Greer v The Queen - [2013] NZCA 26

IN THE COURT OF APPEAL OF NEW ZEALAND

CA726/2012
[2013] NZCA 26

BETWEEN ALAN IVO GREER
Appellant

AND THE QUEEN
Respondent

Hearing: 18 February 2013

Court: Arnold, Simon France and Dobson JJ

Counsel: Appellant in person
P D Marshall for respondent

Judgment: 21 February 2013 at 4 pm

JUDGMENT OF THE COURT

The appeal is dismissed for want of jurisdiction.

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REASONS OF THE COURT

(Given by Dobson J)

On 8 October 2012, Mr Greer’s second application to the High Court to be granted bail on the charges he presently faces was dismissed by Kós J.[1] On 7 November 2012, Mr Greer filed a notice of appeal in this Court in relation to the bail decision. The form on which he completed his notice of appeal was dated by him 5 November 2012.
[1] Greer v Police [2012] NZHC 2606.
Section 67(1) of the Bail Act 2000 (the Act) provides that a defendant wishing to appeal from a decision of the High Court relating to bail must file notice of the defendant’s intention to appeal with the Registrar of the Court of Appeal within 10 days after the date of the decision to be appealed against. In the present case, the Crown took the point that the notice of appeal had been filed out of time, and that accordingly the Court did not have jurisdiction to entertain the appeal.
Notwithstanding that the absence of jurisdiction is relatively settled, an oral hearing was convened at which we heard argument from Mr Greer, both as to why the Court had jurisdiction to hear his appeal, and as to the merits of his appeal from the second refusal by the High Court to grant him bail.

Jurisdiction

On two occasions, this Court (in one case comprised of a bench of permanent Judges of the Court) has held that s 67(1) of the Act means what it says, and that the Court does not have jurisdiction to extend time within which an appeal from a High Court bail decision can be filed.[2]
[2] R v Wong [2009] NZCA 93; R v Fatu [2009] NZCA 161.
Mr Greer argued that the Court should assume jurisdiction because the form that he completed, which is a form prescribed by the Court of Appeal (Criminal) Rules 2001, includes provision for stating, if the appeal or application is out of time, the reasons why the Court should nevertheless consider the appeal. That point was drawn to this Court’s attention in Fatu, and rejected on the basis that if jurisdiction does not otherwise exist, it cannot be created by inference from a form prescribed in rules made pursuant to the Act. We agree with that view. The scope of the Court’s jurisdiction is prescribed by the Act, and the time limit is clear. The provision cannot be the subject of an implied amendment because of the terms of a form appearing in Court rules. Although it is desirable that the form be amended so as not…

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.

Continue reading Greer v The Queen

Details

AGLC: Greer v The Queen [2013] NZCA 26
Case: [2013] NZCA 26
Decision Date: 21 February 2013

CaseChat Overview and Summary

Alan Ivo Greer appealed against the refusal of bail by the High Court, which was dismissed by the Court of Appeal. The appeal was heard by Arnold, Simon France, and Dobson JJ. Greer's notice of appeal was filed outside the stipulated time frame, raising the issue of the court's jurisdiction. The Court of Appeal held that the jurisdiction to hear the appeal was governed by Section 67(1) of the Bail Act 2000, which mandates that a notice of appeal must be filed within 10 days after the decision to be appealed. The Crown argued that Greer's notice of appeal was filed out of time, and the court lacked jurisdiction to entertain it. The Court of Appeal agreed with the Crown's position, stating that the time limit for filing an appeal was clear and could not be extended. Greer's argument that the court should assume jurisdiction because the form he completed included provision for stating reasons if the appeal was out of time was rejected. The Court of Appeal concluded that the scope of the court's jurisdiction was prescribed by the Act, and the time limit could not be the subject of an implied amendment due to the terms of a form appearing in court rules. The Court of Appeal also heard arguments on the merits of Greer's appeal, but they were not inclined to allow the appeal. The appeal was dismissed for want of jurisdiction.

Orders