ALAN IVO GREER v R [2003] NZCA 82 (4 June 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA197/01

THE QUEEN

v

ALAN IVO GREER

Hearing: 10 March 2003

Coram: Glazebrook J

Hammond J

O'Regan J

Appearances: Appellant in person

Dr D L Stevens QC as amicus curiae

B J Horsley for Respondent

Judgment: 4 June 2003

JUDGMENT OF THE COURT

Introduction

[1]	Mr Greer was convicted after a jury trial in the District Court at Palmerston North on 22 May 2001 on counts of kidnapping, threatening to kill and injuring with intent to injure.The complainant in the case was Mr Greer’s estranged partner.Mr Greer appeals against his conviction.

Appellant’s submissions

[2]	Mr Greer filed the original notice of appeal in person.In the intervening period between the filing of the notice of appeal and the hearing of the appeal Dr Stevens QC was appointed as amicus curiae to assist the Court.Dr Stevens filed submissions, which expanded and elaborated on Mr Greer’s grounds of appeal.Mr Greer also filed written submissions and we heard from both Mr Greer and Dr Stevens orally.There are four grounds of appeal.
[3]	The first ground is that there was lack of disclosure on the part of the police.This is not a complaint of lack of disclosure of police material relating to the charges actually faced by Mr Greer but a complaint about a lack of wider disclosure relating to a number of police inquiries conducted in relation to Mr Greer since 1994.By the time the appeal was heard Mr Greer had received disclosure of most of this material with the exception of material relating to what was called Operation Huhu.Mr Greer believes that the Operation Huhu files could contain material that would have enabled the complainant’s credibility to be attacked.
[4]	When Mr Greer requested disclosure before his trial the police position was that Mr Greer had been provided with full disclosure of the Operation Huhu material at the time the charges arising out of that operation were being dealt with and that it would not be disclosed again.This approach was endorsed by the Crown Solicitor.Mr Greer says that he no longer had the material.Indeed he says he never had the material.As he was represented by counsel it may well be that his then counsel received the disclosure material and that it was not passed on to Mr Greer but only discussed with him.
[5]	Although it seemed very unlikely that the Operation Huhu file would contain anything of importance out of an excess of caution this Court ordered that the police make disclosure of the Operation Huhu files to Mr Greer and gave Mr Greer and Dr Stevens leave to file further submissions setting out how the Operation Huhu files could have been used to challenge the complainant’s credibility with leave for the Crown to reply.
[6]	After a thorough search the police were unable to locate all of the Operation Huhu files.What was located has been disclosed.The Crown has filed a memorandum setting out as an attachment a letter from Detective Sergeant Olsson, who was the officer in charge.The letter sets out his recollection of the operation with particular reference to matters relating to the complainant.
[7]	According to that letter, ‘Operation Huhu’ was a Police operation run by the Levin CIB, relating to search warrants executed at Mr Greer’s Levin address on 30 June, 2 July and 4 September 1998.Mr Greer was charged with cannabis related offences, dishonesty offence and unlawful possession of a pistol and explosives.The complainant in this case was jointly charged with the drugs and dishonesty offences.The case proceeded to trial at the Palmerston North District Court on 21 June 1998.On the first day of trial, Mr Greer pleaded guilty to most of the charges and on the second day of trial to the remaining charges.The complainant pleaded guilty to cultivation of cannabis and was granted a s347 dismissal on the remaining charges.
[8]	There were two statements taken from the complainant.A transcript of a statement recorded in the notebook of Detective Moore on 30 June 1998 has been provided to Mr Greer.He acknowledges that this would have been of no assistance to him in respect of the current charges.
[9]	A further statement was taken on 4 September 1998 by Detective Christopher Payne.This statement has not been located.It related to a telephone call on that day that the complainant had received from Mr Greer regarding explosives he had left at their property and reported to the police.Detective Sergeant Olsson in his letter says that the statement covered:
(a)	An outline of the telephone call the complainant received from Mr Greer from prison.
(b)	The fact that the complainant did not know of the existence of the explosives until hearing from Mr Greer.
(c)	A record of the complainant’s concerns for Mr Greer’s well-being.
(d)	The complainant’s assertion that she was unable to explain Mr Greer’s actions in placing the explosives in the garage and risking the safety of her and the children.
[10]	Detective Sergeant Olsson spoke to Mr Greer in Manawatu Prison at 9.40 a.m. on 4 September 1998.Mr Greer confirmed the information provided by the complainant and said that he had hidden two sticks of Powergel explosive and detonators in his garage.Detective Sergeant Olsson recorded the conversation he had with Mr Greer, and a transcript was attached to the letter.As a result of that conversation the police removed the complainant and the children from the house and recovered the explosives and detonators from the garage with the assistance of explosives experts.
[11]	Detective Sergeant Olsson’s letter goes on to say that the complainant’s statement of 4 September 1998 was only relevant to the charges of unlawful possession of explosives laid against Mr Greer and that, as the complainant was a co-accused on other charges at the same trial, she was not going to be called to give evidence against Mr Greer on the explosives charges.He said that there was sufficient evidence against Mr Greer without her statement.
[12]	Mr Greer in his further submissions on this point expressed concern that the relevant parts of the Operation Huhu file have been removed.He submitted that his conviction should be overturned to ensure files relating to prosecutions are taken better care of in future.
[13]	Dr Stevens in his further submissions pointed to the fact that the summary of the complainant’s statement of 4 September 1998 was provided by Detective Sergeant Olsson some years after the event and that he was not even the officer who took the statement.In addition, what has been provided is only a description of the categories of material covered.Dr Stevens went on to say that Mr Greer’s position is:

