Greensmith v Police - [2018] NZHC 2262

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000012

[2018] NZHC 2262

BETWEEN
MICHAEL NOEL GREENSMITH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 27 August 2018

Appearances:

Appellant in person

TR Bellingham for Respondent

Judgment:

30 August 2018

JUDGMENT OF DOWNS J

This judgment was delivered by me on Thursday, 30 August 2018 at 1 pm.

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Auckland. Copy to: Appellant.

GREENSMITH v POLICE [2018] NZHC 2262 [30 August 2018]

The appeal

[1] Mr Michael Greensmith was found guilty of two charges of assault and one of resisting a constable in the exercise of duty. The core facts can be stated quickly, and by adopting the sentencing observations of Judge L G Powell, as his Honour then was:1
The first of the assault charges arose on the evening of 25 July 2016 when Mr Greensmith came out of his flat that evening 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, which was directly above Mr Greensmith’s.

The remaining charges arose the next morning. Mr Greensmith threw a further bucket of water over Ms Fong-Anae as she walked down her stairway. After the police arrived to investigate, Mr Greensmith was arrested by Constable Kalra but Mr Greensmith prevented Constable Kalra taking him into custody by closing the door of his flat against Constable Kalra.

[2] Mr Greensmith appeals conviction and sentence. Mr Greensmith is self-represented albeit, he contends, wrongly.

[3] Mr Greensmith filed a 25-page document, to which he spoke briefly. The document is not really a submission. Rather, it is a loose chronology encompassing the trial, events before and after, with extracts from Anatole France and other idiosyncrasies. More instructive is Mr Greensmith’s notice of appeal. It alleges justice miscarried because:

(a)Mr Greensmith was not permitted trial representation.

(b)Mr Greensmith was excluded from trial “during portions of the evidence”.

(c)The Police officers who testified were not in fact the officers who attended the incident.

(d)A finding of guilt is “not supported by the evidence or law”.

1 Police v Greensmith [2017] NZDC 29631 at [2]–[3].

[4]This judgment assumes each comprises a ground of conviction appeal.

Wrongful absence of trial representation?

[5] Mr Greensmith contends he was wrongly tried without a lawyer. The Supreme Court has held when this occurs, there is a presumption of a miscarriage of justice.2 However, that Court has also held is not open to a defendant to assert his or her right to counsel but then, by conduct, repudiate that right’s exercise; or by similar conduct, create a situation “in which, on a proper balancing of the various interests, further delay in the holding of the trial is not to be tolerated”.3 Consequently, an appellate Court “must make a determination concerning the circumstances in which the [defendant] came to be tried without a lawyer.”4 If the defendant was wrongly tried…

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.

Keep reading for free

Create a free CaseChat account to read Greensmith v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NZHC 2262
Decision Date: 30 August 2018

CaseChat Overview and Summary

Michael Noel Greensmith appeals against his conviction and sentence for assault and resisting arrest. The case revolves around two incidents where Greensmith threw buckets of water at his landlady, Nancy Fong-Anae, and obstructed the police from taking him into custody. The appeal was heard on August 27, 2018, with the judgment delivered on August 30, 2018.

The court considered four primary legal issues in the appeal: (1) whether Greensmith was wrongly tried without legal representation, (2) whether he was unlawfully excluded from the courtroom during parts of the trial, (3) whether the police officers who testified were the correct ones involved in the incident, and (4) whether the findings of guilt were unsupported by evidence or law. The court examined each issue in detail, starting with the contention that Greensmith was not provided with legal representation.

The court found that Greensmith had been offered legal aid representation multiple times but that each lawyer had withdrawn due to his instructions and conduct. The court concluded that the trial judge was justified in proceeding with the trial as scheduled, as Greensmith had the assistance of an amicus curiae who acted in a manner consistent with defence counsel. The court also found that the exclusion of Greensmith from the courtroom, though irregular, did not prejudice the outcome of the trial. Regarding the police officers' testimonies, the court dismissed Greensmith's claim that the wrong officers testified, as he did not challenge their identities and provided no fresh evidence to support his claim. Finally, the court thoroughly reviewed the evidence and rejected Greensmith's assertion that the charges were the result of a conspiracy, finding his defence inherently implausible.

The court concluded that the trial was fair, and the appeal was dismissed. The judgment upheld the conviction and sentence, finding no miscarriage of justice.

Orders