PETER GREEN-HIROTI AND NEW ZEALAND POLICE
[2024] NZHC 3436
•18 November 2024
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
CRI-2024-483-8
[2024] NZHC 3436
BETWEEN PETER GREEN-HIROTI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 14 November 2024 Appearances:
Appellant in Person, by telephone
K D Turner for Respondent, by VMR
Judgment:
18 November 2024
JUDGMENT OF McQUEEN J
[1] Mr Green-Hiroti was charged with assaulting a police officer.1 Mr Green- Hiroti was sentenced in the Taihape District Court on 14 June 2024 to three weeks’ imprisonment with no release conditions.2
[2] The sentencing notes of District Court Judge Krebs record that Mr Green- Hiroti pleaded guilty “on the day in question” and accepted an amended summary of facts. The amended summary of facts states that on 26 March 2024, the police had arrested Mr Green-Hiroti. When Mr Green-Hiroti was handcuffed, he swung his head and headbutted a police constable in the face causing a minor injury to their eye. The Judge had a pre-sentence report dated 24 May 2024, and noted no electronically monitored options were available for sentence. The Judge said that assaults on police officers need to be discouraged. The Judge noted that Mr Green-Hiroti has a
1 Crimes Act 1961, s 192(2); maximum penalty three years’ imprisonment.
2 Police v Green-Hiroti [2024] NZDC 13786.
GREEN-HIROTI v NEW ZEALAND POLICE [2024] NZHC 3436 [18 November 2024]
significant history of violence, including recent convictions for which he has received sentences of imprisonment.
[3] Mr Green-Hiroti filed a notice of appeal against conviction and sentence. There has been a lack of progress with Mr Green-Hiroti’s appeal. By memorandum dated 16 October 2024, counsel for the Police sought the dismissal of the appeal under s 338 of the Criminal Procedure Act 2011, following 10 working days’ notice being given to Mr Green-Hiroti pursuant to s 338(2).
[4]For the reasons that follow, I dismiss Mr Green-Hiroti’s appeal.
Background to appeal
[5] On 10 July 2024 Mr Green-Hiroti filed a notice of appeal against conviction and sentence on the grounds that:
My case was not defended. A lawyer did not represent me in the Court. Witness/tenants [of Miro Street] were not heard to evidence.
12 August 2024 judicial teleconference and Minute
[6] A judicial teleconference was held on 12 August 2024. Mr Green-Hiroti was on bail at the Grace Foundation at that time. He advised that he intended to apply for legal aid. He said that he had not had a chance to do so. Mr William, the manager at the Grace Foundation, was also on the teleconference and offered to assist Mr Green- Hiroti in this regard.
[7] In view of Mr Green-Hiroti seeking legal advice, the teleconference was adjourned to 9 September 2024.
[8] The teleconference was further adjourned following Mr Green-Hiroti’s indication to the Registrar that he was yet to apply for legal aid but wished to continue the appeal.
23 September 2024 judicial teleconference and Minute
[9] In a judicial teleconference held on 23 September 2024, Mr Green-Hiroti claimed he had been unable to apply for legal aid due to other commitments. He said he still wished to continue with the appeal. Grice J made the following directions:
(a)Mr Green-Hiroti is to file and serve a waiver of privilege (relating to J Jordan, counsel who represented him in the District Court) on the Police on or before 30 September 2024.
(b)Mr Green-Hiroti is to file and serve detailed grounds of appeal, an application for leave to adduce further evidence, if any, and proposed further evidence on or before 9 October 2024.
(c)The Police are to file any opposition to the grounds of appeal/application for further evidence, affidavit from previous counsel, and any application for leave to adduce further evidence in reply on or before 16 October 2024.
(d)Mr Green-Hiroti is to file and serve submissions and authorities by 23 October 2024.
(e)The Police are to file and serve submissions and authorities by 30 October 2024; and
(f)The matter is set down for hearing on 8 November 2024.
[10] The Minute issued following the 23 September 2024 teleconference specifically recorded that if Mr Green-Hiroti did not progress the matter, consideration may be given to dismissing the appeal under s 338 of the Criminal Procedure Act.
[11] The Registrar emailed the Minute to Ms Gould who confirmed that Mr Green- Hiroti was mailed a copy of it. Ms Gould confirmed that she does not act for Mr Green- Hiroti on the appeal.
