Greer v The Queen

[2004] NZCA 40

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 50/03

THE QUEEN

v

ALAN IVO GREER

Hearing:24 March 2004

Coram:McGrath J
John Hansen J
Nicholson J

Appearances:  B Yeoman for appellant

E M Thomas for Crown

Judgment:30 March 2004 

JUDGMENT OF THE COURT DELIVERED BY JOHN HANSEN J

Introduction

[1]   Following trial by jury the appellant was convicted of burglary in the Palmerston North District Court on the 29^th of January 1991.  On the same day he was sentenced to six months’ imprisonment.

[2]   His original application for leave to appeal was dismissed ex parte on the 16^th May 1991 after legal aid was declined.  This is a rehearing of that appeal.

[3]   The appellant argues the matter as an application for leave to appeal, while the Crown treats it as a substantive appeal.  Given that the appeal was dismissed before the August 1991 amendments removing the requirement for leave, it could be argued leave is still required.  However, given the ex parte procedure was applied, we propose to treat this as the substantive appeal against conviction and sentence.

Background

[4]   In the early hours of Thursday the 25^th of October 1990, two police officers were patrolling in the Waikanae area.  They observed a vehicle driving out of the Cranbrook estate with no lights on it.  That was a new area with several houses under construction.  They observed what they took to be bulky items covered by a blanket in the rear of the vehicle.  They followed it and ultimately stopped the vehicle on Otaki Gorge Road.  The driver left the vehicle and was placed in the police car.  Another police vehicle then arrived.

[5]   Two other occupants, one being the appellant, locked the doors and refused to leave until a side window was broken by a police constable from the other vehicle.  In the rear of the vehicle were a number of whiteware items that were later identified as coming from a house that had been broken and entered in the Cranbrook estate. 

[6]   The appellant denied any involvement.  He gave evidence at trial and stated that on the night in question he had been drinking at a rural tavern.  When that closed, he went to a friend’s home and continued drinking.  When he went to return to his own property in Levin, he discovered his car would not start.  The occupants of the vehicle that was later stopped, who were acquaintances of the appellant, apparently observed him and picked him up.  Rather than returning him to Levin, they travelled in the opposite direction, to Waikanae.  The vehicle entered a side street and pulled up outside a house.  While the appellant went to relieve himself, one of the other occupants of the vehicle went towards the house and came back carrying something that looked like a torch.  Evidence was given by the appellant’s de facto partner and another woman to corroborate that his vehicle had broken down and had to be towed home the next day.

[7]   It is apparent that the jury rejected this explanation and found the charge proved to the requisite standard. 

The appellant’s submission

[8]   In relation to the conviction appeal only one matter is advanced.  The appellant submits that the Judge in his summing up failed to put to the jury the need for them to be satisfied that each element of the charge had been proved beyond reasonable doubt.  This is said to have occurred when the Judge was summarising the defence case.

[9]   Mr Yeoman, having said all that can be possibly said on behalf of this appeal, submits that this failure led to a miscarriage of justice.  He submits that the failure of the Judge, when summarising the defence case, to direct the jury that they must be satisfied beyond reasonable doubt of each element of the charge amounts to a substantial miscarriage of justice and that a retrial should be ordered.  Alternatively, he submits that due to the passage of time now elapsed the conviction should be quashed.

Crown submissions

[10]     The Crown submits there has been no failure by the learned District Court Judge.  He directed the jury appropriately on the burden and standard of proof generally.  He directed the jury on the requirement that the Crown must prove each element of the charge and he directed on those individual elements.

[11]     Mr Thomas points to the fact that the burglary was accepted by the appellant at trial and submits there was accordingly no need for the jury to look at the individual elements of the charge as the only question left for the jury to determine was whether or not the appellant was involved.  Accordingly, the Crown submits that it was unnecessary for the learned District Court Judge to repeat the earlier direction on the requirement for the Crown to prove each element of the charge when discussing the appellant’s evidence. 

