R v GREER [2004] NZCA 16 (8 March 2004)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA38/03THE QUEEN

v

ALAN IVO GREER

Hearing: 23 February 2004

Coram: Chambers J Robertson J John Hansen J

Appearances: B S Yeoman for Appellant
E M Thomas for Crown

Judgment: 8 March 2004

JUDGMENT OF THE COURT DELIVERED BY CHAMBERS J

An arrest in Porirua

[1] In the early hours of 3 November 1994, Alan Greer was the passenger in a car being driven in Porirua. Two police officers, Constables Mark Duncan and Tania Lepoama, saw the car and caused it to pull over. They spoke to Mr Greer and the driver. There is no dispute that after a short time had elapsed Mr Greer was then arrested. Following the arrest Constable Duncan attempted to search Mr Greer. Mr Greer resisted. During the ensuing struggle Mr Greer bit the two constables. One bite drew blood. More police arrived. During a continued struggle in the police car, Mr Greer head-butted a third constable, Constable Manatua Faraimo, and at the police station, when his handcuffs were removed, he tried to punch a fourth constable, Constable Peter McManus, albeit without much success.
[2] Mr Greer was charged with assaulting the four constables, with intent to obstruct them in the execution of their duty. He was also charged with threatening to kill Constable McManus. He pleaded not guilty.
[3] There was no dispute at trial that the assaults on the police had occurred. Mr Greer, however, asserted that his actions were justified as being in self-defence. He asserted that his arrest had been unlawful, with the consequence that the police actions in trying to take him into custody were unlawful and he was entitled to use reasonable force to resist them.
[4] The jury found Mr Greer guilty of aggravated assault with respect to Constables Duncan, Lepoama, and Faraimo. He was found guilty of common assault with respect to Constable McManus. Mr Greer was found not guilty of threatening to kill Constable McManus.
[5] Judge Keane sentenced Mr Greer to six months’ imprisonment on the three charges of aggravated assault. He sentenced him to one month’s imprisonment for the common assault on Constable McManus. All sentences were concurrent.
[6] Mr Greer appeals against his convictions. This appeal is a rehearing pursuant to Part 2 of the Crimes (Criminal Appeals) Amendment Act 2001, which accounts for why it is being heard so long after the events in question and the trial. Mr Greer has already served his sentence.

Issues on the appeal

[7] Mr Greer filed his own notice of appeal. He relied on alleged “new evidence”. That alleged new evidence was a “NZ Police Report Form” prepared by Constable Duncan on 3 November 1994. Mr Greer appears to allege that this form had not been discovered by the police prior to his trial. Had it been, Mr Greer submitted, it would provide further support for “the defence version of events” and would have resulted in an acquittal.
[8] The Crown disputes that the form, which we shall refer to in this judgment as “the Prosecution Section form”, was not discovered. Even if it was not, the Crown asserts that it would not in any way have altered the course of the trial or the outcome.
[9] After filing his notice of appeal, Mr Greer was granted legal aid. Mr Yeoman was assigned as counsel. Mr Yeoman, in his submissions, expanded on Mr Greer’s ground of appeal and added, under instructions, a further ground. That was that before trial the essential question of the legality of the arrest should have been tested in some way by a case stated. The proposition is that that may in some way have affected the outcome of the trial.
[10] We shall deal with the issues in turn.

Alleged non-disclosure of the Prosecution Section form

[11] The Prosecution Section form was prepared by Constable Duncan on 3 November 1994, the day of Mr Greer's arrest. The form is addressed to the officer in charge at Porirua. Constable Duncan, in the form, says that he is submitting it for the officer in charge’s information and “for forwarding to Prosecutions Section”. The form gives Constable Duncan’s views on bail and on appropriate bail conditions, if bail is granted. Apparently an “Opposition to Bail Notice” was attached.
[12] There is only one sentence in the brief report to which Mr Greer attaches importance. That sentence reads as follows:

The charges arise from a routine turnover in which GREER, originally arrested for failing to furnish details, resisted then assaulted and threatened Police.

