Greer v The Queen

[2004] NZCA 19

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 49/03

THE QUEEN

v

ALAN IVO GREER

Hearing:8 March 2004

Coram:Glazebrook  J
John Hansen  J
Ronald Young  J

Appearances:  B S Yeoman for Appellant

E M Thomas for Crown

Judgment:15 March 2004 

JUDGMENT OF THE COURT

INTRODUCTION

[1]       In August 1992 Mr Greer was convicted, after a jury trial in the Palmerston North District Court, of one count of threatening to kill. He was sentenced to 9 months imprisonment. This is a rehearing of Mr Greer’s appeal against conviction and sentence which was dismissed on 13 November 1992 after an ex parte hearing.

[2]       By letter of 3 March 2004 Mr Yeoman, on instructions from Mr Greer, asked for an adjournment of this appeal on the basis that there may be important and relevant information which is not yet in the possession of the defence. He referred in particular to a missing file in a police operation called Operation “Huhu”. The request for adjournment was declined. The issues in this appeal are straightforward and Mr Greer has not identified any possible link between the missing file and this appeal.

Background

[3]       The circumstances giving rise to Mr Greer’s conviction can be stated briefly. Early in the morning of 11 March 1992 a police constable was called to a traffic accident scene in Levin. The officer found Mr Greer sitting in the driver’s seat of one of the vehicles which was parked up on the footpath against a tree. The officer spoke to Mr Greer and arrested him. A struggle ensued and Mr Greer was handcuffed and placed in the back seat of the Police car. While travelling back to the station Mr Greer allegedly made continuous threats to kill the arresting officer. On arrival at the Police station the officer noted down the threats that had been made which included statements that Mr Greer would find out where he lived, kill the officer and his family and rape his wife.

[4]       Mr Greer gave evidence at trial that he had been asleep in the back of his car when he was awoken by the accident. He said he was trying to help the driver whose car had a jammed gear stick when the constable arrived and began questioning him. Mr Greer, who at the time was disqualified from driving, admitted being annoyed with the constable and making threats, but denied making any threats to kill.

Appellant’s Submissions

[5]       Mr Greer in his Notice of Appeal set down four grounds of appeal. The first ground of appeal was that the evidence of the Police at his trial amounted to lies. Mr Greer’s second ground of appeal was that the Police showed the vehicle on the television programme “Crimewatch” and described it as a stolen vehicle. No further detail has been provided and it is even unclear if this occurred pre or post trial. Mr Greer’s third ground of appeal appears to be one of trial counsel incompetence. The final ground of appeal is that the trial judge failed properly to sum up the case to the jury and failed to use his discretionary powers to dismiss the indictment under s347 of the Crimes Act 1961.

[6]       In Mr Yeoman’s submission, the following failures in the summing up taken cumulatively, led to a miscarriage of justice:

(a)the Judge failed to direct the jury on the three possible interpretations of the defence evidence so that there was a failure to direct that, even if the jury rejected the defence evidence, it was necessary for the jury to go on and examine each element of the charge and to be satisfied beyond reasonable doubt of every such element.

(b)The Judge failed to give adequate directions to the jury on how to assess the reliability and credibility of each witness.

(c)The Judge failed adequately to direct the jury as to the drawing of inferences, in particular that an accused is to be given the benefit of the doubt where there are two possible inferences to be drawn of equal weight.

Crown Submissions

[7]       In the Crown’s submission, Mr Greer’s allegation that the case against him had been fabricated was the basis of his defence at trial and the matter was fully and properly put before the jury. The first ground of appeal should therefore, in the Crown’s submission, fail.

[8]       With regard to the summing up, while the Crown accepts that the Judge did not give what has now come to be known as the “tripartite direction”, it submits, referring to the decision of this Court in R v Tuiloma CA 222/99, 8 December 1999, that such a direction does not always need to be given. In the Crown’s submission, an examination of the summing up as a whole is required. In this case the trial Judge properly and correctly discussed the burden of proof and the absence of any onus on the accused and stressed that this remains unchanged if the accused gives evidence. The Crown submits, therefore, that the jury can have been in no doubt as to its task.

[9]       The Crown also submits that the Judge gave adequate directions on the assessment of reliability and credibility of witnesses. The direction was in plain and simple terms. Further, the case was of a simple nature and of short duration and the issues going to credibility and reliability were clearly identified during the trial.

