Greensmith v Police
[2022] NZCA 190
•18 May 2022 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA199/2021 [2022] NZCA 190 |
| BETWEEN | MICHAEL NOEL GREENSMITH |
| AND | NEW ZEALAND POLICE |
| Court: | Courtney, Thomas and Duffy JJ |
Counsel: | Applicant in Person |
Judgment: | 18 May 2022 at 10 am |
JUDGMENT OF THE COURT
AThe application for an extension of time for leave to appeal is granted.
BThe application for leave to appeal is declined.
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REASONS OF THE COURT
(Given by Courtney J)
Introduction
In 2017, following a three-day trial in the District Court at Auckland, Mr Greensmith was found guilty of two charges of assault and one of resisting a constable in the exercise of their duty.[1] Judge Powell declined his application for a discharge without conviction.[2] Mr Greensmith was fined $200 on each of the assault charges, and ordered to pay reparation to the complainant totalling $500 and court costs. On the charge of resisting a police constable Mr Greensmith was fined $150 and ordered to pay court costs.[3]
[1]Police v Greensmith [2017] NZDC 23507 [Trial judgment].
[2]Police v Greensmith [2017] NZDC 29631 [Discharge and Sentencing judgment].
[3]At [22].
The District Court Judge described the offending and Mr Greensmith’s defence in the following terms:
[2] The first of the assault charges arose on the evening of 25 July 2016 when … Mr Greensmith came out of his flat at Harbour View Road, Point Chevalier, and threw a bucket of water over his landlady, Nancy Fong-Anae, as she was walking up a set of stairs located outside Mr Greensmith’s flat up to her own flat, directly above Mr Greensmith’s.
[3] The remaining charges arose the next day. On the morning of 26 July 2016, … Mr Greensmith threw a further bucket of water over Ms Fong-Anae as she walked down her stairway. After the Police arrived to investigate, … Ms Fong-Anae identified Mr Greensmith [and] he was arrested by Constable Kalra but Mr Greensmith prevented Constable Kalra [from] taking him into custody by closing the door of his flat against Constable Kalra.
[4] Mr Greensmith has denied assaulting Ms Fong-Anae on either occasion and/or that he resisted Constable Kalra. Instead Mr Greensmith contends that none of the evidence relied on by the prosecution is credible. Mr Greensmith has submitted that he was the victim of an elaborate conspiracy, orchestrated by Ms Fong-Anae, in which not only Ms Fong-Anae, but other tenants at Harbour View Road and the Police participated in order to assist Ms Fong-Anae to terminate his tenancy …
Downs J dismissed Mr Greensmith’s appeals against both his convictions and sentence.[4] Mr Greensmith applies for an extension of time to apply for leave to bring a second appeal.
[4]Greensmith v Police [2018] NZHC 2262 [Appeal judgment].
The application for leave to bring a second appeal is two and a half years out of date. There was no opposition to this application and we therefore grant the extension.
Application for leave
Under ss 237(2) and 253(3) of the Criminal Procedure Act 2011, this Court must not grant leave for a second appeal unless it is satisfied the appeal involves a matter of general or public importance or that a miscarriage of justice may have occurred or may occur unless the appeal is heard. This is a high threshold.[5]
[5]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.
In Mr Greensmith’s application for leave to appeal he states his grounds as:
… I had already thrown three buckets of water over her and was standing on my desk in the bedroom waiting to run around the other side of the house to chuck another bucket of water over her, she told the policeman where I was standing behind heavily covered windows. There was no assault of Fong‑Anae as after I chucked the bucket of water over her she put her hand to her face her thumb to her nose and wiggled her fingers at me. There are other tenancy rulings stating that she should not be allowed to abuse the legal process in this manner.
Mr Greensmith did not file written submissions in support of his application, notwithstanding several directions to do so.[6] The application has been considered on the basis of the case on appeal and the respondent’s written submissions.
[6]Minutes of French J: Greensmith v Police CA199/2021, 24 August 2021; 23 November 2021; 8 December 2021; and 2 February 2022.
In his decision Downs J recorded the four grounds of appeal advanced by Mr Greensmith. These were: Mr Greensmith had not been represented at the trial; Mr Greensmith was excluded from the courtroom during parts of the trial; the police officers who testified were not those who had attended the incident; and the finding of guilt was “not supported by the evidence or law”.[7] The Judge dealt with each ground comprehensively.
[7]Appeal judgment, above n 4, at [3].
As to the first ground, Mr Greensmith had been represented by the Public Defence Service and then by two barristers assigned by the Legal Services Agency. All had withdrawn. The Judge inferred that Mr Greensmith’s instructions had compromised their ability to represent him.[8] The third barrister, Mr Walker, also withdrew but was appointed amicus curiae, requiring him to assist Mr Greensmith to the extent that he would accept help (a role now known as standby counsel).[9] Mr Walker filed submissions on Mr Greensmith’s behalf, and cross-examined the complainant and the police witnesses. The Judge was satisfied the trial was fair.[10]
[8]At [11].
[9]Fahey v R [2017] NZCA 596, [2018] 2 NZLR 392 at [64].
[10]Appeal judgment, above n 4, at [9] and [13]–[14].
As to the second ground, the Judge accepted Mr Greensmith had been excluded from the courtroom during the trial. The reasons could not be identified. However, the Judge was satisfied that the period of exclusion was not more than 55 minutes of the three-day trial and in circumstances where the witness giving evidence at the relevant times had only marginal importance. Further, Mr Walker had remained in court throughout to protect Mr Greensmith’s interests. There was, therefore, no adverse risk to the fairness of the trial.[11]
[11]At [15]–[22].
As to the third ground, the Judge rejected the complaint that the officers who gave evidence were not those who had attended the incident. He found this contention was not supported by the evidence.[12]
[12]At [23]–[24].
As to the final ground, the Judge found the finding of guilt was open to the trial judge. Mr Greensmith’s defence was that he was the victim of a conspiracy to evict him from his tenancy. The Judge was satisfied this matter had been fully and fairly dealt with in the District Court and the conclusion as to Mr Greensmith’s guilt was available.[13]
[13]At [25]–[28].
The Judge was also satisfied that the District Court Judge had correctly determined the application for discharge without conviction, having applied settled methodology and taken into account the relevant factors.[14]
[14]At [30].
Although Mr Greensmith appealed his sentence, the Judge recorded that Mr Greensmith did not make submissions in relation to the sentences imposed. The Judge considered the sentencing outcome was available for the reasons that had been given in the District Court.[15]
[15]Appeal judgment, above n 5, at [31].
We see no error by the Judge, and Mr Greensmith does not identify any error. It is evident that Mr Greensmith wishes to relitigate the defence he advanced at trial. However, that is not the purpose of a second appeal. The subject matter of the proposed second appeal — convictions for minor assault for which fines were imposed — cannot possibly be described as matters of general or public importance. We are satisfied that no miscarriage of justice may have occurred or may occur if the appeal is not heard.
Result
The application for an extension of time for leave to appeal is granted.
The application for leave to appeal is declined.
Solicitors:
Crown Law Office, Wellington for Respondent
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