[12] Mr Green-Hiroti failed to comply with any aspect of the directions given in the Minute.
Memorandum from Police dated 16 October 2024 seeking dismissal of appeal
[13] On 16 October 2024, counsel for Police, Ms Turner, filed a memorandum seeking dismissal of this appeal under s 338 of Criminal Procedure Act on the basis of Mr Green-Hiroti’s non-compliance with procedural orders.
29 October 2024 Minute
[14] On 29 October 2024 Grice J issued a further Minute. This Minute recorded the Judge’s earlier warning to Mr Green-Hiroti that if he did not progress the matter, the Judge would consider dismissing the appeal under s 338 of the Criminal Procedure Act. The Minute noted the memorandum from Police dated 16 October 2024 seeking dismissal of the appeal.
[15]The Minute records that s 338 of the Criminal Procedure Act provides:
Power of appeal court to dismiss appeal for non-compliance with procedural orders
(1)Despite anything in subparts 2 to 10, an appeal court may dismiss an appeal if the appellant fails to comply with a timetable or other procedural orders fixed for the appeal.
(2)Before dismissing an appeal under subsection (1), the appeal court must give the appellant 10 working days’ notice of its intention to dismiss the appeal.
(3)The appeal court must not dismiss an appeal under subsection (1) if the appellant, after having been given notice under subsection (2), rectifies the non-compliance within the notice period given by the court.
…
[16]The Minute made the following directions:
(a)Mr Green-Hiroti is to provide a current address for service (including an email address) for the appeal.
(b)A copy of the Minute is to be emailed to Mr Green-Hiroti (care of Ms Gould).
(c)Mr Green-Hiroti has until 13 November 2024 (being at least the 10 working days’ notice required under s 338(2) of the Criminal Procedure Act) to rectify his non-compliance. He must file and serve a signed waiver of privilege (of his previous legal counsel), detailed grounds of appeal, an application to adduce further evidence and proposed further evidence on or before 13 November 2024.
(d)The appeal may then be dismissed if Mr Green-Hiroti does not comply with the new timetable directions made.
8 November 2024 Minute
[17] The matter was called on 8 November 2024 before Churchman J. The Minute of that same date records that Mr Green-Hiroti had not complied with any of the timetable directions given. He apologised for that. He said that he was in Tauranga and had an appointment that day to visit a lawyer who he intended to instruct to pursue the appeal. He sought the indulgence of the Court for a further extension of time to comply with the directions given by Grice J.
[18]Churchman J concluded:
[9] [Mr Green-Hiroti] has, to date, wasted the time of the Court and of counsel for the respondent by failing to make any apparent effort to comply with the directions of the Court in respect of the steps it is necessary for him to take to progress his appeal. He will have one last chance to do that. This matter will be called again at 10am on 14 November 2024. The parties will be able to participate by VMR should they wish to do so. Unless [Mr Green- Hiroti] has complied with all of the directions made by Grice J and referred to above, this appeal will be struck out under s 338 of the Criminal Procedure Act 2011.
[10] If [Mr Green-Hiroti] has filed and served the waiver of privilege in relation to [Ms] Jordan, filed and served detailed grounds of appeal as well as his submissions and the authorities relied on and complied with all the other directions made by Grice J, the appeal will be adjourned to a date and time fixed by the Registrar for the hearing of the appeal.
Two documents filed by Mr Green-Hiroti on 13 November 2024
[19] Mr Green-Hiroti filed two handwritten documents on 13 November 2024. In the first document, Mr Green-Hiroti described the relevant events in the District Court. He states:
To [whom] this may concern I Peter Matiu Green-Hiroti is writing a [statement] or [affidavit] to appeal my case of two [assault] charges on police. My lawyer at the time was Joanna Jordan we spoke together about case wrote down what happen I signed it and she told me to wait [till] next court date [and] we will sort it out.
On the day of the trial I approached Joanna we sat in the room [and] she said Peter [I have] talked to the Police and they said if I agree plead [guilty] to one of the [charges] they will drop the other one charge. I replied no Joanna I [want to] plead not [guilty]. She said well Peter if [you are] going to [plead] not [guilty] [you will] have to get another lawyer. So I said [okay] then my name got called up and she had already pushed it [through] and I was found [guilty] due to my lawyers actions.
