Greensmith v Police

[2021] NZHC 1001

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000336

CRI-2020-404-000389 [2021] NZHC 1001

BETWEEN

MICHAEL NOEL GREENSMITH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	4 May 2021
Appearances:	No appearance by Appellant RJ Morrison for Respondent
Judgment:	6 May 2021

REASONS FOR JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 6 May 2021 at 12.30pm

Registrar/Deputy Registrar

Date……………………

Solicitors:      Meredith Connell, Auckland To: M Greensmith, Auckland

GREENSMITH v NZ POLICE [2021] NZHC 1001 [6 May 2021]

Introduction

[1]                 On 27 October 2020, Judge Roberts in the Auckland District Court refused to remit of a number of parking and similar fines owed by Mr Greensmith.1

[2]                 Mr Greensmith  appeals  this  decision.  I  should  note  at  the  outset  that  Mr Greensmith did not file any submissions on his appeal or appear at the appeal hearing. The following is accordingly taken from the written materials that are before the Court, and from the judgment under appeal.

Factual Background

[3]                 Mr Greensmith states in his notice of appeal that, in 2016, his (now former) landlord arranged to have his car towed and crushed. He says that he was made homeless as a result and that he purchased a car to live in but began receiving infringement notices from Police. He produced his own records in the District Court showing that he had received around 16 fines between 14 March 2017 and 31 May 2017. The total unpaid fines amount to $4,726.2

District Court decision

[4]                 In his judgment, Judge Roberts noted that he initially had difficulty isolating the issue in the matter. Mr Greensmith appeared to argue that he should not have to pay the fines as he had incurred them at a time when he was homeless and forced to live in his vehicle. The Judge referred to other proceedings relating to problems Mr Greensmith has had with his landlord. These were criminal proceedings relating to assaults (including assaults on his landlord).3 That matter had proceeded to trial before Judge Powell (as he then was) in the District Court.4 Mr Greensmith subsequently appealed to the High Court, where his appeal was dismissed by Downs J.5

1      District Court v Greensmith [2020] NZDC 25535.

2      At [1] and [3].

3 See the Memorandum of counsel for the respondent for callover, 9 February 2021 at [3].

4      New Zealand Police v Greensmith [2017] NZDC 23507.

5      Greensmith v New Zealand Police [2018] NZHC 2262.

[5]                 Judge Roberts observed that Mr Greensmith “appears to be consumed with claims of illegal and unfair misbehaviour which he lays unashamedly at the doorstep of the female landlord.”6 The Judge noted that Mr Greensmith alleged that his landlord had harassed him and “ruined [his] life” with her actions, which included seizing his passport and stealing an art collection owned by him valued at $80,000. Noting that these considerations were irrelevant and did not impact on Mr Greensmith’s liability for the infringement notices, the Judge declined to remit the fines.

Submissions

[6]As noted, Mr Greensmith did not file any written submissions on the appeal.

[7]                 The respondent filed written submissions in advance of the appeal hearing, in which it submits that the appeal should be dismissed for lack of jurisdiction. Counsel refers to s 88AE of the Summary Proceedings Act 1957 (the Act), which gives a District Court Judge the power to remit fines (among other powers). Section 89 of the Act provides that where a Judge acts under s 88AE to substitute fines for sentences of community work, community detention or home detention, or the defendant is imprisoned pursuant to a warrant of commitment, he or she may appeal through the usual pathway under s 244 of the Criminal Procedure Act 2011. There is no mention, however, of any right to appeal against a refusal to remit fines. The respondent cannot discern any other avenue through which Mr Greensmith can challenge the Judge’s decision in this Court.

Discussion

[8]                 Mr Greensmith’s appeal was due to be heard by me at 2.15pm on 4 May 2021. However, at 2.15pm, I was advised by the Registrar that at least to that point, there was no appearance by Mr Greensmith. I accordingly directed the Registrar to wait a further five minutes to see if Mr Greensmith was simply running late.

[9]                 At 2.20pm, the Registrar advised me that Mr Greensmith had still not appeared. I accordingly had the matter called in Court (which by that time was at approximately

6 District Court v Greensmith, above n 1, at [4].

2.25pm). The matter was called on the tannoy system, including that the hearing was taking place in courtroom 13. Mr Greensmith still did not appear. In order to ensure that Mr Greensmith had an appropriate opportunity to prosecute his appeal, I adjourned until 2.45pm.7

[10]            On reconvening at 2.45pm, Mr Greensmith had still not appeared. I was satisfied that Mr Greensmith was aware of the hearing date and time, given correspondence between the Registry and Mr Greensmith on 21 and 22 April 2021, including in which Mr Greensmith said “Yes I still believe I want the 4th May to go ahead I have bigger things in my life than this but will wait and see what unfolds in the said documentation”. Mr Greensmith’s statement that he still believed he wanted the 4th of May to go ahead was in response to the Registry’s request that he confirm the hearing date and time of 4 May 2021 at 2.15pm, given that date had been set at callover on 12 March 2021, at which Mr Greensmith had also not appeared.

[11]            I was satisfied that Mr Greensmith has had a proper opportunity to pursue his appeal but had not done so. Indeed, the appeal was originally filed in August 2020, and had been the subject of a number of callovers in the Criminal Appeals List since that date.

[12]            As noted, Mr Greensmith had not filed any substantive written submissions in support of his appeal. Indeed, in response to a communication from the Registry on 20 April 2021, he confirmed that he would not be filing submissions and that he would “to the best of his ability rely on legal reasoning”.

[13]            In the above circumstances, I considered the only appropriate outcome was to dismiss Mr Greensmith’s appeal. I did so in Court on 4 May 2021. For completeness, it is appropriate that I record that had Mr Greensmith appeared at the hearing of his appeal, it is highly likely the appeal would have been dismissed in any event. For the reasons given by counsel for the respondent, it does not appear that this Court has jurisdiction to hear an appeal from Judge Roberts’s decision. In theory, a decision pursuant to s 88AE of the Act may be amendable to an application for judicial review. However, I express no particular view on that. Further, even if this Court did have

7      I could not adjourn for any longer as I had another appeal hearing later that afternoon.

jurisdiction, I would still need to be persuaded that, on the materials before him, the Judge erred in not remitting the fines. It does not appear that Mr Greensmith had put before the Judge any evidence of his financial position or other matters which might have been relevant to whether to remit the fines. I accordingly discern no basis in the materials before the Court to suggest that the Judge erred in his decision. In particular, what appears to be Mr Greensmith’s ongoing and lengthy dispute with his former landlord is not relevant to whether the fines ought to have been remitted.

Fitzgerald J