Greer v R [2013] NZCA 658 (16 December 2013)

Last Updated: 26 December 2013

IN THE COURT OF APPEAL OF NEW ZEALAND
CA714/2013 [2013] NZCA 658
BETWEEN	ALAN IVO GREER Appellant
AND	THE QUEEN Respondent

Hearing:	12 December 2013
Court:	O'Regan P, Ellen France and Wild JJ
Counsel:	Appellant in person with H Blackmore as McKenzie friend B F Windley for Respondent
Judgment:	16 December 2013 at 10 am

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by O’Regan P)

Introduction

[1] The appellant, Mr Alan Greer, is currently on remand awaiting trial in the High Court at Wellington on 28 April 2014 on multiple counts of drug offending, one count of rape, four counts of threatening to kill, two counts of aggravated burglary and one count of possession of an offensive weapon. An earlier trial date of 30 September 2013 had been set but the trial was adjourned due to concerns as to a complainant and key Crown witness’s ability to appear and give evidence.^[1] On 15 October 2013 Dobson J refused to grant Mr Greer’s bail application.^[2] Mr Greer now appeals under s 66(1) of the Bail Act 2000 (the Act).^[3]

Bail history

[2] Since his arrest in August 2012 Mr Greer has made six unsuccessful bail applications: on 28 August 2012 (before Miller J),^[4] 8 October 2012 (before Kós J),^[5] 13 February 2013 (before Williams J),^[6] 30 May 2013 (before Williams J),^[7] 23 August 2013 (before Williams J)^[8] and the decision under appeal. He has also made an unsuccessful habeas corpus application, which was in essence an attempt to relitigate bail by other means.^[9] He also appealed to this Court against the decision of Kós J declining him bail. That appeal was dismissed for want of jurisdiction, but the Court indicated it would not have been inclined to allow the appeal.^[10]
[3] Mr Greer has 151 previous convictions,^[11] 55 of which (including serious sexual and violent offences) were committed whilst he was on bail. This history triggers the restrictions on a grant of bail in ss 10 and 12 of the Act. He is also said to have interfered with and threatened a Crown witness in the present case.^[12]
[4] In order to be granted bail in the High Court, Mr Greer was required to satisfy the Court that, on the balance of probabilities, he would not, whilst on bail, commit any offence with violence or burglary or any other serious property offence.^[13] The primary considerations in whether to grant bail are the need to protect the safety of the public and the victims of the alleged offending.^[14] Even if the onus under those sections had been discharged, the Court would have been required to consider whether the factors under s 8 of the Act could have necessitated continued detention for the safety of both witnesses and the community.^[15]

High Court decision

[5] Dobson J reviewed a number of complaints by Mr Greer: alleged failures of police disclosure, failures by Department of Corrections staff to provide adequate facilities for him to prepare his defence, prosecutorial delay and the weakness of the Crown case (particularly in relation to the count of rape).
[6] Dobson J concluded that the onus under ss 10 and 12 of the Act was not discharged. He did not consider that the overall length of remand that would be involved (20 months), which the Judge correctly described a “worrying feature”, and Mr Greer’s concerns for the adequate preparation of his defence outweighed the difficulties Mr Greer had in discharging the onus under ss 10 and 12. He observed that any difficulties of preparation of the defence could be met by adequate disclosure, either in hard copy or electronically.

Submissions

[7] Mr Greer’s grounds of appeal principally appear to be that the Judge erred in failing to:

• (a) take account of the impediments to the adequate preparation of his defence, which can only be overcome by his admission to bail;
• (b) recognise that the grant of an adjournment would necessitate his admission to bail; and
• (c) regard the Crown case as weak on all counts, not just the rape count.

Discussion

[8] This Court has held in B v Police (No 2)^[16] the principles to be applied when considering an appeal against the grant of bail are as follows:

Someone who appeals a refusal of bail and is unable to point to a material change in the circumstances since the lower Court's decision faces the difficulty that it is a challenge to the exercise by a Judge of a discretion. The appellant must therefore establish that the refusal of bail was contrary to principle, or that the Judge failed to consider all relevant matters or took into account irrelevant matters, or that the decision was plainly wrong.

[9] We do not consider there has been any material change which would militate in favour of grant of bail in the circumstances since the decision of Dobson J declining bail. To succeed in this appeal, therefore, Mr Greer must establish that Dobson J erred in at least one of these respects.

Sections 10 and 12

[10] We agree with Dobson J that Mr Greer’s history and history of offending on bail counts strongly against him. Sections 10 and 12 both apply. We can see no error in Dobson J’s assessment that Mr Greer is unable to satisfy the Court on the balance of probabilities that he will not, while on bail, commit:

• (a) any offence involving violence against, or danger to the safety of, any person; or
• (b) burglary or any serious property offence.