Imprisoned for the action of my lawyer.
[Your Honour] is there is anything [you’re] concerned with please feel free to ask me.
[Your Honour] I Peter Matiu Green-Hiroti am very sorry and deeply remorseful for [everyone’s] time that was consumed in this case. Thank you
[20] In the second document, Mr Green-Hiroti describes the events underpinning the charges he faced. He states:
On _/_/_ I Peter Matiu Green-Hiroti was at my home 113 Miro Street Ohakune when [a] domestic happened next door. Address 111 Miro Street Ohakune.
When the police had come to the address next door I had seen female police walked into the address 111 Miro Street Ohakune while the male police who I [believe] was [her] partner at the time. he walked in towards my address (at that time my thought was he was coming [over] to see if we had known anything about [incident] next door.) I went to meet him out by the driveway before I could say or ask him why he was here he pulled the [taser] on me told me to get down on the ground. I surrendered screamed out to my dad, he quickly come over and escorted the police off the property I was shaking with fear.
Shortly after another police officer turns up tells me [I am] under arrest so they [detained] me in hand cuffs now [I am] charged with 2x [assault] on Police officer.
Hearing on 14 November 2024
[21]On 14 November 2024, the matter was called before me.
[22] I asked Mr Green-Hiroti why he had not complied with the timetable orders for the appeal. Initially he said that he did not know what he had to do, but I do not accept that, given his presence at the teleconferences held in relation to the appeal and the Minutes issued. Mr Green-Hiroti then said that he does not understand what is required, including for the waiver of privilege. He also told me that he was unable to obtain legal aid for an appeal, and that when he spoke to a lawyer in Tauranga last week, they told him that there was not enough time in which to take all the steps required by the Court, so the lawyer was unable to help. Mr Green-Hiroti said that he was facing other charges and had been getting into trouble for being in the wrong place at the wrong time and these other matters meant he could not keep up with this matter.
[23] Mr Green-Hiroti confirmed that his goal is to vacate the guilty plea. He says that he told the lawyer that he did not want to enter a guilty plea. He says that when she said he would need to find another lawyer, he said okay to that, but then he was being called before the Judge and it was too late.
[24] Ms Turner emphasises the numerous opportunities given to Mr Green-Hiroti to comply with the timetable orders. In particular, it is now four months since the appeal was filed and there is still no waiver of privilege.
[25] Ms Turner acknowledges that given what has been said in the recently filed statements from Mr Green-Hiroti the Court may consider enough life has been breathed into the appeal for it to continue, but she emphasises that a waiver of privilege has still not been provided and is crucial to the question of whether leave to appeal against conviction should be granted. Ms Turner also observes that Mr Green-Hiroti has said on several occasions that he was seeking legal advice. She notes that despite two appointments with two different lawyers who could have explained what is required and that the Registrar has recently provided a list of duty lawyers in the Whanganui and Tauranga areas, Mr Green-Hiroti has not used these opportunities to obtain advice and as a result, no meaningful progress has been made on the appeal.
Discussion
[26] I accept Ms Turner’s submission that the s 338 requirements have been met as Mr Green-Hiroti has not complied with the timetable orders made and he has been given more than 10 working days’ notice and therefore the Court may dismiss his appeal.
[27] The Minute dated 29 October 2024 records that Mr Green-Hiroti had 10 working days’ notice (as required under s 338) to rectify his non-compliance with the timetable orders. That deadline expired on 13 November 2024. The position was explained once again to Mr Green-Hiroti when he appeared on 8 November 2024. The Minute of the same date could not be framed more plainly.
[28] The material filed by Mr Green-Hiroti on 13 November 2024 does not fulfil what is required under the timetable orders. While statements have been provided, they are not sworn or affirmed such that they can be accepted as evidence. No signed waiver of privilege (of his previous legal counsel), detailed grounds of appeal, application to adduce further evidence and proposed further evidence have been filed. As has already been highlighted, critical is the lack of a waiver of privilege from the lawyer acting for Mr Green-Hiroti in the District Court.