[13] The important point, according to Mr Greer, is the words “originally arrested for failing to furnish details”. At trial Mr Greer asserted that Constable Duncan had said that he was arresting him for that reason. Constable Duncan, while agreeing that Mr Greer had given a false name and address (a fact not in dispute at the trial), nonetheless asserted that he had arrested Mr Greer for pushing him, that is for an assault on him. Mr Greer denied that he had ever pushed Constable Duncan, although he did admit to biting him. Mr Greer, on this appeal, asserts that, had his then counsel had the Prosecution Section form, it would have provided further ammunition in support of the defence version of events, as opposed to Constable Duncan’s.
[14] The first point to be determined on this issue is whether the form is in fact “new evidence” at all. Mr Greer, in his notice of appeal, does not say from where he obtained the form. He simply observes as follows:

Recent access on the 26/11/2002 to the police file has disclosed the New Evidence.

[15] Following the hearing, Mr Yeoman provided further information as to how Mr Greer obtained the Prosecution Section form. It would seem that Mr Greer obtained the form in December 2002 following a request to the police under the Official Information Act 1982. Mr Greer’s former counsel has been asked whether he recalls having had a copy of the Prosecution Section form at the date of the trial. He cannot remember. He no longer has his file.
[16] It is clear, however, that the police had made disclosure to Mr Greer’s former counsel. Given the documents that the police clearly did disclose to Mr Greer’s former counsel, it is highly unlikely that the Prosecution Section form would not have been among the disclosed documents. The probability is, therefore, that while the form may have been “new” to Mr Greer in December 2002, it had been disclosed to his former counsel along with the rest of the police file prior to trial. Counsel simply had not made use of it.
[17] Mr Greer has not proved that the Prosecution Section form was “new evidence” or that there had been inadequate police disclosure prior to trial. In light of that, this ground of appeal must fail.
[18] We go on to consider whether there could be any criticism of Mr Greer’s former counsel in failing to make use of this form when cross-examining Constable Duncan. We conclude that there could be no criticism of him in that regard. There were two other documents in which Constable Duncan had purported to give his reason for arresting Mr Greer. The first was a “Use of Force Report”, otherwise known as a police 258 report. According to Constable Duncan, a police officer is required to file such a report whenever he or she uses more force than would be expected in the normal course of duties. The police 258 report was also dated 3 November 1994. It read in part:

At about 050 [sic] hours on Thursday 3 November 1994 the vehicle in which Greer was travelling was stopped as a routine turnover. Greer was subsequently arrested for giving false details.

[19] Constable Duncan was cross-examined extensively on that document and on the fact that it gave another reason for arrest from that which Constable Duncan had asserted in his examination-in-chief.
[20] Later in the cross-examination Constable Duncan was referred to his notebook, which he said he had written up that day. In that notebook he had stated that Mr Greer was arrested for giving false details. Again, there was significant cross-examination about the notebook entry. Constable Duncan gave an explanation as to why those entries were different from the evidence he was now giving as to the reason for arrest.
[21] We can only speculate as to why Mr Greer’s then counsel did not put the Prosecution Section form as well. It may be that he had not noticed it among the police disclosure documents. The much more likely explanation is that he considered it added nothing to the account in Constable Duncan’s notebook and in the much fuller 258 report. All three documents were created on the same day. The statement in the Prosecution Section report was essentially identical to the statement in the 258 report. Mr Greer’s then counsel had effectively made the point that the ground for arrest given in contemporary documents was different from the ground now being propounded by Constable Duncan in the witness-box. It would not have added anything to that point simply to show that there was a third document prepared on 3 November 1994 to the same effect as the other two documents. Presumably Constable Duncan’s explanation as to why he had written what he did in the various 3 November 1994 documents would have been the same. Nothing further was going to be gained by referring to a third document to the same effect as the other two: that would simply have given the constable an opportunity for the third time to explain why the notebook entry and the same day reports flowing from it were incomplete. Mr Greer’s counsel’s decision not to use the Prosecution Section form as well (if that was indeed the decision) might well have been a sensible trial tactic.
[22] Even if, contrary to our view, the Prosecution Section form had not been disclosed to Mr Greer’s former counsel, its absence would have made no difference to the outcome of the trial, both for the reasons given above – it would have added nothing to the two documents which were disclosed – and for the reasons appearing in the next section of this judgment.
[23] There is nothing in the first point.

