The Queen v Greer
[2007] NZCA 517
•20 November 2007
IN THE COURT OF APPEAL OF NEW ZEALAND
CA161/03
[2007] NZCA 517
THE QUEEN
v
ALAN IVO GREER
Hearing: 17 September 2007
Court: O'Regan, Potter and Keane JJ Counsel: Appellant in person
W C Pyke as Amicus Curiae
P K Hamlin for Crown
Judgment: 20 November 2007 at 2.30 pm
JUDGMENT OF THE COURT
The appeal is dismissed.
REASONS OF THE COURT
(Given by O’Regan J)
R V ALAN IVO GREER CA CA161/03 [20 November 2007]
Introduction
[1] Following a jury trial, Mr Greer was convicted of driving while disqualified.
He was sentenced to 35 days imprisonment and disqualified from driving for one year by Judge A P Christiansen on 17 September 1997. Mr Greer appealed unsuccessfully against his conviction and sentence to this Court: R v Greer CA381/97 14 November 1997.
[2] This is a rehearing of Mr Greer’s appeal pursuant to this Court’s decision in
R v Smith [2003] 3 NZLR 617.
[3] In the period since Mr Greer’s application for rehearing was made on 13 May
2003, Mr Greer has made various applications for disclosure, discovery and interrogatories. The most recent of these was rejected on 16 May 2007.
[4] Mr Greer filed written submissions in support of his appeal. They raised again issues that had been resolved by this Court’s minute of 16 May 2007, and we
do not intend to revisit those issues.
[5] Mr Greer’s written submissions were intemperate, threatening and abusive in tone, and made serious but baseless allegations against police officers, Crown lawyers, defence lawyers, court officials and Judges. Mr Greer chose not to amplify
on these written submissions orally. We did, however, receive written submissions, and heard extensive oral submissions from the amicus curiae, Mr Pyke, in support of the appeal. We are satisfied that there was no genuine issue in Mr Greer’s written submissions that was not addressed by the amicus in his submissions.
Background
[6] On 15 May 1996 Constable John McArdle observed Mr Greer driving a Ford Cortina motor car at Manakau near State Highway 1. Constable McArdle knew Mr Greer and radioed the Levin Police Station for further inquiries. The police officer on the radio at the station, Inspector John Rivers, patrolled the area looking
for Mr Greer’s vehicle. Mr Greer’s vehicle was found and he was arrested shortly
thereafter at an address at Kuku Beach Road, near Muhunoa. Mr Greer was taken to the station and was charged by Constable Warren Olsson with driving while disqualified under s 35(1)(a) of the Transport Act 1962. The circumstances of the disqualification are set out at [14] - [15] below.
[7] Mr Greer’s trial before Judge Christiansen in the present case commenced on
20 August 1997. In evidence, Constable Olsson said that he had not fingerprinted nor photographed Mr Greer on 15 May 1996. The Constable was also equivocal in
his memory as to the nature of Mr Greer’s facial hair.
Issues
[8] The essence of Mr Greer’s defence was that he was not the driver of the car seen by Constable McArdle at Manakau. Alternatively, he argued that, if he was the driver, it was not proven that, at the relevant time, he was a disqualified driver.
[9] Mr Pyke and Crown counsel, Mr Hamlin, were agreed that there are three issues for disposition of this appeal:
(a) Whether there was a failure by the police to disclose and preserve evidence relevant to the identification of Mr Greer as the driver and,
if so, whether that occasioned a miscarriage of justice;
(b)Whether the Crown’s evidence at trial provided a proper basis for the conclusion that Mr Greer was a disqualified driver on 15 May 1996;
(c) Whether Mr Greer had the requisite mens rea for the offence of driving while disqualified.
