R v Greer
[2014] NZHC 358
•4 March 2014
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2012-035-991 [2014] NZHC 358
THE QUEEN
v
ALLAN IVO GREER
Hearing: 21 February 2014
Counsel: I R Murray for Crown
Defendant in person (with H Blackmore as McKenzie friend) B S Yeoman as Amicus
Judgment: 4 March 2014
JUDGMENT OF MACKENZIE J
I direct that the delivery time of this judgment is
11 am on the 4th day of March 2014.
Solicitors: Luke Cunningham Clere, Wellington, for the Crown.
B S Yeoman Limited, Lower Hutt.
Copy to: Mr Greer
R v GREER [2014] NZHC 358 [4 March 2014]
[1] The defendant1 faces a trial in this Court commencing on 28 April 2014 on an indictment charging two counts of supplying a Class A drug, one count of supplying a Class C drug, one count of sexual violation by rape, four counts of threatening to kill, two counts of aggravated burglary and one count of possession of an offensive weapon.
[2] There are two pre-trial applications before the Court:
(a) An application by the Crown under ss 95 and 103 of the Evidence Act 2006 (the Act) in respect of the evidence of S, the complainant in respect of some counts in the indictment; and
(b) An application by the defendant for discharge.
[3] I deal first with the Crown’s application. The first order sought is an order under s 95(2) of the Act that the defendant, who is representing himself, must not personally cross-examine S. It is proposed, in terms of s 95(5)(b) that Mr Yeoman should conduct the cross-examination. Mr Yeoman has already been appointed for that purpose in respect of another witness, [P], under s 95(1).
[4] The grounds on which an order may be made are set in s 95(3). Mr Murray’s submission is that the relative youth of the witness, coupled with her mental health problems and her fear of seeing and being questioned by the defendant, satisfy those provisions.
[5] In support of the application, the Crown has produced a report from a clinical psychologist, Dr Christianson. She was required by the defendant for cross- examination, and I heard oral evidence from her.
[6] Dr Christianson carried out both a psychological assessment and a cognitive assessment of S. The Beck Depression Inventory indicated that symptoms of depression were severe. The Beck Anxiety Inventory indicated a severe level of
anxiety. Those are both self-report tests. Under the DSM-IV criteria for post
1 I use the new term, defendant, though this prosecution is subject to the previous regime.
traumatic stress disorder, S reported the alleged offending with which the defendant is charged and described re-experiencing that event with flashbacks. S described symptoms of agitation which have persisted over the course of the last year and which have had a significant impact on her life, in that she has found it difficult to move outside of her home.
[7] In summary, Dr Christianson says that the psychological assessment indicates that S experiences severe levels of both anxiety and depression and meets criteria for post traumatic stress disorder, with flashbacks and panic attacks triggered by reminders of the event. Dr Christianson expresses the opinion that these symptoms are likely to be exacerbated further by the Court process, particularly if she has to give evidence.
[8] Several tests were administered for the cognitive assessment. The WMS-IV Brief Cognitive Status Examination, which is a measure of global cognitive functioning yielded results in the fifth to ninth percentile, the borderline range, indicating that S was impaired in her cognitive performance. On the WAIS-IV, all
15 sub-tests were administered. The results confirmed that the majority of S’s cognitive abilities are within the low average range and that she exhibits a clinically significant impairment in working with language and verbal material. Because of the impairment an overall full scale Intelligence Score was not appropriate. Visuo- Spatial skills are within the low average range. Visual reproduction results were generally in the low average range. Results indicated that while her visual abilities were comparatively better than her verbal abilities, they were still well below the abilities of other people her own age.
[9] Dr Christianson summarises the results of the cognitive assessment as indicating that S performs better on visual tasks than on verbal tasks, but even her visual skills are at a low average level and are lower than the vast majority of her peers. She exhibits clinically significant impairments on verbal tasks and working memory tasks. She struggles to understand, process and recall verbally presented information and language-based concepts, particularly as these increase in complexity. As a result, her verbal comprehension, verbal expression and verbal memory are all severely compromised and are lower than 99 per cent of her peers. It
is Dr Christianson’s clinical opinion that S will not be able to provide reliable
information to the Crown as a witness.