that he believes that the complainant may well have lied to the police on one or more issues when making the statement.In this respect it would be significant that she has criminal convictions and was convicted of an Operation Huhu offence.He believes that if she was faced, during cross-examination at his 2001 trial, with the lies to the police she would have likely have conceded she had told lies.

He submitted that, as the case was based on the credibility of the complainant, this would have been of significance.

[14]	Dr Stevens also noted that different explanations have been given for the failure to disclose the file.He said that the Court was informed at the hearing that the file was at the Commissioner’s office but it now appears substantial parts of the file are missing.He noted that:

[Mr Greer’s] perception of this is that substantial parts of the file have been deliberately removed from police archives because officers knew that the statement Mr Greer was seeking contained material that would have assisted his defence.The reasons given for non-disclosure and the revelation at this late stage that much of the file can not be found only serves to reinforce for the appellant his view of the matter.

[15]	The second ground of appeal relates to Mr Greer’s request to the Levin District Court for a wide-ranging release of information.Mr Greer considered that there would be information in the files he requested that would support his application to have the trial moved out of the Levin and Palmerston North area.Two applications for change of venue were made (on 8 June 2000 and 16 November 2000) and rejected.Mr Greer had concerns that he would not receive “just treatment” in Levin, alleging “corrupt practice by the court, police and prison authority, acting in cohesion with each other” (application for change of venue, 8 June 2000).Because he was denied access to information by the police and by the Levin District Court he believes he was unable properly to further his application.He believes that information held by the court would support his contention that the police were running a campaign against him in the public arena and that there was a risk that the jury would have been prejudiced against him as a result.
[16]	Mr Greer’s third ground of appeal is that he was not provided with adequate facilities with which to prepare a defence, in breach of s24(d) of the New Zealand Bill of Rights Act 1990.Mr Greer had originally wished to represent himself and said he wished to be able to have his computer brought to the prison for use in his cell.The computer was, he says, required for security purposes and to enable him to provide legible, properly presented material.He indicated also that there were no communal computer facilities in the prison.Mr Greer pointed to an instance where his handwriting had been misread.While this instance was not of particular significance he contends that the lack of a computer had forced him to have legal representation rather than representing himself as he had wished to do.
[17]	Mr Greer complained to the prison services when his request for access to his computer was denied.The Department of Corrections responded, drawing his attention to the Third Schedule, Part C (2) Penal Institutions Regulations 2000 which allows an inmate to have a computer in his cell solely for educational purposes. Despite a further complaint from Mr Greer the Department of Corrections did not change its decision and a complaint to the Ombudsman was unsuccessful.
[18]	Mr Greer also complains that his ability to prepare for trial was hindered by decisions of the prison service to prevent contact between himself and persons outside the prison who were assisting him in the preparation of his defence.Mr Greer complained to the Inspector that he had had at least four visitors turned away. He was advised that he could seek a review but he did not.
[19]	Mr Greer’s fourth ground of appeal is that there were less serious charges that would normally have been laid in a case such as this and that a lesser charge would have given some choice to the jury rather than the simple choice between the serious charge of injuring with intent or acquittal.According to Mr Greer the police relied solely upon the testimony of the complainant and with no medical evidence to support the charge in regard to the injuring with intent charge.Nor did the police obtain medical evidence until some three months later.
[20]	Dr Stevens expanded on this submission by noting that under s339 of the Crimes Act 1961 it may have been open to the trial judge to have left to the jury for their consideration a lesser charge of assault as an alternative to the injuring with intent to injure count.Such an argument would focus on the evidence relating to the issue of whether the complainant was injured.