The allegation of non-disclosure of photographs by the police
[10] Constable McArdle gave evidence at trial that he identified Mr Greer as the driver of the car based on having previously seen Mr Greer approximately 15 - 20 times. This was evidence of recognition of Mr Greer rather than mere identification
evidence. Constable Rivers gave evidence as to how he received a radio message from Constable McArdle, and how that led him to locate Mr Greer’s vehicle, and Mr Greer, at the address at Kuku Beach Road.
[11] When Mr Greer was taken to the police station at Levin Constable Olsson completed a charge sheet. He accepted in evidence that he had noted on the charge sheet that Mr Greer had been fingerprinted, palmprinted and photographed. However his evidence was that he had not, in fact, fingerprinted, palmprinted or photographed Mr Greer and, to his knowledge, no other officer had done so either. Constable Olsson also conceded a hazy memory as to Mr Greer’s appearance that day. In particular, Constable Olsson accepted that although he had recorded on the charge sheet that Mr Greer did not have a beard, he was not sure whether he had filled in the charge sheet correctly or not.
[12] Mr Hamlin for the Crown submitted that on the evidence it heard, the jury could properly have concluded that Mr Greer was the person who was driving the vehicle when Constable McArdle saw it at Manukau. Such a finding would be based
on Constable McArdle recognising Mr Greer, Constable Rivers locating Mr Greer based on Constable McArdle’s radio message and Constable Olsson simply making
a mistake as to Mr Greer’s appearance owing to the passage of time. He argued that, irrespective of Constable Olsson’s evidence, the evidence of Constables McArdle and Rivers proved that Mr Greer was the driver. We agree with Mr Hamlin’s assessment.
[13] Additionally Mr Greer alleged that the police had deliberately destroyed photographic records. This is essentially an argument that Mr Greer was precluded from advancing a defence that he was not the driver because he could not produce photographs that might have helped his case. Mr Greer made a similar allegation with respect to recordings and transcripts of police radio communications. There is
no evidence to support the contentions that photographic and radio evidence was destroyed deliberately. As the jury heard at the trial, Constable Olsson said no photograph was taken, contrary to what he had recorded on the charge sheet. His evidence that no photograph was taken was not subject to cross-examination by Mr Greer. The position relating to the apparent inconsistency between what the
charge sheet indicated and what Constable Olsson said happened was known to the jury. The jury had the opportunity to assess Constable Olsson’s honesty, and there is
no basis on which this Court should second guess that assessment. Likewise Constable Rivers gave evidence at trial, challenged vigorously by Mr Greer in cross- examination, that no recordings or transcripts ever existed of 15 May 1996 radio communications concerning Mr Greer. Just as with Constable Olsson’s evidence, the jury was in a position to assess the conflict between Constable Rivers’ evidence and Mr Greer’s challenges in cross-examination. We are not in a position to interfere with that assessment. In those circumstances, this ground of appeal fails.
Proof of disqualification
[14] Mr Greer’s disqualification arose as follows. On 1 May 1995, Judge F G Paterson had found Mr Greer guilty of unlawfully taking and driving a motor car, driving while disqualified (he had been disqualified indefinitely in July 1993) and refusing to give a blood specimen: Police v Greer DC POR CRN4091015847. Judge Paterson made an indefinite disqualification order pursuant to s 30A of the Transport Act. A Land Transport Safety Authority (LTSA) certificate, recording the
s 30A conviction, was delivered to Mr Greer on 4 May 1995. It is signed by
Mr Greer.
[15] Mr Greer appealed to the High Court. The appeal was heard by Doogue J: Greer v Police HC WN AP158/95. Doogue J noted at 5 that Mr Greer had been disqualified from driving, but considered it would be inappropriate for the Court to interfere with Judge Paterson's sentence in the circumstances of the case. The appeal was dismissed.