Discussion

[12]     The passage complained of appears at page 7 of the summing up, where the learned District Court Judge said:-

Greer, as the defence puts its case, is in the company of burglars.  But being in the company of burglars does not make him a burglar if it cannot be shown that he assisted in some way in the burglary and it is that aspect that forms the real basis of your deliberations.  Greer having given evidence gives rise to this situation.  You may believe him and if you believe him then of course you acquit him.  Alternatively, without necessarily believing him, you may say “well, that might be true” and if you say that then it means a reasonable doubt has been raised in your minds and again you acquit him.  The third alternative is that you may reject his evidence as being untrue.  If you do, that does not necessarily mean a verdict of guilty because you may reject his evidence as untrue and still find that there is not proof beyond reasonable doubt of the charge against him as laid by the Crown.

[13]     As already noted, the complaint is that the Judge did not re-state the need for the Crown to prove each element of the offence beyond reasonable doubt. 

[14]     Earlier in his summing up the Judge, having given the appropriate general direction on the burden and standard of proof, continued:-

Our law says that before there can be a verdict of guilty the Crown must prove each ingredient of a charge beyond reasonable doubt.

[15]     On the same page of the summing up the Judge dealt with the individual elements of the charge as follows:-

The charge here is one of burglary.  Burglary in our law is the crime of breaking and entering a building with intent to commit a crime therein.  Here there is no question, so far as the defence is concerned, but that a burglary was committed.  The roller door was locked.  It was opened, people had entered and goods were taken and the taking of goods in those circumstances is theft, so at Lot 41 in Cranbrook Estate a burglary was committed.

[16]     While there may be occasions in lengthy or complex trials where it is appropriate for the Judge when dealing with the defence case to remind the jury of the need to be satisfied that all the elements of an offence have been proved beyond reasonable doubt, this is not one of them.  It was an extremely short trial where the defence conceded a burglary had been committed.  The only issue was whether or not the appellant was involved in that burglary.  The Judge had properly set out the need for the Crown to prove the individual elements of the charge and had set out those elements.

[17]     There was no need in the circumstances of this case to remind the jury of that when dealing with the appellant’s case in the summing up to the jury.

[18]     It follows that the appeal against conviction must fail and is accordingly dismissed.

Sentence

[19]     The notice of application for leave for rehearing purports to appeal against the sentence of six months’ imprisonment imposed.  The basis of this is not set out. 

[20]     However, in his original notice of appeal filed on the 18^th of March 1991 the appellant complains that on the 25^th of October 1990 he received a sentence of three months’ imprisonment relating to driving offences unconnected with the burglary.  He said the sentence and the conviction were overturned in the Palmerston North High Court in March of 1991.  He further states that he had, therefore, completed half of the six months’ sentence for the burglary.  He said when he was sentenced on the burglary the sentencing Judge was not in a position to anticipate nor take that into account.

[21]     The burglary was a discrete offence separate from the driving offences that the appellant refers to.  It is not a case where concurrent sentences would have been appropriate.

[22]     Furthermore, it must be pointed out that at the time of sentence the appellant had over 80 convictions, which included nine for theft and six for burglary or receiving.  The Judge noted that, given the background and the prevalence of burglary in the region, a substantial sentence of imprisonment could well have been justified.  However, he accepted counsel’s submission that there had been a slow-down in the appellant’s offending for burglary and imposed a sentence of six months rather than a lengthier sentence.  At the same time he remitted all outstanding fines.

[23]     He noted the differences between the appellant and a co-offender who had been sentenced to periodic detention.  He considered those significant differences meant that the appellant warranted a more severe sentence.  We agree and in the circumstances see no disparity.

[24]     When one reviews the sentencing notes, it is apparent that the Judge treated the appellant with considerable leniency.  It has not been shown that the sentence is either inappropriate or manifestly excessive.  Accordingly, the appeal against sentence must also be dismissed.

Solicitors:
B S Yeoman, Lower Hutt, for appellant
Crown Law Office, Wellington