[21]	Dr Sutcliffe examined the complainant on 12 May 2000 and described a bruise in front of the left ear, bruising inside the right lower lip, a bruise on the outside of the left leg, a swollen knee, a bruise on the left mid or left side of the back and a tender, swollen joint in the third finger.Dr Padmanabhan also examined the complainant a day after Dr Sutcliffe.He described a perforated right eardrum.An issue at the trial was whether the eardrum was perforated by the assault or as the result of an infection.The evidence was that the complainant was suffering an infection in both ears, which could have given rise to a perforation of the eardrum.The complainant had not mentioned the problem with her ear when examined by Dr Sutcliffe on 12 May 2000.Moreover, the defence case was that the complainant had not said that she had been punched on the ear that had been perforated.
[22]	If the jury had put to one side the evidence of the perforated eardrum, on the basis that it could have been caused by the infection, Dr Stevens submitted that the remaining evidence called to establish ‘injury’ may have been tenuous.He thus submitted that there may have been a danger that the jury thought that what Dr Sutcliffe described was not more than merely transitory and trifling, but that, faced with a stark choice between conviction on the count charged and acquittal, the jury convicted because they did not want Mr Greer “to get away with it”.
[23]	Dr Stevens conceded that this submission is problematical in that there was no application by the defence (or by the Crown) to have included offences left to the jury.Indeed, the defence appears to have run its case on an all or nothing basis – i.e. that if there was an assault it was at the lowest end of the spectrum and that the Crown had failed to prove that there was an injuring with intent to injure.

Crown submissions

[24]	The Crown submitted that there is no suggestion that the police did not disclose all the relevant material relating to the investigation of the charges that were before the Court.The police were not required to disclose the information relating to the 1998 incident between Mr Greer and the complainant.It had already been disclosed to Mr Greer and it did not form part of the Crown case.Although Mr Greer claimed the material was relevant he could give no indication as to how he considered the complainant’s credibility could have been challenged as a result.Furthermore the Crown submitted, that even if disclosure should have been made, Mr Greer has not showed any unfairness that resulted from the non-disclosure of this material.
[25]	As regards the lack of disclosure of court records, Mr Greer had been invited to narrow down his request but did not take up that invitation. Again the lack of disclosure was not pursued by any of Mr Greer’s counsel. Although Mr Greer claimed that the information was necessary to assist in an application for change of venue he has not specified what the information might have contained or where the prejudice arises. There is no foundation for suggesting that Mr Greer could not receive a fair trial in Palmerston North or that the trial, which did in fact proceed, was unfair to Mr Greer.
[26]	In relation to Mr Greer’s submission that his right to adequate facilities to prepare a defence was breached by the refusal of the Department of Corrections to allow him the use of a computer the Crown submitted that this issue was dealt with by the Department of Corrections in their advice to Mr Greer of June 2000.
[27]	The Crown further submitted that there does not appear to be any suggestion that trial counsel was hampered in his preparation of Mr Greer’s defence, or that witnesses were not called that should have been called, or that trial counsel failed to follow Mr Greer’s instructions. Such matters were never raised with the trial judge and no application for adjournment was ever made. No prejudice has therefore been demonstrated.
[28]	The Crown submitted that the failure of counsel to apply to have a lesser offence put to the jury is fatal to Mr Greer’s ground of appeal.In any event he was properly convicted of injuring with intent to injure.There is no suggestion that the evidence as led did not disclose sufficient evidence upon which a jury could find that all the elements of the charge were present.Unless Mr Greer can say that the conviction is not supported by the evidence then it is difficult to see how a miscarriage of justice could have occurred.
[29]	The Crown in its further submissions in reply to the submissions referred to in paras [12]-[14] above, submitted that Mr Greer has still not laid an evidential foundation for asserting that disclosure of the Operation Huhu files was necessary to obtain a fair trial.