Failure to ask for a case stated

[24] Mr Yeoman informed us that he was instructed to advance an argument that the whole circumstances relating to the lawfulness of the arrest should have been referred to a higher court by way of case stated, presumably before the trial.
[25] The first point to note about this is that no such application was made, either before trial or at trial. It is difficult to see how a case stated could have been sought or what it could have achieved.
[26] The basic fact is that, even on Mr Greer’s own account of what happened, he had no defence. The trial judge in fact summed up in a manner which was probably unduly favourable to Mr Greer. The defence in this case was self-defence. For self-defence to be open, the arrest had to have been an unlawful one. The issue at trial appears to have been whether the arrest was unlawful or not. Constable Duncan asserted that, while Mr Greer had given a false name and address when asked, he had arrested him for assaulting him, namely pushing him. Mr Greer asserted, on the other hand, that he had been arrested for giving a false name and address. (He asserted that Constable Duncan’s contemporary documents were consistent with his evidence.)
[27] The difficulty with Mr Greer’s argument is that, even if one accepts his evidence in its entirety and rejects the police officers’ evidence where there is conflict, Mr Greer’s arrest was lawful. Consequently, he was not justified in trying to resist being taken into custody. The reason is this. Mr Greer accepted that the car in which he was travelling was unregistered, and that accordingly it should not have been operated on a road. He also accepted that Constable Duncan believed it to be unregistered. (For present purposes, it does not matter how Constable Duncan ascertained that fact.) Under s168B of the Transport Act 1962, as it stood on 3 November 1994, a constable in uniform (as Constable Duncan was) was empowered to direct any person on any road (as Mr Greer was) to furnish his name and address and to give any other particulars required as to the identity of the “person in charge of any vehicle”, for the purposes of the traffic laws. There is no dispute that Constable Duncan did ask Mr Greer for his name and address and that Mr Greer gave a false name and a false address. According to Constable Duncan, Mr Greer also volunteered that he was the owner of the vehicle, a statement which, if made, appears to have been false. According to Mr Greer, he did not say he was the owner of the vehicle. When asked who the owner was, he avoided the issue, even though he acknowledges that he knew who the owner was, by asserting that “the previous owner was from Wanganui”. He says that he did not want to divulge the true owner’s name, as that person, whom he named in evidence, was, so Mr Greer said, “wanted on warrants” at that time. Accordingly, to use his words, he “side-tracked the issue”.
[28] Even on Mr Greer’s version, therefore, he gave concerning himself a false name and a false address and he failed to answer a question as to the owner’s identity, even though he admits he knew who the owner was. Following that, he was arrested. Mr Greer asserts he was arrested for giving false information. Let us assume, for present purposes, that is true. By giving false information, Mr Greer had committed an offence under s68B(1B) as it stood at the time. Accordingly, under s68B(1C), Constable Duncan was entitled to arrest him without warrant, as he had good cause to suspect that Mr Greer had committed an offence against subs(1B).
[29] It therefore follows that Mr Greer’s intended defence was based on a misunderstanding of the legal position. He was lawfully arrested, even if events unfolded as he asserted they did. He was accordingly not entitled to resist arrest and being taken into custody. His actions in biting Constables Duncan and Lepoama, in head-butting Constable Faraimo, and in punching Constable McManus were not justified.
[30] A case stated therefore would have achieved nothing. In fairness to Mr Yeoman, it should be noted that he advanced this argument under instructions and was not able to identify how a case stated would have advanced matters. Mr Yeoman said everything he possibly could in supporting Mr Greer’s appeal. We are grateful to him for the assistance he gave the court.

Result

[31] We dismiss the appeal.

Solicitors:
Crown Law Office, Wellington