[10]     Turning to the direction on inferences, the Crown accepts that the Judge did not specifically direct the jury in terms of which inference to draw in the situation where there may be two inferences of equal weight. However, in the Crown’s submission, this was a case where the defence was clear - ie that the threats were not made. It involved a simple issue and straightforward evidence and essentially turned on questions of credibility rather than the drawing of inferences.

Discussion

[11]     The first ground of appeal relies on a claim of conspiracy on the part of the police. It was also the basis of the defence at trial. In cross-examination it was put to the arresting officer that the record of the threat in his notebook was a fabrication designed to establish a serious criminal charge against Mr Greer, with whom the officer had had previous dealings. Mr Greer gave evidence that the constable had known him for a long time, there was animosity between them and he was “just willing to do anything to me to get me off the streets”. These differing versions of the events raised issues of fact and credibility which were for the jury to determine. Its verdict was the product of that determination. The first ground of appeal must fail.

[12]     We move to the second ground of appeal. Even if the programme had been screened before trial and even if a member of the jury had seen it and made the connection, this cannot have led to a miscarriage of justice. The Judge had instructed the jury to come to their verdict solely on the evidence before the Court and to dismiss anything they had heard about the case or the person involved in it from their minds. They had also been instructed to put aside any feelings of prejudice.

[13]     With regard  to the third ground of appeal, no waiver of privilege has been filed and so this ground cannot be proceeded with.

[14]     With regard to the final ground of appeal, we note first that the trial Judge’s summing up was brief. On the other hand, the case had been a short one and the issues were straightforward. The Judge began by explaining the respective functions of the Judge and the jury, stressing that decisions on questions of fact were for the jury alone. Next the Judge explained that the jury must consider the whole of the evidence and that it was for it to decide what witness, or part of the witnesses’ evidence, to accept or reject. In particular he emphasised that it was for the jury to assess the credibility of each witness. The Judge continued:

You decide what facts you find proved and from those you decide what inferences you can properly draw. And in drawing inferences from proven facts you apply your common-sense, your knowledge of human nature and the way people act and react.

[15]     Next the Judge instructed the jury as to the onus of proof which he set out as resting on the Crown from beginning to end. He said:

The third matter, and it is of vital importance, is that the onus of proof of each charge (and against each accused) is on the Crown which brings the charge. That onus rests on the Crown from beginning to end. There is no onus on the accused at any stage to prove his innocence. He does not need to give evidence. (In this case he has chosen to do so, but he still carries no onus.) The law is that the Crown must prove each charge and each element of each charge beyond reasonable doubt before you may bring in a verdict of guilty.

[16]     The summing up concluded with a discussion of the elements of the charge of threatening to kill and, although not entirely clear from the written record, it appears there was also a discussion of the Crown and defence case.

[17]     The first complaint made is that the trial judge should have directed the jury that, if it accepted Mr Greer’s evidence or if there was a reasonable possibility Mr Greer’s evidence was true, then it should acquit, but, if it rejected Mr Greer’s evidence, it was still necessary to examine each element of the charge to be satisfied that each had been proved by the Crown to the requisite standard.

[18]     It would certainly have been best practice for such a direction to have been given, particularly as the case was essentially one of competing versions of events given by the Police and Mr Greer. In this case, however, the jury can have been under no misapprehension as to the onus of proof and thus as to their task. The Judge stressed that there was no onus on Mr Greer even though he had chosen to give evidence and that the Crown had to prove each element of the charge beyond reasonable doubt.  In the context of a simple case of this nature, the Jury must have understood that they had to be sure the Police Officer’s version of events was true and that the Crown had proved to the requisite standard all of the elements of the charge. 

[19]     The second complaint relates to the adequacy of directions to the jury on how to assess the reliability and credibility of witnesses. The Judge instructed the Jury to “assess the witnesses’ demeanour and to judge their reliability, their credibility”. The summing up in this regard was tailored to the particular case, which was short and simple.

[20]     The third complaint relating to the summing up is as to the adequacy of directions on the drawing of inferences. Again this was not a case in which a more elaborate direction was required. As the Crown submits, the case turned on credibility rather than the drawing of inferences. The direction given was clear and simple and was appropriate for the case.

[21]     Finally, the District Court Judge did not err in failing to grant a s347 discharge. There was evidence upon which the Jury was entitled to convict.

[22]     We also note that no submissions were made on sentence. We consider in any event that the sentence was within the range available to the Judge.

Result

[23]     Mr Greer’s appeal is dismissed.

Solicitors:

B S Yeoman, Lower Hutt for Appellant
Crown Law Office, Wellington