Discussion

Lack of Police Disclosure

[30]

In relation to the Operation Huhu files, as explained to Mr Greer at the hearing, there is a rule of evidence that answers given by a witness to questions on collateral issues put in cross-examination are final in the sense that no rebuttal or other evidence can be called.This is to avoid a trial being side-tracked by irrelevant issues.It is difficult to see that any matter related to Operation Huhu could be anything other than collateral.In addition, even if the complainant, on being accused of lying in her statement about the explosives, had admitted this (and we have no means of knowing whether she would have done so) Mr Greer has not been able to point to any real advantage that would have ensued.Given the subject matter of the interview with the complainant we cannot see how the matter could have been raised without introducing material that would have been highly prejudicial to Mr Greer.This ground of appeal must fail.

Lack of access to Court Records

[31]

Mr Greer wrote on 22 June 2000 to the Levin District Court asking for a wide ranging release of information including the full records of all appearances and applications relating to each of the charges he was facing at the time.In addition he sought an itemised list (with an index) of all information held by the Court that was relevant to any charges he had faced over the previous 12 years, including information about search warrants and interception warrants executed in relation to himself and any Family Court matters.After some correspondence with the Levin District Court and the Deputy Registrar of the High Court at Palmerston North Mr Greer made a formal application to the Palmerston North District Court for disclosure of the requested information.The application resulted in a decision of Judge Lovegrove dated 27 November 2000.His Honour stated that Mr Greer:

... cast his net far too widely in seeking access to information and has thereby created a predicament for Court staff given the statutory constraints which impinge upon them and which limit the extent to which information can be disclosed.

However the judge continued:

Mr Greer is aware I am initiating a process which will identify what he is entitled to have disclosed to him and thereafter facilitate access to disclosable information having regard to his custodial status.

[32]	It appears that Mr Greer received a memorandum from the Court in January 2001 headed “Access to Court Files” in the following terms:

[1] Pursuant to s71(4) Summary Proceedings Act 1985 [sic] (Criminal) and R69 District Court Rules 1992 (Civil), any person who is a party to Court proceedings has a prima face entitlement to the information on the Court file relating to those proceedings.However, that entitlement is subject to any directions a Judge may have made or make in respect to the information on any file.The entitlement is also subject to ss138 and 140 of the Criminal Justice Act 1985 in the case of criminal proceedings.

[2] From a practical point of view, authorised access to information will involve the inspection of a file in the confines of the Court and under Court supervision, and obtaining copies of documents specifically identified (at the expense of the searcher).There is no obligation on the Court to inspect files, identify documents, or provide copies.If a party to the proceedings is unable to effect an inspection personally, he can appoint a consenting agent in writing to carry out the inspection and obtain copies of designated documents on his behalf.

[3] A copy of s71 Summary Proceedings Act, R69 District Court Rules; and ss138 and 140 of the Criminal Justice Act are enclosed.

[33]	The memorandum did not refer to the Criminal Proceedings (Search of Court Records) Rules 1974 which are directly applicable to Mr Greer’s situation.In accordance with those rules a search of records would need to be undertaken during office hours and under court supervision.There is no obligation on a court to undertake the inspection or identify material.Rule 2(2) provides the right, without payment of a fee, to be issued with a copy of a file to a criminal proceeding but only to a party to that criminal proceeding.There is a temporal limit to that obligation in our view.It only subsists during the currency of the proceeding and any associated appeal.In any event the party to the proceedings would have to identify the material required.
[34]	Mr Greer was entitled to inspect the files himself on court premises and to obtain copies of documents or to appoint an agent for that purpose.However Mr Greer did not instruct his counsel to inspect the files.Neither did he apply to be taken from prison to inspect the files himself.In the circumstances therefore he cannot complain about his lack of ability to inspect the files.
[35]	In addition, we consider it highly unlikely that anything in the files would have supported his application for transfer being granted, in that it is difficult to see there would be anything that would suggest that Mr Greer could not have a fair and impartial trial from a Palmerston North jury.The only prejudicial publicity that Mr Greer can identify as having occurred before the trial is a newspaper article headed Police to get tough on career criminals which reported that police were establishing an operational team named “Grub Busters” to focus on “recidivists and high priority offenders”.Mr Greer’s name is not mentioned in the article, but he says that in Horowhenua and Palmerston North he is known by the nickname “Grub”.
[36]	There is no evidence that Mr Greer’s nickname would be widely known in the Palmerston North area such that ordinary members of the public sitting on the jury would be aware of it.Even if there were such evidence we do not consider that an article of the type pointed to about recidivists generally would be linked to a particular person whatever their nickname and certainly not in a manner to prejudice that person’s trial on charges of the nature faced by Mr Greer.We note too that Mr Greer did not point to anything in the transcript of evidence or in the judge’s summing-up that would suggest that he did not have a fair trial.This ground of appeal must fail.

