RICHARD PAUL GREENLAND
Appellant
AND
THE KING
Respondent
Hearing: 16 October 2024 Appearances:
S D Taylor for Appellant A Penney for Respondent
Judgment:
1 November 2024
JUDGMENT OF VAN BOHEMEN J
[appeal against conviction]
This judgment was delivered by me on 1 November 2024 at 12:30 pm.
Registrar/Deputy Registrar
……………………………..
Counsel/Solicitors:
S D Taylor, Hamilton Crown Solicitor, Hamilton
GREENLAND v R [2024] NZHC 3227 [1 November 2024]
[1] On 26 January 2024, Richard Greenland was found guilty of two charges of assault with a weapon1 by Judge K B F Saunders in a judge alone trial in the District Court at Hamilton.2 Mr Greenland appeals his conviction.
[2] Mr Greenland says a miscarriage of justice occurred because the Judge erred in declining an application for dismissal, rejecting defence evidence and relying on propensity evidence.
The offending
[3] The police summary of facts records that, on 14 November 2022, Mr Greenland was at an address in Hamilton. At around 5.00 am, he lit a fire in the backyard, fuelling it with rubbish and petrol from a 20-litre petrol can.
[4] Police attended and spoke to Mr Greenland. He immediately doused himself in petrol and made repeated threats to kill himself by immolation. Mr Greenland then threw the petrol can towards police several times, causing streaks of petrol to catch fire. The streaks of fire came within three to four metres of police.
[5] The fire was extinguished by a fire appliance and Mr Greenland was doused in powder from a fire extinguisher. Mr Greenland then ran at police, pouring the remainder of the petrol can on the attending police officers. The officers deployed pepper spray and arrested Mr Greenland.
District Court decision
[6] Judge Saunders gave her decision and verdicts in an oral judgment given the day after the hearing had concluded. The Judge noted Mr Greenland was facing four charges of assault with a weapon in respect of the alleged offending on 14 November 2022.3 Charges 1 and 2 related to the use of the petrol as a weapon when pouring petrol on the fire, while charges 4 and 6 related to the use of the petrol as a weapon when directing petrol at the police officers.4 The Judge noted that the Crown had to
1 Crimes Act 1961, s 202C. Maximum penalty five years’ imprisonment.
2 R v Greenland [2024] NZDC 3062 [Decision on appeal].
3 At [2].
4 The Judge dismissed charges 3 and 5 at an earlier hearing.
prove beyond reasonable doubt that Mr Greenland assaulted the police officers, using something as a weapon.5
[7]The Judge summarised the key issues as follows:
[6] The issue for charges 1 and 2 is whether the petrol can was deliberately used as a weapon, in essence as a flame-thrower which is the Crown case, or whether you were only using it to stoke the fire which is the defence case. So for charges 1 and 2 the act of pouring petrol on the fire is not in dispute. My focus is on your intention when you did that.
[7] The issue for charges 4 and 6 is whether the petrol was deliberately used as a weapon which is the Crown case or whether an assault occurred because the defence for these charges is it did not happen.
[8] The Judge said she had to consider each charge separately.6 She recorded that it was open to her to accept Mr Greenland’s evidence in all material respects and find him not guilty, not accept Mr Greenland’s evidence but be left with reasonable doubt and find him not guilty, or reject Mr Greenland’s evidence and then assess all the other evidence and ask whether that evidence proved the charge she was considering.7
[9] The Judge considered propensity evidence offered by the Crown, which she summarised as follows:
2021 offending
[17] On 16 February 2021 you were angry with your former partner, Ms D because you found her in the company of another male. You went to his property and to the garage and found the two of them there. You had a bottle of petrol in your hands which you poured on Ms D, saturating her top. You had a lighter with you which you repeatedly flicked on and off in front of Ms D. You threatened Ms D, telling her you would disfigure her.
2013 offending
[18] On 28 October 2013 two police officers came to your home. While you were speaking with the officers you became agitated and picked up a modified fire extinguisher which was filled with carbon dioxide and petrol. You ignited a blow torch and threatened the officers, telling them the fire extinguisher was capable of squirting fuel up to 40 feet. You ignited the propane torch and held it next to the nozzle of the fire extinguisher causing the officers to leave your home.
5 At [3].
6 At [8].
7 At [12]–[15].
[19] Another officer attended, entered the garage, and spoke with you. He was approximately five metres from you when you ignited the propane gas torch and held it over the nozzle of the fire extinguisher threatening to use it on police.