[29] It is relevant also to look at the earlier background of this matter. The offending occurred on 26 March 2024 and two charges were laid against Mr Green-Hiroti. It appears from the District Court file that Mr Green-Hiroti entered a guilty plea to the charge of assaulting a police officer on 10 May 2024. It seems that this followed the withdrawal of another charge by Police and the amending of the summary of facts to reflect this. Mr Green-Hiroti met with the pre-sentence report writer and a report was prepared dated 24 May 2024. Mr Green-Hiroti then appeared for sentencing on 14 June 2024. The pre-sentence report records that Mr Green-Hiroti said that he considered he had done nothing wrong in regard to his offending. Noteworthy also is the discussion in the report of Mr Green-Hiroti’s propensity for violent behaviour including previous convictions for violence offending.
[30] Apparent from the timeframe I have described is that Mr Green-Hiroti had the opportunity from 10 May 2024 to address what he says was the entry of a guilty plea
against his wishes. There is no suggestion from Mr Green-Hiroti that he took any steps from that time. Rather, he has waited until after he was sentenced to raise the issue through filing an appeal.
[31] Mr Green-Hiroti has also failed to pursue his appeal since filing a notice of appeal. This is despite five engagements with this Court prior to the hearing before me, as well as interactions with the Registrar. I am satisfied that it has always been made plain to Mr Green-Hiroti what steps he was required to take to pursue the appeal. Mr Green-Hiroti has failed to apply for legal aid or otherwise instruct a lawyer, despite numerous representations to the Court that he was going to do so. Nor has he made any attempt to take the steps required to advance the appeal (at least until the provision of his statements on 13 November 2024)—most importantly failing to contact the lawyer acting for him in the District Court.
[32] The Court of Appeal has held, however, that the Court has a discretion whether or not to dismiss an appeal, even if the statutory pre-conditions are met.3 The Court of Appeal stated:
… In exercising that discretion, the court must be guided by the interests of justice. An important consideration is the right to appeal according to law affirmed by s 25(h) of the New Zealand Bill of Rights Act 1990. But in enacting s 338, Parliament has recognised that the right to appeal is not an untrammelled right and that the court may, when appropriate, dismiss an appeal for non-compliance with a timetable or procedural order. This no doubt recognises that there are countervailing considerations relevant to the interests of justice including the Crown’s legitimate expectation that it should be provided with adequate particulars of the grounds of appeal to enable a proper response and the public interest in finality of court proceedings. The orderly and efficient administration of the court is also a relevant consideration although the court would not normally dismiss an appeal under s 338 unless there had been serious, repeated and continuing non-compliance with the court’s directions.
[33] The Court of Appeal has further commented in Bell v Police that although an appeal can simply be dismissed once the threshold requirements are met, some provisional or high-level assessment of the merits of the proposed appeal can usually be expected, although, as the Court noted, in some cases the procedural non- compliance will make even a preliminary assessment of the merits difficult.4
3 Rakuraku v R [2016] NZCA 351 at [26].
4 Bell v Police [2023] NZCA 291 at [42].
[34] I start by noting that s 232 of the Criminal Procedure Act allows for an appeal against conviction following a guilty plea. In effect, an appellant must show that a miscarriage of justice will result if the conviction is not overturned.5
[35] However, as Ms Turner submitted, following entry of a guilty plea, an appeal against conviction is only allowed in exceptional circumstances. In R v Ritchie,
Nation J summarises the relevant law on this point as follows:6
[17] The relevant principles for an appeal against conviction following a guilty plea are well established. As stated by the Court of Appeal in R v Le Page, an appeal against conviction will only be allowed in exceptional circumstances following the entry of a guilty plea.7 What constitutes an “exceptional circumstance” was set out by the Court of Appeal in Whichman v R as follows:8
[35] Three broad categories of relevant exceptional circumstance were identified by this Court in R v Le Page to which a fourth was added in Merrilees v R:9
(a) where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge;
(b) where on the admitted facts the appellant could not in law have been convicted of the offence charged;
(c) where the plea was induced by a ruling which embodied a wrong decision on a question of law; and
(d) where trial counsel erred in advising as to the non- availability of certain defences or potential outcomes, or where counsel wrongly induces a decision to plead guilty under a mistaken belief or assumption that no tenable defence existed or could be advanced.
