Greer v The Queen

[2004] NZCA 75

IN THE COURT OF APPEAL OF NEW ZEALAND

CA162/03

THE QUEEN

v

ALAN IVO GREER

Hearing:26 April 2004

Coram:Chambers J
Panckhurst J
Laurenson J

Appearances:  B S Yeoman for Appellant

K Raftery for Crown

Judgment:24 May 2004 

JUDGMENT OF THE COURT DELIVERED BY CHAMBERS J

An illegal search

[1]       At about 3.20am on 15 June 1996, John Merrick, then of 123 Linton Street, Palmerston North, awoke to the sound of his garage door opening.  He called the police.  They quickly rushed to the scene, with a police dog.  The police dog followed what appeared to be an unbroken scent from the garage at the premises concerned to a property a short distance away.  There the police found Alan Greer lying face down under a children’s play area in the rear fenced yard of a domestic dwelling, which was not his own. 

[2]       Constables Jones and Romney approached Mr Greer.  Mr Greer stood up.  Constable Jones said to Mr Greer that he required him to come back to the police station with him.  He told Mr Greer he was going to search him.  He then immediately fully cautioned him, advising him of his right to silence and his rights under s23 of the New Zealand Bill of Rights Act 1990.  Constable Jones asked Mr Greer to stand and place his hands up on a rail with his legs apart.  Constable Jones held him with one hand on his back near his neck and with his other hand frisked him.  His search covered the entire outer area of Mr Greer’s clothing and his pockets.  During the course of this search, a crescent spanner, a wheel nut, and a combination bottle opener were found.

[3]       After the search had been completed, the accused was handcuffed.  Judge Becroft, the trial judge, accepted that that this was because Mr Greer was in an agitated state and the constables feared for their personal safety if Mr Greer were not handcuffed.  The constables did not at this stage formally tell Mr Greer that he was under arrest.  That was because they were under the mistaken impression that, were they to arrest him, they would not be able to question him further.  They wished to question him further as soon as they had him back at the police station. 

[4]       The constables and Mr Greer then travelled to the police station.  At that point, Mr Greer was given his rights again.  He was invited to make a statement or explanation, which he refused declined to do. He was then formally arrested. He was then searched again. This search was conducted pursuant to s57A of the Police Act 1958. The legality of that search has never been in question. Further items were at that point discovered on Mr Greer’s person. That further items were discovered confirms that the initial search was superficial or inept.

[5]       Mr Greer was then charged.  He was charged with having in his possession by night an instrument capable of being used for burglary, namely a pair of scissor blades, in circumstances that prima facie showed an intention to use that instrument for burglary.  He was also charged with attempting to break and enter a building, with intent to commit a crime therein.  That was a reference to the attempted break-in of 123 Linton Street.  Mr Greer faced a third charge, with respect to a break-in at 82 Linton Street.  That break-in had apparently occurred earlier in the evening. 

[6]       Mr Greer elected trial by jury on the three charges.  On the first day of trial, Mr Greer challenged the admissibility of the items discovered in the backyard search.  Through his counsel, Mr Greer submitted that that search was unlawful and unreasonable, with the consequence that the fruits of that search should be declared inadmissible.  Judge Becroft heard evidence on a voir dire.  His Honour then ruled that the evidence was admissible. 

[7]       The jury found Mr Greer guilty on all three charges.  Judge Becroft subsequently sentenced Mr Greer to one year’s imprisonment on the burglary charge.  He also sentenced Mr Greer to six months’ imprisonment on the attempted burglary and 10 months’ imprisonment on the charge of being in possession of instruments for burglary.  The sentences were concurrent.

[8]       In 1997, Mr Greer lodged an appeal against his conviction and sentence.  He applied for legal aid.  This court refused legal aid.  The appeal was subsequently dismissed on the papers.

[9]       Following the passage of the Crimes (Criminal Appeals) Amendment Act 2001, Mr Greer applied for leave to appeal against his conviction and sentence.  Leave was granted.  We have now heard the appeal de novo. 

Issues on the appeal

[10]     On the appeal against conviction, there is only one issue: was the evidence of the backyard search admissible?

[11]     On the sentence appeal, there is only one issue: was the total sentence manifestly excessive?

[12]     Before dealing with those issues, we refer to two other matters which Mr Yeoman, who appeared for Mr Greer on the appeal raised.  First, he informed us that Mr Greer remained concerned that “full, fair and proper disclosure” had not been made by the police.  Mr Greer was particularly concerned to obtain a copy of the deposition hearing transcript.  He wanted that, so Mr Yeoman told us, so that he (Mr Greer) could prove “the inconsistencies of the evidence given by prosecution witnesses between depositions and trial”.  We declined to adjourn the appeal so that that transcript could be obtained for the following reasons.  First, it is uncertain whether the transcript is still available in any event.  Secondly, the transcript is irrelevant to matters in issue on this appeal.  Thirdly, even if there were inconsistencies between the deposition evidence and the evidence at trial – and there is nothing before us to suggest that there were – those inconsistencies would have been plain to Mr Greer’s then counsel and, if relevant, could have been exposed or highlighted during the course of cross-examination at the trial.  Obviously, that counsel would at that time have had the notes of evidence from the preliminary hearing and would have made use of them where to do so was in Mr Greer’s interest.

[13]     Secondly, Mr Yeoman also informed us that Mr Greer had directed him to advise us “that there were two pages of the evidence of Constable MacDonald at depositions that were materially changed”.  Mr Greer alleged that there was “collusion between his counsel at depositions [not Mr Yeoman], the witness Constable MacDonald, Court staff (typist), Justices of the Peace, and the Prosecutor to commit perjury and pervert the course of justice in this particular case by allowing a second version of Constable MacDonald’s evidence to be substituted at a later time/date”.  Mr Greer wanted these two allegedly altered pages to be checked by a forensic handwriting expert.