Section 24(d) New Zealand Bill of Rights Act 1990

[37]	We move now to the question of the denial of computer facilities to Mr Greer and alleged difficulties with visitors.We do not consider that Mr Greer’s lack of access to a computer has resulted in a miscarriage of justice (and that is the test at this stage).While Mr Greer’s preference may have been to defend himself he did not complain to the judge about the lack of computer facilities or indicate in any way that he did not wish to be represented by counsel.He must be taken therefore to have chosen to be represented by counsel.We note below that we can see no problem with the quality of his representation.He did not suggest that he had complained to the judge about any difficulties with visitors and did not pursue a review in this regard.The trial was a relatively straightforward one and Mr Greer has not been able to point to any specific prejudice (as against inconvenience) suffered in the preparation of his defence.This ground of appeal must also fail.
[38]	We do, however, note that the right to adequate time and facilities to prepare a defence is one of the fundamental rights contained in the New Zealand Bill of Rights Act 1990.Dr Stevens noted in his submissions that reg 137(2)(a) of the Penal Institutions Regulations 2000 provides that a remand inmate who is preparing his or her defence must be provided with paper and writing materials if he/she requests them.We note too that under reg 137(2)(b) there is an obligation, as far as practicable in the circumstances, to facilitate contact between the inmate and any advisor or assistant helping the inmate prepare the defence.
[39]	We comment that it may be open to doubt in the twenty first century that the provision of writing materials only to an inmate, could in all cases be regarded as adequate facilities with which to prepare that defence, particularly if the inmate plans to conduct his or her own defence.It may therefore be time for the regulations relating to computers in cells to be revisited or at least for prisons to ensure that access to computers is provided in another manner to those who may need them to prepare their defence.

Should the judge have placed a lesser charge before the jury?

[40]

We do not consider that this is a case where a lesser charge should have been left to the jury.Even if the jury entertained a reasonable doubt as to whether the perforated eardrum resulted from the attack rather than from an infection, there was still evidence upon which a properly directed jury could convict.In addition, the defence tactic was to urge the jury to acquit – an “all or nothing” tactic.This was a legitimate tactic in the circumstances and not one with which the judge would have been entitled to interfere.This ground also fails.

Conduct of trial by counsel

[41]

Mr Greer also raised issues about the conduct of the trial by his counsel.We explained to Mr Greer that any complaint about the conduct of counsel would need to be accompanied by a waiver of privilege so that his counsel had an opportunity to set out matters from his point of view.On further discussion it became clear that Mr Greer’s complaint was not that his counsel failed to follow instructions but that, in Mr Greer’s view, the cross-examination (particularly of the complainant and the medical witnesses in relation to the perforated eardrum) was not adequate.The complainant was not cross-examined at length on that topic but this was understandable as it was a medical matter.The two doctors were extensively cross-examined on the topic and the defence position made very clear by the judge in his summing-up – i.e. that the perforated eardrum was a result of an infection and not the alleged attack.Mr Greer’s complaint appears to amount to a complaint that the cross-examination on this topic was not conducted as vigorously as Mr Greer would have done.This is really a complaint about style rather than substance and cannot found an allegation of counsel incompetence.

[42]

We have carefully reviewed the transcript of the evidence at trial and the judge’s summing-up summarising the defence case.We saw nothing in the course of that review to raise any concerns about the quality of Mr Greer’s representation at trial.

Decision

[43]	For the reasons set out above the appeal is dismissed.

Solicitors:

Crown Law Office, Wellington