[20] On both occasions you were convicted of threatening to cause grievous bodily harm. You pleaded guilty to the charges.
[10] The Judge accepted the Crown submission that this propensity evidence established a pattern of behaviour of offending of using petrol and fire in circumstances where Mr Greenland threatened to do grievous bodily harm to his former partner and to police officers. The Judge said this was evidence she could take into account in deciding if Mr Greenland used petrol as a weapon in the present case.8 The Judge recorded that propensity evidence was only one item of evidence and that she had to consider all the evidence in order to reach a verdict.9
[11] The Judge then considered the evidence given by four police officers who attended the address, Mr Greenland, and Ms D, Mr Greenland’s former partner.10
[12] The Judge found Mr Greenland not guilty on charges 1 and 2 as she could not reject Mr Greenland’s explanation that his intention was to create a buffer and not to assault the police officers.11
[13]In respect of charges 4 and 6, the Judge summarised Mr Greenland’s evidence:
[55] As for your conduct after the fire was extinguished at charges 4 and 6 you said that the fire went out pretty much instantly. First of all you ran towards the back of the property but that was not going to work. You could not breathe and so you dropped the petrol can by the fence-line back towards where you had been standing and walked towards the house. You had your hands up and you said to the police officers: “I can’t breathe, I can’t breathe, I give up.” You also said you had recently undergone reconstructive surgery on your left shoulder (inferring but not said it would be difficult to use it). You remained firm in cross-examination. There was no inconsistency of any substance. You did not throw petrol on either officer as they alleged. You had left the petrol can by the fire and you had your hands up and had given up.
8 At [26].
9 At [27].
10 At [28]–[57].
11 At [66]–[71].
[14]The Judge observed that Ms D’s evidence corroborated that account:
[57] Now after the fire was extinguished [Ms D] saw smoke in the back yard and she looked out directly from the kitchen window. She had a clear view. There was nothing obstructing her view. She said that she heard you say: “Okay. I give up” and you came through the smoke with your arms raised, as much as you could because of the surgery to your left shoulder. She too was not swayed in cross-examination and remained firm that is what she saw, you giving up.
[15] The Judge recorded that both counsel for Mr Greenland and the Crown accepted that charges 4 and 6 required an assessment of credibility.12 The Judge noted that Mr Taylor, counsel for Mr Greenland had submitted that the Court could not reject Mr Greenland’s evidence that he had not assaulted either officer and that Ms D’s evidence about where she found the petrol can was consistent with Mr Greenland’s evidence as to where he had dropped it. In Mr Taylor’s submission, the Crown witnesses had given an inconsistent and unreliable account, whereas Mr Greenland and Ms D had been entirely consistent.13
[16]The Judge also referred to other matters raised by Mr Taylor as follows:
[64] Although Mr Taylor addressed the Crown evidence highlighting some matters that should concern me and issues to consider such as accidental or running momentum, because the defence is “it did not happen”, I do not intend to consider the issue of intent for these charges. It either happened or it did not.
[17]The Judge concluded:
[73] [Mr Greenland says] this did not happen. You did not assault either constable, you had given up. Ms D corroborates your account. I bear in mind the relationship between the two of you and all I know of it, over the years. You remained firm in cross-examination you did not do this.
[74] Equally, the two police officers remained firm in their evidence you did do it.
[75] Mr Greenland I do not accept your evidence. I find it implausible in the circumstances the evidence tells me you found yourself in. At this stage I think you did see the police officers as a threat. The fire had been extinguished and they were, for all intents and purposes, blocking your entry into the house. Dousing someone with petrol is a highly unusual act and the propensity evidence establishes a tendency on your part to do just that, to throw petrol at someone in anger. I therefore put your evidence aside.
12 At [60] and [62].
13 At [62]–[63].
[76]It follows I do not accept Ms D’s evidence on this issue either.
[77] In considering the evidence of both constables I remind myself that a person’s recollection of events depends very much on their perception of it at the time. We remember what is important to us. It is not unusual for honest witnesses to give slightly different versions when describing the same incident. Indeed, if witnesses were word perfect that would cause some concern. Given what was going on I am not surprised the officers could not be sure precisely where the other was, but they were in close proximity. Equally, I do not think much turns on the language used to describe your conduct, pouring or throwing. It was quick. The pepper spray was deployed almost at the same time and there was very little distance between you. The end result is that each officer said you deliberately used petrol as a weapon and they could smell and feel it on their body.
[78] I believe Constable Kerr-Bell was telling the truth. I accept his evidence. I believe Constable Main was telling the [truth]. I accept his evidence.