[14]     These extreme allegations are completely unsupported by any affidavit evidence.  In any event, what Constable MacDonald said at the preliminary hearing was not before the jury.  At no point did Mr Greer’s then counsel cross-examine Constable MacDonald on the basis that what he was now saying was inconsistent with his evidence at the deposition hearing.  It would be ridiculous to suppose that the absence of any such cross-examination was the product of “collusion” between Mr Greer’s then counsel, the prosecutor, Constable MacDonald, judicial officers, and court staff.  From our reading of the trial transcript, we conclude Mr Greer’s then counsel looked after Mr Greer’s interests assiduously.

[15]     Mr Greer has brought a number of appeals since the passage of the Crimes (Criminal Appeals) Amendment Act 2001 in some of which he has made similar allegations of police and other State misconduct.  In neither of the other cases so far have these allegations of improper conduct been sustained in this court: see R v Greer CA38/03 8 March 2004 and R v Greer CA49/03 15 March 2004.

[16]     We turn now to the two live issues. 

Admissibility of backyard search evidence

[17]     At Mr Greer’s trial, the prosecutor conceded that the backyard search of Mr Greer was unlawful.  Whether that concession was properly made is not a matter we address, as Mr Raftery, counsel for the Crown on this appeal, said he could not in fairness resile from a concession clearly made by the then prosecutor.  We do not consider therefore whether the search might have been justified at that time on the basis that Mr Greer was in fact arrested at that time, even if not formally so advised. 

[18]     Judge Becroft did not need to form a view on whether the search was unreasonable in terms of s21 of the Bill of Rights.  That was because he was satisfied that the items found in the backyard search would have been discovered in any event during the course of the lawful search conducted as soon as Mr Greer was arrested at the police station.  Mr Greer was after all under de facto arrest from the moment he was discovered by the police tracker dog.  He was immediately cautioned and, after the frisk, handcuffed.  There was no way in which the police officers would have allowed him out of their sight.  Had he refused to accompany them to the police station, he would have been immediately arrested in a formal sense.  Mr Yeoman was not able to suggest any plausible way in which the three items discovered in the backyard search would not inevitably have been discovered in any event at the lawful police station search. 

[19]     The “inevitable discovery” doctrine is now well established in this country.  In R v Butcher [1992] 2 NZLR 257, this court followed the approach of the Supreme Court of Canada in Black v R [1989] SCR 138, where that court held that real evidence obtained as a result of a confession obtained in breach of the appellant’s rights was nonetheless admissible because it would undoubtedly have been discovered by police in any event. That doctrine is directly relevant to the discovery of the crescent spanner, the wheel nut, and the combination bottle opener. The “inevitable discovery” doctrine was expressly endorsed in this court in R v Shaheed [2002] 2 NZLR 377 at [143].

[20]     On this issue, we cannot fault Judge Becroft’s reasoning and his ruling that the outcome of the backyard search was admissible. 

[21]     It accordingly follows that the challenge to the convictions must fail. 

Sentence

[22]     Mr Yeoman submitted that the sentence “was manifestly excessive given all the relevant circumstances”.  He submitted that it should be reduced to a maximum of six months’ imprisonment under the totality principle.  

[23]     This branch of the appeal has no merit.  Mr Greer at the time of the sentencing had a considerable list of previous convictions, including four for burglary, five for unlawful taking or interference with a vehicle, ten for assault, one for being found without lawful excuse on enclosed land, three for resisting or obstructing a police office, one for intentional damage, three for possession of a knife in a public place, one for attempting to pervert the course of justice, one for receiving, and one for failing to report for periodic detention.  His most recent burglary offence had resulted in six months’ imprisonment.  Judge Becroft considered that, even if Mr Greer was not a professional burglar, he was at least an habitual offender.  He noted that, although Mr Greer’s offending had dropped since the early 1990s, there had still been significant offending since. 

[24]     Judge Becroft considered that, in light of Mr Greer’s previous convictions, particularly the most recent one for burglary, a deterrent sentence was necessary.  The judge also found a need to protect the public through the sentence. 

[25]     We agree with the judge’s reasoning.  Although at the time of Mr Greer’s sentencing Senior v Police (2000) 18 CRNZ 340 had not been decided, that case is now available and provides a useful analysis and synopsis of a large number of sentencing decisions from the 1990s.  The case provides a useful guide to sentencing levels for offences of burglary, including such levels as they existed as at 1997.  Although Mr Greer does not fit clearly into any of the three categories identified in Senior, his previous convictions would mark him as a category 2 man (recidivist burglar).  In those cases, imprisonment is virtually inevitable.  The sentences have frequently been considerably in excess of that imposed by Judge Becroft here. 

[26]     Category 1 in Senior is essentially the first-time burglar.  Even in that category, prison sentences are not unknown.  For instance, the court in Senior referred to the judgment of Tipping J in R v Tawa HC DUN AP20/95 17 March 1995.  In that case, the High Court upheld the sentence of 18 months’ imprisonment imposed for two burglaries and 21 thefts from motor vehicles.  The offender pleaded guilty and, in dismissing the appeal, Tipping J noted that the sentencing judge’s starting point must have been in the region of two years’ imprisonment. 

[27]     In the present case, there was no guilty plea, there were a number of previous convictions, and for the last burglary conviction a sentence of six months’ imprisonment had been imposed and had clearly failed to have the desired deterrent effect.  Against this background, the sentence of 12 months’ imprisonment could hardly be said to be manifestly excessive.

Result

[28]     We dismiss the appeal against conviction and sentence.

Solicitors:

Crown Solicitor, Auckland