R v Greer CA161/03

[2006] NZCA 379

IN THE COURT OF APPEAL OF NEW ZEALAND

CA161/03

THE QUEEN

v

ALAN IVO GREER

Hearing:         16 February 2006

Court:            William Young P, Potter and Rodney Hansen JJ Counsel:      W C Pyke for Appellant

J M Jelas for Crown

Judgment:      28 February 2006

INTERIM JUDGMENT OF THE COURT

AThe Registrar at the District Court, Palmerston North is to file a memorandum as to the whereabouts of the trial file and produce with it any records of the trial in his or her possession.

BCrown counsel who appeared at the trial is to file a memorandum as to the whereabouts of his or her trial file, and produce with it any records

of the trial in his or her possession.

R V GREER CA CA161/03  28 February 2006

REASONS

(Given by Potter J)

[1]      On 3 June 2005 an order was made by this Court granting the appellant’s application  for  re-hearing  of  his  appeal  against  conviction  and  sentence  in  the District Court at Palmerston North in August 1997 for driving while disqualified, having previously been convicted of driving while disqualified.  The sentence was

35  days  imprisonment.     The  Court  of  Appeal  in  a  judgment  delivered  on

13 November 1997 dismissed the appeal against conviction and sentence.

[2]      For  the  appellant,  Mr  Pyke  seeks  orders  from  this  Court  pursuant  to s 389(a) of the Crimes Act 1961 in order that the appellant may obtain certain files and documents which he considers are, or may be, relevant to the proper preparation and presentation of the appeal.

[3]      Ms Jelas for the Crown accepted that disclosure has been incomplete.  She advised that the files in question appear to have been permanently lost.  However, the Police file for the prosecution giving rise to the appeal and the prosecution on which it relies, have now been made available to Mr Pyke.  Mr Pyke is to examine the Police files and to advise Crown counsel of any documents or records he considers are missing.

[4]      The  appellant  requests  the  file  relating  to  his  complaints  to  the  Police Complaints Authority in 1996.  Ms Jelas referred to the limits on disclosure under the Police Complaints Authority Act 1998 and to the judgment of this Court in Attorney-General v Hekkenberg [1998] 3 NZLR 257 on that point. In the first instance Mr Pyke is to pursue this aspect with Crown counsel to ascertain what part or parts of the Police Complaints Authority’s file, the Authority is authorised to disclose.

[5]      Subject to the appellant signing a waiver of privilege, Mr Pyke is to request from Mr Steve Winter of Palmerston North the file relating to the 1997 prosecution and any records in his possession relating to it.

[6]      We have caused a search to be made of the Court of Appeal file as to the original appeal.  That appeal file (together with the file for the current proceedings) are available for inspection by Mr Pyke when he is next in Wellington.  The only document on the file which plainly belongs to the original District Court file is the original of what was Exhibit four at the trial, the certified copy of entry of criminal record.  A copy of that document will be sent, separately, to counsel on both sides.

[7]      To further progress the matter we make the following orders pursuant to s 389(a) of the Crimes Act:

(a)      The Registrar  at  the  District  Court,  Palmerston  North  is  to  file  a memorandum as to the whereabouts of the trial file and produce with it any records of the trial in his or her possession;

(b)Crown counsel who appeared at the trial is to file a memorandum as to the whereabouts of his or her trial file, and produce with it any records of the trial in his or her possession.

[8]      This matter is to be brought back for review before William Young P in a telephone conference approximately six weeks hence on a date and at a time to be fixed by the Registry and notified to counsel and to the appellant.

Solicitors:

Crown Law Office, Wellington