[10] She further expresses the opinion that S will not be able to cope with being cross-examined in Court, either by the defendant or anyone else. It is her clinical opinion that S will not cope psychologically with the stress of being cross-examined in Court. It is also her clinical opinion that S will not be able to provide accurate information to the Court, irrespective of how that information is obtained.
[11] In light of these opinions, there must be severe reservations as to the potential reliability of any evidence which S may give. That is not, however, an issue which I can address at this stage. Section 71 of the Act provides that any person is eligible to give evidence, and compellable to give that evidence. The requirement for a witness to be competent to give evidence was removed. S is therefore both eligible to give evidence and compellable to do so. Any assessment of her reliability will be a matter for the jury, or possibly for the trial judge, if her evidence at trial is such as to lead to the risk of an unsafe verdict.
[12] Against that background I turn to consider the grounds in s 95(3).
(a) The age or maturity of the witness
[13] S is 20 years of age. That is not an age which gives rise to a need to consider a s 95 order.
(b) The physical, intellectual, psychological, or psychiatric impairment of the witness
[14] It is apparent from Dr Christianson’s test results, and her clinical opinion, that S has considerable intellectual and psychological impairments. However, I am not satisfied that an order is justified on this ground. As I have said S is eligible and compellable to give evidence despite those impairments. An order under s 95 would be justified on this ground only if cross examination by someone other than the defendant would be likely to alleviate the effect of those impairments. There is no evidence that this would be the case. Dr Christianson’s opinion is that S will not be
able to cope with being cross-examined at all. I am not satisfied that an order under s 95 would achieve an outcome on this ground which would justify the limitation on the defendant’s fair trial rights that an order under s 95 would necessarily entail.
[15] Mr Yeoman suggests that the trial might be adjourned for a second opinion to be obtained as to S’s fitness to give evidence. I am not prepared to adopt that course. No further delay in the trial can be countenanced. Further, as S is eligible and compellable to give evidence, a further report is unlikely to be of assistance.
(c) The linguistic or cultural background or religious beliefs of the witness
[16] This ground is not applicable.
(d) The nature of the proceeding
[17] The alleged offending against S constitutes supplying drugs, and threats to kill. The threat to kill allegations might potentially provide a jurisdictional basis for the making of an order. However, they must be assessed in light of all of the other relevant considerations. The type of questions which could properly be asked in cross-examination of a complainant in respect to an allegation of threatening to kill would not ordinarily be of a nature which would require that the witness be protected from direct questioning by the maker of the threats. I was not referred to any authorities, and my research has not disclosed any criminal case, in which an order has been made under s 95(2). The absence of authority suggests to me that apart from the type of proceedings in s 95(1), an order will rarely be appropriate. The alleged offending against S is not analogous to that.
(e) The relationship of the witness to the unrepresented party
[18] S is not related in any way to the defendant in circumstances which might give rise to any element of vulnerability. They are not kin. S’s statement indicates that there has been some sort of relationship between her and the defendant. That relationship appears to have been brief and casual. There is nothing in the material before me to indicate that it was of a nature that would give rise to a need to protect S from direct cross-examination by the defendant
(f) Any other grounds likely to promote the purpose of the Act
[19] No other grounds are suggested or relied upon.