[11] That is reinforced by the requirement in s 10(6) that the Judge considering a bail application for a person to whom s 10 applies must treat the need to protect the safety of the public and of victims as a primary consideration.
[12] We see these factors as decisive. But we will nevertheless address the principal concerns raised by Mr Greer.

Case preparation

[13] There is a dispute about whether there has been non-compliance by the prosecution or by Department of Corrections staff with disclosure obligations. Mr Greer complains of deficiencies in this regard. We note, however that the Crown now indicates that the police are addressing the claimed impediments and have now sent Mr Greer a hardcopy of electronic phone data which he seeks to examine. We remind the prosecution of its disclosure obligations. Given the delays that have already occurred the prosecutor needs to ensure there are no omissions in this regard. He or she should liaise with the prison to ensure material that must be disclosed to Mr Greer actually reaches him.
[14] Crown counsel also drew to our attention the comments of Williams J in his 23 August 2013 bail decision to the effect that he was not satisfied Mr Greer was being prevented from mounting an effective defence. Williams J observed that Mr Greer has elected not to instruct counsel and that his questioning of witness at pre-trials indicates that he “clearly has access to extensive disclosure material and has been able to organise it in a way which allows him to make the points he needs to make”.^[17] He further noted that Mr Greer’s McKenzie Friend, Ms Hannah Blackmore, has provided Mr Greer with extensive assistance outside of court and with advice during hearings.^[18]
[15] That said, we remind the Department of Corrections of its obligation under reg 193 of the Corrections Regulations 2005. That obligation has even greater significance in the present case than might otherwise be the case because of the imperative that there be no further delays in bringing the matter to trial.

Time to trial

[16] We do not consider that Dobson J failed to give adequate weight to the delay to trial in the present case. As noted earlier, the Judge observed that the 20 month period Mr Greer would spend on remand before the scheduled date of his trial was “worrying”.^[19] Where delay is very lengthy, it will often become a compelling, but not necessarily overwhelming, factor in favour of the grant of bail.^[20] The delay in this case was not the fault of the defence or the prosecution. Dobson J was correct to recognise that the safety of the public was the paramount consideration. There was ample evidence to support the weight he gave to that factor. Nevertheless, the prosecutor needs to ensure that the Crown does not cause any further delay.

Strength of Crown case

[17] On the material before us, we are unable to assess the likelihood that Mr Greer’s assessment of the relative weakness of the Crown case will ultimately be vindicated at trial. In any event, we agree with Dobson J that the s 10 and s 12 factors outweigh this factor.

Result

[18] For the above reasons, we are satisfied that Dobson J’s exercise of discretion to refuse bail was principled and founded on a proper weighing of the relevant considerations. Mr Greer has failed to demonstrate any error of fact or law.
[19] The appeal against the refusal of bail is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Greer HC Wellington CRI-2012-035-991, 20 September 2013.

^[2] Greer v New Zealand Police [2013] NZHC 2682.

^[3] Section 66 of the Bail Act 2000 continues to apply to this proceeding, despite its repeal, by virtue of s 397 of the Criminal Procedure Act 2011 as the proceeding was commenced before 1 July 2013.

^[4] Greer v New Zealand Police [2012] NZHC 2203.

^[5] Greer v New Zealand Police [2012] NZHC 2606.

^[6] Greer v New Zealand Police [2013] NZHC 184.

^[7] Greer v New Zealand Police [2013] NZHC 1259.

^[8] R v Greer [2013] NZHC 2161.

^[9] Greer v Chief Executive of the Department of Corrections HC Wellington CIV-2013-485-159, 5 February 2013. See Greer v New Zealand Police, above n 6, at [3].

^[10] Greer v R [2013] NZCA 26 at [16].

^[11] Greer v New Zealand Police, above n 4, at [5]; Greer v New Zealand Police, above n 2, at [3].

^[12] Greer v New Zealand Police, above n 5, at [7].

^[13] Bail Act, ss 10(5) and 12(5).

^[14] Sections 10(6) and 12(7).

^[15] Greer v New Zealand Police, above n 5, at [17].

^[16] B v Police (No 2) [2000] 1 NZLR 31 (CA) at [6].

^[17] R v Greer, above n 8, at [3].

^[18] At [4].

^[19] Greer v New Zealand Police, above n 2, at [6].

^[20] Olua v R [2012] NZCA 177 at [15]–[20]; Dodd v R [2011] NZCA 490 at [24] and Hereora v R [2011] NZCA 491 [16]–[17].