[18]Accordingly, the Judge found Mr Greenland guilty of charges 4 and 6.14
Application for dismissal
[19] In a judgment issued the same day as Mr Greenland’s conviction, Judge Saunders declined Mr Greenland’s application for dismissal under s 147 of the Criminal Procedure Act 2011 (CPA), brought on the basis that a failure by the Crown to provide disclosure in a timely manner was an abuse of process.15
[20] Mr Taylor, counsel for Mr Greenland, said the non-disclosure comprised 111 calls and transcripts, comms audio, and statements and notebook entries relating to possible eyewitnesses.16
[21] The Judge accepted that there had been a significant failure by the police to comply with prosecutorial disclosure obligations. However, she considered that failure to be inadvertence and inefficiency rather than deliberate conduct.17 The Judge observed that, when it became apparent during trial that material had not been previously disclosed, it was remedied as soon as practicable and before the defence case.18 The Judge concluded that, in her view, the non-disclosure did not damage the
14 At [79].
15 R v Greenland [2024] NZDC 1507 [Dismissal application decision].
16 At [10] and [13].
17 At [20].
18 At [21].
prosecution case or advance the defence case and that it was difficult to identify any prejudice to Mr Greenland as a result.19
[22] The Judge observed that the failures to comply with well-known disclosure obligations pointed to a failure to understand the prosecution/investigation process rather than a deliberate decision to undermine the legitimacy of the process and fair trial rights.20 The Judge was sure Mr Greenland’s rights to a fair trial had not been breached.21
The appeal
[23]Mr Greenland’s grounds of appeal are that the Judge erred in:
(a)declining the application for dismissal under s 147 of the CPA on the basis of significantly late disclosure and non-disclosure of other matters by the Crown;
(b)rejecting the defence evidence and version of events, which he says raised reasonable doubt; and
(c)finding propensity evidence supported a finding of guilt on two charges.
[24]Mr Greenland says these errors resulted in a miscarriage of justice.
Approach on appeal
[25] Under s 232(2) of the Criminal Procedure Act 2011 (CPA), the Court must allow an appeal if:
…
(b)in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
19 At [22]–[23].
20 At [24].
21 At [25].
(c)in any case, a miscarriage of justice has occurred for any reason.
[26]Otherwise, s 232(3) requires the Court to dismiss the appeal.
[27] Under s 232(4), a miscarriage of justice means any error, irregularity or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial.
[28] Under s 233, if a Court allows an appeal, it must set aside the conviction and take one of the steps provided in s 233(3), including making any other order the Court thinks justice requires.
Section 147 application
Submissions for Mr Greenland
[29] Mr Taylor submits the significantly late disclosure of evidence available at the inception of these charges and failure to provide other relevant disclosure means that the charges ought to have been dismissed pursuant to s 147 of the CPA. He says the failure to provide the 111 calls and transcripts or any comms audio is in direct contradiction of the 2023 Practice Note issued by the then Chief High Court Judge.22 He says no explanation as to the failure has been provided and there is no suggestion that the police did not know about the existence of the material. Similarly, Mr Taylor submits the statements and notebook identified another possible eyewitness and that this had the potential to be of significance to the defence.
[30] Mr Taylor points to this Court’s decision in Attorney-General v District Court at Hamilton, where Randerson J provided a non-exhaustive list of considerations where the Court may stay or dismiss a charge where the prosecution has failed to comply with its disclosure obligations:23
a)Whether the failure to disclose is due to inadvertence, inefficiency or to deliberate conduct;
b)Whether the police or prosecuting agency has acted in good faith;
22 2023 Practice Note “Criminal Disclosure in High Court Trials” HCPN 2023/1 (effective from 8 March 2023).
23 Attorney-General v District Court at Hamilton [2004] 3 NZLR 777 (HC) at [57].
c)Whether the failure to disclose is relevant in the sense that the non- disclosure of the material could damage the prosecution case or advance that of the defence;
d)The extent of any prejudice to the accused in the conduct of his or her defence as a result of the non-disclosure;
e)Whether the accused can nevertheless receive a fair trial without undue delay;
f)Whether remedies short of stay or dismissal could achieve a fair trial (such as an adjournment, the exclusion of evidence, the right to call rebuttal evidence, or a limited stay until relevant material is produced).
[31] Mr Taylor submits the failures in this case mark a significant departure from expected practices as set out in the 2023 Practice Note and resulted in a high level of prejudice to Mr Greenland. He says the decision to not dismiss the charges on this basis was a miscarriage of justice.