[36] The overriding consideration whether the plea has produced a miscarriage of justice. This protean juristic concept is given modest definition in s 232(4) of the Criminal Justice Act. It is not to be thrust into an over-defined straightjacket. The categories of exceptional circumstance justifying a vacation of plea after entry of a guilty plea are neither closed nor complete. The Supreme Court recognised that reality in Wilson v R.10
5 R v Le Page [2005] 2 NZLR 845 (CA) at [16].
6 Ritchie v Police [2022] NZHC 494.
7 R v Le Page, above n 5.
8 Whichman v R [2018] NZCA 519.
9 R v Le Page, above n 5; and Merrilees v R [2009] NZCA 59 at [35].
10 Wilson v R [2015] NZSC 189, [2016] 1 NZLR 705 at [104].
[36] Ms Turner was not in a position at the hearing to provide oral submissions on the merits of the appeal although I record that she offered to file a further memorandum if that would assist the Court. I do not consider that it would be appropriate to defer this matter further to permit additional submissions to be filed in the Court. The matter has already taken sufficient resource of Police and their counsel, and the Court, such that this is not justified.
[37] The relevant exceptional circumstance (from those listed in Ritchie) appears to be that Mr Green-Hiroti did not intend to plead guilty to the charge. Mr Green-Hiroti’s position is that his lawyer proceeded to enter a guilty plea despite Mr Green-Hiroti saying he did not want to and was prepared to wait and see another lawyer. There is very limited information available against which to assess the merits of the proposed appeal on this issue. This is because there is no evidence from the lawyer acting for Mr Green-Hiroti in the District Court—and the reason there is no such evidence is of course because of Mr Green-Hiroti’s failure to take the necessary steps as directed in the timetable for the appeal. In any event, where an accused is represented by counsel at the time plea is entered, it may be difficult to establish a vitiating element.11
[38] I have considered whether the fourth exceptional circumstance (from those listed in Ritchie) of counsel error could be available to Mr Green-Hiroti on the basis that counsel did not appreciate that a tenable defence existed. I am not satisfied that it would be. Although Mr Green-Hiroti’s notice of appeal seems to both assert that there were witnesses to the incident and imply that their evidence would have assisted him, it is notable that Mr Green-Hiroti does not say in the statement he has recently provided to the Court that he did not assault a police officer at the incident in question. Further, Mr Green-Hiroti has not provided the Court with any evidence from witnesses to such effect.
[39] Accordingly, my high-level assessment of the merits of Mr Green-Hiroti’s appeal, on the information available to me, is that it is not likely that the guilty plea has produced a miscarriage of justice.
11 R v Le Page, above n 5, at [17].
Conclusion
[40] While I am mindful of Mr Green-Hiroti’s right to appeal according to law affirmed by s 25(h) of the New Zealand Bill of Rights Act 1990, in enacting s 338 of the Criminal Procedure Act, Parliament has recognised that the right to appeal is not an untrammelled right and that the court may, when appropriate, dismiss an appeal for non-compliance with a timetable or procedural order.
[41] I am satisfied that despite the filing of the statements on 13 November 2024, it remains the position that Mr Green-Hiroti has failed to comply with the Court’s timetable directions, or to adequately explain his failure. In my view his non- compliance has been serious, repeated and continuing.
[42] I consider that the legitimate expectation on the part of Police that it should be provided with adequate particulars of the grounds of appeal to enable a proper response has not been met as a result of Mr Green-Hiroti’s failures to comply with the Court’s directions. This runs counter to the public interest in finality of court proceedings and the orderly and efficient administration of the Court.
[43] I also consider that the merits of Mr Green-Hiroti’s appeal are such that this would weigh in favour of dismissing the appeal.
[44] I therefore conclude that an order dismissing Mr Green-Hiroti’s appeal is in the interests of justice. This is a case of ongoing and repeated breaches of the Court’s directions, with unfulfilled promises by Mr Green-Hiroti that he would comply and that he simply needed a little more time. Although Mr Green-Hiroti has, at the last minute, filed a statement with the Court that sets out his version of events on the day his guilty plea was entered, this is insufficient to “breathe life into the appeal”, given the other matters required to be progressed in order for the appeal to proceed and the amount of time he has had to take these steps.
Result
[45] Pursuant to s 338 of the Criminal Procedure Act 2011, the appeal against conviction and sentence in CRI-2024-483-8 is dismissed.
McQueen J
Solicitors:
Crown Solicitor, Palmerston North for Respondent
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