Greer v R [2013] NZCA 26 (21 February 2013)

Last Updated: 27 February 2013

IN THE COURT OF APPEAL OF NEW ZEALAND

CA726/2012 [2013] NZCA 26

BETWEEN ALAN IVO GREER Appellant

AND THE QUEEN Respondent

Hearing: 18 February 2013

Court: Arnold, Simon France and Dobson JJ

Counsel: Appellant in person P D Marshall for respondent

Judgment: 21 February 2013 at 4 pm

JUDGMENT OF THE COURT

The appeal is dismissed for want of jurisdiction.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dobson J)

[1] On 8 October 2012, Mr Greer’s second application to the High Court to be granted bail on the charges he presently faces was dismissed by Kós J.[1] On 7 November 2012, Mr Greer filed a notice of appeal in this Court in relation to the bail decision. The form on which he completed his notice of appeal was dated by him 5 November 2012.
[2] Section 67(1) of the Bail Act 2000 (the Act) provides that a defendant wishing to appeal from a decision of the High Court relating to bail must file notice of the defendant’s intention to appeal with the Registrar of the Court of Appeal within 10 days after the date of the decision to be appealed against. In the present case, the Crown took the point that the notice of appeal had been filed out of time, and that accordingly the Court did not have jurisdiction to entertain the appeal.
[3] Notwithstanding that the absence of jurisdiction is relatively settled, an oral hearing was convened at which we heard argument from Mr Greer, both as to why the Court had jurisdiction to hear his appeal, and as to the merits of his appeal from the second refusal by the High Court to grant him bail.

Jurisdiction

[4] On two occasions, this Court (in one case comprised of a bench of permanent Judges of the Court) has held that s 67(1) of the Act means what it says, and that the Court does not have jurisdiction to extend time within which an appeal from a High Court bail decision can be filed.[2]
[5] Mr Greer argued that the Court should assume jurisdiction because the form that he completed, which is a form prescribed by the Court of Appeal (Criminal) Rules 2001, includes provision for stating, if the appeal or application is out of time, the reasons why the Court should nevertheless consider the appeal. That point was drawn to this Court’s attention in Fatu, and rejected on the basis that if jurisdiction does not otherwise exist, it cannot be created by inference from a form prescribed in rules made pursuant to the Act. We agree with that view. The scope of the Court’s jurisdiction is prescribed by the Act, and the time limit is clear. The provision cannot be the subject of an implied amendment because of the terms of a form appearing in Court rules. Although it is desirable that the form be amended so as not to suggest the prospect of appeals under s 66 when the prospective appellant is out of time, Mr Greer cannot avail himself of the contrary implication arising from the terms of the form to assert jurisdiction where the statute does not provide it.

The merits of the purported appeal

[6] Because of the terms of a minute issued previously as to the form of the oral hearing, we also heard argument on the merits of Mr Greer’s appeal. For completeness, we briefly summarise reasons why we would not, in any event, have been minded to uphold the appeal.
[7] Mr Greer faces charges of sexual violation by rape, presenting a firearm, three counts of threatening to kill, two counts of possession of a knife as an offensive weapon, aggravated burglary and two counts of supply of methamphetamine. Because he has previous convictions for drug offending, the inclusion of the drug charges amongst those he is presently facing triggers s 16 of the Act so bail could only be granted by a High Court Judge.
[8] In addition, Mr Greer’s history of 151 previous convictions, including 55 for offending whilst on bail, triggers the restrictions on a grant of bail in ss 10 and 12 of the Act.
[9] Mr Greer first applied for bail in relation to his remand on the present charges on 28 August 2012. On that occasion, Miller J considered the application, principally by reference to the criteria in s 12 requiring Mr Greer to persuade the Court, on the balance of probabilities, that he would not, whilst on bail, commit any offence with violence or burglary or any other serious property offence. The primary considerations were the need to protect the safety of the public and, where appropriate, that of the victim or victims. After reviewing the nature of the Crown allegations on the present charges and the history of previous convictions, Miller J concluded that “Mr Greer has failed by a very wide margin to persuade me that bail ought to be granted”.[3]
[10] Mr Greer re-applied for bail towards the end of September 2012 and a further hearing occurred on 5 October 2012. Kós J’s judgment declining bail was issued on 8 October 2012. In that argument, Mr Greer appears to have focused on the weakness of the Crown case against him, in light of further police disclosure that was continuing, and implicitly was more comprehensive than when the initial bail application was argued before Miller J. Kós J was unconvinced.
[11] The Judge found that none of Mr Greer’s arguments represented any material change in the overall strength of the case against him, which was not one that could be condemned summarily as weak. Mr Greer did not discharge the onus of persuading Kós J that bail should be granted because it was more likely than not that, whilst on bail, he would not commit a further serious offence of the type referred to in ss 10 and 12 of the Act. Even if the onus under those sections had been discharged, consideration of factors under s 8 of the Act would necessitate continued detention for the safety of both witnesses and the community. To the extent that Mr Greer had grounds for concern as to the compliance by the police with their disclosure obligations, those were matters he ought to deal with by way of applications to the trial Court.
[12] Before us, Mr Greer placed most emphasis on his perception that the Crown case was weak, and that the police were in breach of their disclosure obligations. He instanced the expectation that initial disclosure by the police should have included a summary of facts on which the police relied to demonstrate how they would make out the elements of the charges.[4] He contended that there has still been no summary of facts presented to him in this case.
[13] The extent of any non-compliance by the prosecution with disclosure obligations, and the consequences of any deficiencies made out, are a matter for the trial Court, and cannot be relevant to the grounds for granting bail.
[14] However, we note that discharge of the disclosure obligations is a matter of substance, rather than the form in which itemised obligations are discharged in each case. Here, the relatively full terms of the police opposition to bail contain what in other circumstances might well have been made available to the defendant as a summary of facts. We are not persuaded that Mr Greer is hampered in the preparation of his defence by the absence of a summary of facts in a form that is labelled as such.
[15] So, too, with Mr Greer’s assessment of the relative weakness of the police case. He may ultimately be vindicated, but these claims cannot deflect attention from the s 12 considerations. Mr Greer did not criticise the assessments by either Kós J or Miller J on those points, and they remain strongly against him.
[16] For these reasons, had the Court had jurisdiction, we would not have been inclined to allow the appeal.

Non-compliant documents

[17] On 8 February 2013, Mr Greer filed a further document in typewritten script described as “additional submissions”. That document, instead of citing The Queen as respondent, specified “Na Zi POLICE” as “Persecutors”. The document referred to representatives of Crown Law (misdescribed throughout as “Clown Law”) as “parasites” and “maggots”. The document used obscenities in the course of submissions (“why else fuck your victim around ...” and “fucked up versions of the rape claim”).
[18] Such content is entirely inappropriate and cannot assist in any constructive and appropriate consideration of Mr Greer’s proceedings. We will direct the Registry to vet any documents subsequently filed by Mr Greer, with a view to rejecting documents that contain abusive or contemptuous assertions. The 8 February 2013 document should not have been accepted for filing.

Outcome

[19] The Court does not have jurisdiction to entertain the appeal and it is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

---

[1] Greer v Police [2012] NZHC 2606.
[2] R v Wong [2009] NZCA 93; R v Fatu [2009] NZCA 161.
[3] Greer v Police [2012] NZHC 2203 at [13].
[4] As required by s 12(1)(a) of the Criminal Disclosure Act 2008.