Submissions for the Crown
[32] Ms Penney, Crown counsel, submits the Judge was correct to consider the materials disclosed to Mr Greenland during the trial were not relevant to a fact in issue. Therefore, she says the timing of it being disclosed did not create prejudice to the defendant. She submits it was apparent at the conclusion of the trial that none of the materials disclosed during the trial impacted on the ability of Mr Greenland to present his case.
[33] Ms Penney submits there is no basis for a suggestion that there was an intention to deliberately withhold the disclosure. When it became apparent, Ms Penney says it was remedied as soon as practicable and the Judge appropriately identified this as part of her reasoning.
Analysis
[34] I do not consider there is any substance in the submissions advanced by Mr Taylor regarding the Judge’s refusal to dismiss the charges. Despite the assertion of prejudice, Mr Taylor points to none that could be said to have arisen from non- disclosure of the 111 calls, transcripts and audio communications. Mr Taylor acknowledges that the calls would have preceded the actions that gave rise to the
charges. There is no evidential dispute as to who made the 111 calls or their content. They were made by Ms D, who said in evidence that she knew Mr Greenland was in her back yard and had lit the fire and she wanted him removed.
[35] In terms of the considerations identified by Randerson J in Attorney-General v District Court at Hamilton, there is nothing to suggest the non-disclosure was deliberate or caused any prejudice to Mr Greenland in the conduct of his defence. The sanction for non-compliance with the 2023 Practice Note, which applies to criminal trials in the High Court, does not extend to staying or dismissing charges where the breach cannot be said to have caused prejudice.
The evidence at trial
Submissions for Mr Greenland
[36] Mr Taylor submits the Judge erred in rejecting the defence evidence. He says Mr Greenland and Ms D both offered sure and consistent evidence in the face of robust cross examination, confirming Mr Greenland put his hands up and came in the direction of the police officers without the petrol can.
[37] In contrast, he says the evidence of the police officers was inconsistent on whether Mr Greenland poured or threw the petrol on them and submits that this creates reliability issues for the Crown case. He notes the Judge’s finding that the police investigation left much to be desired and that there were no photographs of the scene, alleged weapon or uniforms covered in petrol.
[38] Mr Taylor submits the Judge was wrong to rely on the propensity evidence to prove that Mr Greenland has a tendency to throw petrol at someone in anger. He accepts that any offending involving petrol is unusual but says the propensity evidence actually points to the fact that Mr Greenland has a tendency to ultimately surrender to a third party after using petrol as a buffer.
[39] Mr Taylor says the defence evidence should be preferred and that, even if it is not entirely believed, there is no way to properly exclude it, resulting in reasonable
doubt remaining. Accordingly, he says the finding of guilt in respect of charges 4 and 6 was in error and a miscarriage of justice.
[40] In addition, in oral submissions Mr Taylor submits that, at [64] of the Decision on appeal, the Judge misdirected herself by stating that she did not intend to consider the issue of intent for charges 4 and 6 when intent was clearly an element of the alleged offending. Mr Taylor submits this is a further ground for the Court to find that a miscarriage of justice has occurred.
Submissions for the Crown
[41] Ms Penney submits there has been no miscarriage of justice as the Judge made an assessment about the credibility of the witnesses based on the evidence as presented during the trial. She says the Judge provided sound reasoning for her findings which engaged with the case, including findings of credibility and inconsistencies within witness testimony, in reaching her conclusion. Ms Penney notes that, at trial, Mr Taylor acknowledged any findings on charges 4 and 6 would be a credibility assessment and that the Judge addressed inconsistencies between the Crown witnesses, as raised by Mr Taylor.
[42] Ms Penney submits the Judge appropriately considered the inconsistencies between the police officers and concluded that not much turned on the language of pouring or throwing petrol, noting it was a quick action that occurred while the officers deployed pepper spray. She says the Judge was in the best position to make a credibility determination, given she observed the witnesses throughout the trial.
[43] Ms Penney says the Judge clearly exercised caution in considering the defence evidence and concluding there was a pattern of behaviour based on the propensity evidence. She notes the Judge recorded that, even if she did not accept the defence evidence, that did not mean an automatic determination of guilt. Similarly, Ms Penney notes the Judge said that propensity evidence was only one piece of evidence and that she needed to consider all the evidence to avoid prejudice against Mr Greenland. Ms Penney submits the fact the Judge acquitted Mr Greenland on two of the charges supports this submission.