[16] Mr Pyke pointed out that on appeal from that disqualification, Doogue J did not refer to the length of the disqualification, even though he referred to the fact of it. Doogue J had received, on 19 July 1995, a memorandum from Judge Paterson to the effect that Mr Greer had been sentenced to a term of imprisonment and that Judge Paterson had made an order under s 30A of the Transport Act. Section 30A (now repealed) provided that where a person was convicted of certain enumerated offences twice in five years, in circumstances of a certain seriousness (stipulated in the Act),
the court had to disqualify the person from obtaining a driver’s licence until an order was made removing that disqualification.
[17] Mr Pyke pointed out that neither Judge Paterson nor Doogue J referred to the length of the disqualification. However as Mr Hamlin pointed out, any disqualification under s 30A was indefinite, or at least it lasted until the Director of Land Transport deemed that it should be removed. Accordingly, the failure to mention the period of disqualification is of no moment, because there was no period
of disqualification.
[18] Subject to the question of mens rea, to which we return below, the fact of Mr Greer’s disqualification was accepted by the jury, which had a certified copy of Mr Greer’s conviction, the letter of notice regarding the s 30A decision and a copy of both Judge Paterson and Doogue J’s judgments. There is no basis to interfere with the jury’s assessment that that evidence proved the fact of disqualification.
Mens rea
[19] In Millar v Ministry of Transport [1986] 1 NZLR 660 a Full Court of this Court considered the requisite standard of mens rea for the offence of driving while disqualified. Cooke P, delivering a judgment on behalf of himself and Richardson J with which the other members of this Court agreed, said at 669:
A tendency to imperil the public safety is not the main reason for penalising disqualified driving. The driving itself may be perfectly safe. Often, though not invariably, the original cause of disqualification will have been in some way related directly or indirectly to public safety, but the offence of disqualified driving is not created for that reason: the dominating purpose is
to ensure enforcement of Court orders. … In other words mens rea, in the sense of guilty knowledge, should be understood to be an ingredient of the offence. But, on proof that a disqualification order still in force was duly made against the defendant, his knowledge of the disqualification is naturally to be assumed in the absence of evidence suggesting otherwise. If there is such evidence, the prosecution must affirmatively prove knowledge beyond reasonable doubt.
[20] Mr Pyke referred to the decision of Heath J in Yates v Police HC AK AP23/01 21 May 2002. In that case, the police questioned the appellant at a roadside
checkpoint. Under questioning the appellant said only that he had been disqualified some time the previous year. The appellant did not appear to know the period of that disqualification, which extended to the time of the offending, nor did he know that the disqualification was indefinite until the appellant took steps to procure a licence. The District Court Judge held that documentary evidence, in the form of successive certified copies of informations detailing the appellant’s disqualification, were sufficient to rebut the appellant’s contention that he did not know of his disqualification. Heath J allowed an appeal, saying at [16]:
The learned District Court Judge has, effectively, relied upon knowledge at
[the dates of the earlier offending] (which pre-date the driving incident in this particular case by over 12 months) to demonstrate that the guilty knowledge required by Millar existed. In my respectful view the learned District Court Judge was not entitled to do that as it was unsafe to assume such knowledge from that evidence. The information was in documentary form only and was not capable of being tested to ascertain whether the requisite knowledge was or was not present.
[21] Yates is clearly distinguishable from the present case. In the present case, there is documentary proof of the s 30A order in the form of the LTSA certificate, signed by Mr Greer. But there is much more. Mr Greer was present in Court when Judge Paterson made the order. According to the evidence of Constable Dennis Mahoney, apparently accepted by the jury in the trial before Judge Christiansen, Mr Greer was sent an information pack concerning his disqualification. Constable Mahoney also delivered the LTSA certificate to Mr Greer. Most tellingly, Mr Greer appealed his disqualification to the High Court, resulting in Doogue J’s judgment. Together, these matters provided a reasonable basis for the inference apparently drawn by the jury that Mr Greer knew that he was disqualified in May 1996,
12 months after the sentencing of Judge Paterson in which the s 30A order was made.
[22] This ground of appeal fails.
Result
[23] We reject all grounds of appeal. The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington
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