[20] The power under s 95(2) is, by its nature, a power that the Court should exercise sparingly. As I have noted, I have been unable to find an instance of it being invoked previously in a criminal trial. The rights of a defendant to a fair trial and to present a defence are an important consideration to be weighed against the stress and trauma which a witness may suffer from giving evidence. The defendant has a legal right to represent himself, and to conduct his own defence. As counsel for the Crown submits, the fairness of the proceedings includes fairness to all parties, including a complainant. But fairness to a witness does not involve protection from cross-examination. Many witnesses suffer anxiety and stress from being required to give evidence and be cross-examined. That possibility is inherent in the eligibility and compellability provisions expressed in s 71 of the Act. As I have described, Dr Christianson’s evidence does not indicate that the level of stress and trauma would, if the cross-examination were conducted by a lawyer rather than the defendant, be diminished to an extent which justifies an order. If the way in which the cross-examination is conducted leads to concerns as to the stress on S, that can be addressed at trial by intervening to prevent improper questioning.
[21] For these reasons, the application under s 95(2) is refused. The s 103 application seeks an order that S give evidence from behind a screen. As she must face cross examination by the defendant, that application must also be refused.
Application for discharge
[22] The principal ground of Mr Greer’s application for discharge is that he has
been denied access to adequate facilities to prepare his defence.
[23] The defendant has expressed these concerns over a long period. They were most recently addressed in the context of a bail application on 15 October 2013 by Dobson J.2 At that stage, Dobson J was not satisfied that the onus on the defendant
under ss 10 and 12 of the Bail Act 2000 was outweighed by his concerns for
2 Greer v Police [2013] NZHC 2682.
adequate preparation of his defence and the length of the remand that would be involved. Dobson J went on to say:3
However, his current version of concerns at the impediments to preparing for trial should be addressed. In the end, I understood Mr Greer to say that if he were given the same level of access to a computer as has been granted to him in the past as a convicted prisoner (the Corrections officers treating prisoners on remand differently), then that ought to be adequate. The alternative is for the Police to provide a full set of disclosure in hard copy, not electronically. Mr Greer can elect which of those two options to pursue, and I direct that the Police and Corrections staff dealing with him ought to comply.
[24] The Court of Appeal dismissed an appeal against that decision, and in doing so reminded the Department of Corrections of its obligations under reg 193 of the Corrections Regulations 2005 (the Regulations).4
[25] Mr Greer made a request for access to computer facilities on
15 October 2013, immediately following his receipt of Dobson J’s judgment. That
request was refused.
[26] I sought a report from the Prison manager on the requests which had been made by Mr Greer for facilities to enable him to prepare his defence, the steps taken to meet those requests and the reasons for refusal to meet any requests. I received a report dated 12 February 2014. I heard oral evidence from Mr Burns, the acting manager of the Prison about that report.
[27] In addition, Mr Greer had, through his McKenzie friend Ms Blackmore, complained that steps which had been taken by the Prison had impacted on Mr Greer’s ability to prepare his defence. Her complaint is recorded in my Minute of 17 February.5 At my request, the Corrections officer, Ms Murphy, also gave evidence before me.
[28] I do not propose to review in detail the various issues raised by Mr Greer. It is not appropriate for the Court to become involved in issues of prison security and
prison discipline. It is not for the Court to direct how the Department of Corrections
3 At [9].
4 Greer v R [2013] NZCA 658.
5 R v Greer HC Masterton CRI-2012-035-991, 17 February 2014.
is to fulfil its obligations under reg 193 of the Regulations. Nothing that I say in this judgment is intended as a comment on whether it has done so. I am concerned with outcomes, not with process.
[29] The concern of the Court is with fair trial issues. Mr Greer has the right, under s 24(d) of the New Zealand Bill of Rights Act 1990, to adequate time and facilities to prepare a defence. The report which I have obtained, and the evidence which I have heard, satisfies me that this right cannot be fulfilled while Mr Greer is in custody.
[30] Mr Greer’s application on 15 October 2013 was made in light of the abovementioned specific direction in Dobson J’s judgment. Despite that, the request was declined. The report says:
The reasons for decisions to decline Mr Greer’s requests for computer facilities are primarily based on the belief that it would not be conducive to maintenance of prison safety and security for Mr Greer to have a computer for use.