Analysis
[44] Having read the Notes of Evidence, I do not accept Mr Taylor’s characterisation of the evidence of Mr Greenland and Ms D. The evidence of both reads as an effort to down play and minimise what happened. I see nothing in the transcript that would persuade me to accept that the Judge was wrong to have preferred the evidence of Constable Kerr-Bell and Constable Main. In addition, the Judge had the advantage of seeing and hearing the witnesses when assessing their credibility.
[45] Moreover, the fact the Judge was alert to the need to be sure about the reliability of the evidence on key matters in issue is demonstrated by her decision to put aside all the evidence of Sergeant Harrison. The Judge did so because the Sergeant declined to adjust his evidence at trial, that Mr Greenland had deliberately thrown petrol through the fire towards the constables, to align with his earlier statement that Mr Greenland had thrown petrol through the fire in the general direction of the constables. Since this part of the narrative preceded the events that led to the two charges on which Mr Greenland was found guilty, that was a significant ruling, particularly given Sergeant Harrison’s direct evidence of Mr Greenland throwing petrol on Constable Main.
[46] The fact the Judge found Mr Greenland not guilty on charges 1 and 2 because she could not reject Mr Greenland’s account that his actions in pouring petrol on the fire had not been aimed deliberately at the police officers but had been intended to keep the police away further confirms the care that the Judge took in assessing the evidence and reaching her verdicts.
[47] The distinctions that Mr Taylor seeks to draw between whether or not Mr Greenland threw or poured petrol at or on Constable Kerr-Bell and Constable Main and between whether the petrol can was at waist or shoulder height are not persuasive. On all accounts, the events happened quickly and just after the fire extinguisher had dispersed thick white powder across the scene and Constable Main had deployed pepper spray. It is hardly surprising that accounts varied in some of the details. The differences in detail tend to confirm rather than call into question the veracity and the reliability of the Constables’ evidence.
[48] The evidence that carries a real sense of unreality is that of Mr Greenland and Ms D which was to the effect that, after all of the evident tension that had built up after Mr Greenland had doused himself in petrol and kept the fire alight to maintain a barrier between himself and the police, he suddenly put up his hands and said he was giving up after the fire had been extinguished.
[49] In that regard, I do not accept that the Judge erred in not finding, on the basis of the evidence of the incidents in 2013 and 2021, that Mr Greenland had a propensity to give himself up after using petrol as a buffer. The propensity established by the earlier evidence was, as found by the Judge, to use petrol and fire. It was not to surrender. Even on Mr Taylor’s description of the propensity evidence in his written submissions, the denouement of the 2021 incident came not as a result of Mr Greenland giving up but because a third party intervened and gained possession of the petrol while Ms D ran away.
[50] For all these reasons, I do not accept that the defence evidence should be preferred and that it could not properly be excluded such that a reasonable doubt remained.
[51] With regard to the issue of intent, it is inherent in the charges that Mr Greenland intentionally directed petrol at the police officers. If the trial had been before a jury, the question trail would likely have asked whether the jury was sure that Mr Greenland had intentionally directed petrol at the police officers. In that respect, therefore, the Judge’s statement at [64] of the Decision on appeal that she did not intend to consider the issue of intent is a misstatement.
[52] However, that misstatement must be considered in the context in which it was made — an oral judgment in which the Judge was not giving directions to a jury but was giving her decision based on the evidence and in the light of submissions from the Crown and defence counsel. There was a clear contest in the evidence as to whether, after the fire extinguisher had been used and pepper spray deployed, Mr Greenland had moved towards the police officers and directed petrol at them from a very short distance, as the Crown said, or Mr Greenland had moved towards the fence, dropped the petrol can and put his hands up saying he could not breathe and
was giving up, as the defence said. The contest was not over whether Mr Greenland had intentionally or inadvertently directed petrol at the officers. The defence case was that it had not happened.
[53] That was the essence of what the Judge was saying at [64]. Yes, the Judge should not have said she was not going to consider the issue of intent in relation to charges 4 and 6. But, I am satisfied that the Judge did not in fact exclude that issue because, as she had framed the issue for the charges at [7] of the Decision on appeal, the issue “was whether the petrol was deliberately used as a weapon, which is the Crown case”. Deliberately is another way of saying intentionally. In accepting the Crown case, the Judge found that Mr Greenland had intentionally used the petrol as a weapon.
[54] For these reasons, I am satisfied that the Judge did not exclude consideration of intent from charges 4 and 6 and that no miscarriage of justice occurred.
Result
[55]Mr Greenland’s appeal is dismissed.
G J van Bohemen J
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