R v Greer - [2006] NZSC 76

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IN THE SUPREME COURT OF NEW ZEALAND
SC 51/2006
[2006] NZSC 76
ALAN IVO GREER
v
THE QUEEN
Court:Blanchard, Tipping and McGrath JJ
Counsel:Appellant in Person

S P Edwards for Respondent

Judgment:26 September 2006

JUDGMENT OF THE COURT

THE APPLICATION FOR LEAVE TO APPEAL IS DISMISSED.
REASONS
[1]       Mr Greer is appealing to the Court of Appeal against conviction for a number of sexual offences. The Court of Appeal has refused to grant him bail pending the hearing of his appeal to that Court. He now seeks leave from this Court to appeal against that bail decision.
[2]       The application to the Court of Appeal was made under s 70 of the Bail Act 2000, which applies if a person is in custody under a conviction and is appealing the conviction or sentence, or both, to the Court of Appeal or the Supreme Court. The disjunctive “or” recognises that the appeal may either be in the first place to the Court of Appeal and then to this Court, or direct to this Court (under s 14 of the Supreme Court Act 2003).
[3]       Section 70(2) provides:
(2)       The Court of Appeal or the Supreme Court (as the case may be) or the Judge who presided at the trial in the court below may, if it or the Judge thinks fit, on the application of an appellant and on such terms and subject to such conditions as the court or Judge thinks fit, grant bail to the appellant pending the determination of the appeal, if the appellant is in custody only under the conviction to which the appeal relates.

[4]       It appears from this provision that it is only the trial Judge or the Court to which the convicted person is appealing the conviction or sentence – the Court of Appeal or the Supreme Court “as the case may be” – which can grant bail thereunder. In the present case, Mr Greer chose to make his s 70 application to the Court of Appeal, which is seized of his appeal against conviction and sentence, rather than to the trial Judge. Once that Court refused the application, s 70 would seem to have no further relevance.
[5]       This can be contrasted with the position of someone who is seeking bail pending trial. Section 69A(1) of the Bail Act expressly gives the Supreme Court power to hear an appeal against a decision of the Court of Appeal to refuse an application for bail under s 66, thereby creating a two-step process. If it had been intended that the position should be the same under s 70, it might have been expected that language similar to that in s 69A would have been employed. As s 70 stands, it does not seem to give this Court any power to grant bail unless the Court is also seized of the substantive appeal.
[6]       The position is not so straightforward, however, because the definition of…

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 R v Greer

Details

AGLC: R v Greer [2006] NZSC 76
Case: [2006] NZSC 76
Decision Date: 26 September 2006

CaseChat Overview and Summary

In the case of Alan Ivo Greer v The Queen, the appellant, Alan Greer, sought leave to appeal against the Court of Appeal's decision to deny him bail pending the hearing of his appeal against a conviction for a number of sexual offences. Greer appealed directly to the Supreme Court of New Zealand under s 7 of the Supreme Court Act 2003, after the Court of Appeal refused his application for bail under s 70 of the Bail Act 2000. The central issue before the Supreme Court was whether the Court had jurisdiction to hear Greer's appeal against the Court of Appeal's decision to deny bail, despite the specific provisions of s 70(2) of the Bail Act. The Court considered the language of s 70(2) and the broader context of the Bail Act, concluding that while the Court of Appeal had the primary jurisdiction to grant bail under s 70, the Supreme Court did have jurisdiction to hear an appeal against the Court of Appeal's decision, as it was a civil proceeding under s 7 of the Supreme Court Act.

The Supreme Court, in its reasoning, noted that the Bail Act 2000 is exclusively concerned with bail in criminal proceedings and that any appeal to the Supreme Court in a bail matter must be treated as a civil proceeding under the Supreme Court Act. The Court also highlighted that the Bail Act does not explicitly deny the Supreme Court the right to hear an appeal against a Court of Appeal's refusal to grant bail. Consequently, the Court determined that it had the requisite jurisdiction to hear Greer's appeal, despite the specific provisions of s 70(2). However, the Court found that Greer's appeal did not meet the criteria for leave under s 13 of the Supreme Court Act, as it did not raise an issue of general principle or suggest a potential miscarriage of justice. Therefore, the application for leave to appeal was dismissed.

Orders