[31] As I have said, I express no view on prison safety and security issues. Suffice to say that it is clear from this statement that the Prison’s view on those issues will effectively preclude any realistic access to a computer in prison.
[32] The report further says “In addition, Mr Greer’s application disclosed no demonstrable need for computer facilities to assist with the litigation.” Dobson J had specifically directed that the choice of computer access or hard copy was for Mr Greer to make. In light of that, it cannot be said that Mr Greer had disclosed no demonstrable need.
[33] The decision on Mr Greer’s application was made by the acting Prison manager, Mr Burns. The report to him on which his decision was made said:
The Prisoner has now [re-submitted] a new application on the basis of the High Court decision dated 15 October 2013, paragraph 9 where Judge gave the prisoner the choice of two options to assist the Prisoner towards preparing a defence in the matters he has before the court. That is the Police to provide a full set of disclosures in hard copy, not electronically, or for Corrections to give the prisoner access to a computer.
The Judge has used the word “ought” to comply and given the literal meaning of the word “ought” Corrections is not compelled to allow the prisoner computer access.
[34] That latter comment confirms my view that the attitude of the Prison authorities effectively precludes computer access for Mr Greer.
[35] The report then went on to refer to the previous use of a computer to falsify official forms used by the Department, and other arrangements made by Mr Greer’s unit to assist in being able to prepare a defence.
[36] Mr Greer challenged Mr Burns in cross-examination as to the allegation that he had previously used a computer to falsify official forms. Mr Burns was not able to give details of any such use.
[37] In short, I regard the Prison’s response to Mr Greer’s request, following Dobson J’s clear direction on the matter, as demonstrating that no computer facilities will be made available to Mr Greer.
[38] I have concerns about the adequacy of other facilities to enable Mr Greer to prepare for trial without computer access. It is not clear whether the hard copy disclosure which has been made would enable Mr Greer to prepare without computer access. Even if it would, it is clear from the evidence that he faces obstacles in prison. Access to a word processor brought to the prison for him to use has been delayed by prison procedures. A word processor brought to him by Ms Blackmore a month ago has not been made available to him, and will not be made available until the hard drive has been checked. Mr Greer must pay $160 for that to happen, as it is apparent from Ms Murphy’s evidence that funding by the prison is unlikely. Metal ring binders in which the hard copy material was filed have been removed from his cell. He has apparently been limited to three clear plastic folders to hold his papers. Again I make no comment on whether that was justified by Prison security concerns. I am concerned only with the effect on Mr Greer’s ability to prepare for trial. I consider that both the lack of a word processor and the disruption of materials involved in the removal of the files are substantial impediments to that.
[39] Mr Greer also faces difficulties in obtaining access to legal materials. The evidence of the Prison officers raises doubts as to his ability to obtain adequate access in prison. Without computer access (which as I have said is very unlikely), he will require hard copies of any legal materials he needs. Mr Burns’ evidence is that Mr Greer would have to obtain these at his own expense.
[40] In short, the evidence and other material before me leaves me with no confidence that if Mr Greer is required to prepare for trial in prison, he will have adequate facilities to do so.
[41] Mr Greer’s right to prepare his defence has not at this stage been compromised to an extent which would justify a discharge. There is still ample time available before trial for Mr Greer to prepare. But that can only be achieved if he is released from custody for this purpose. For that to happen, bail would be necessary.
[42] I will reconsider the question of bail at the next callover of this matter, set for
17 March. Mr Greer should, by Friday 7 March, advise the address which he proposes as a bail address. Counsel for the Crown should, by Thursday 13 March, file a memorandum advising whether Police have any issues with that address. The memorandum should include any grounds of opposition to bail, and conditions proposed by the Crown to address the risks referred to in s 8(1) of the Bail Act 2000.
[43] I will give a final decision on the application for discharge after reconsidering bail. I advise my intention, if bail is granted, to dismiss the application. If for any reason bail is refused, I will need to consider the application further in light of the reasons for refusal.
“A D MacKenzie J”
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