Creser v R [2014] NZCA 604 (10 December 2014)

Last Updated: 18 December 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA413/2014 [2014] NZCA 604
BETWEEN	RICHARD JOHN CRESER Applicant
AND	THE QUEEN Respondent

Hearing:	20 November 2014
Court:	French, Asher and Clifford JJ
Counsel:	Applicant in person J E L Carruthers for Respondent
Judgment:	10 December 2014 at 10.00 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.
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REASONS OF THE COURT

(Given by Clifford J)

[1] Following a Judge-alone trial in the District Court, Mr Creser was found guilty by Judge Tompkins on one count of assault.^[1]
[2] Mr Creser appealed his conviction to the High Court. Justice Mallon dismissed the appeal.^[2] Mr Creser now applies for leave to bring a second appeal against his conviction in this Court.
[3] Second appeals against conviction are now provided for by s 237 of the Criminal Procedure Act 2011 in the following terms:

237 Right of appeal against determination of first appeal court

(1) A convicted person may, with the leave of the second appeal court, appeal to that court against the determination of the person's first appeal under this subpart.

(2) The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that—

(a) the appeal involves a matter of general or public importance; or

(b) a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

[4] This Court has considered what amounts to an issue of general or public importance in McAllister v R.^[3] The Court said:^[4]

An illustration of a matter of general or public importance is one raising an important question of law having broad application beyond the circumstances of the particular case.^[5] By contrast, there are numerous illustrations in the leave decisions of the Supreme Court where leave has been declined on the basis that the application for leave raises issues in the nature of a “factual assessment that is specific to the circumstances of the case”^[6] or the application of “well-established principles to a particular fact situation”.^[7]

[5] As to the meaning of “miscarriage of justice”, we are aided by the definition in s 232(4) of the Criminal Procedure Act:

(4) In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a) has created a real risk that the outcome of the trial was affected; or

(b) has resulted in an unfair trial or a trial that was a nullity.

[6] That definition applies specifically to s 232(2), and so is not directly engaged by s 237. However, as the Court noted in McAllister, the definition is likely to provide relevant guidance in cases involving applications for leave to appeal against conviction.^[8]
[7] Mr Creser’s conviction arose in the following circumstances, as described by Mallon J:

[2] The incident giving rise to the charge occurred outside the Court of Appeal on 24 September 2013. The assault was said to have occurred after Mr Creser had served some documents on the Registrar of the Court of Appeal (Ms O’Brien) by putting them in her handbag. The issue was whether Mr Creser had grabbed Ms O’Brien by the arm as she tried to enter the Court of Appeal building at the side entrance on Aitken Street. Mr Creser denied doing so and said that it was Ms O’Brien that assaulted him.

[8] Mr Creser, appearing for himself in support of his application for leave, identified what he said were evidential discrepancies that called into question Judge Tompkins’ assessment, upheld by Mallon J, that he had assaulted Ms O’Brien as alleged. As he had at his trial in the District Court, and again in his appeal in the High Court, Mr Creser argued that the evidence properly interpreted supported his narrative and that accordingly leave should be granted.
[9] As can be seen, Mr Creser is challenging a factual assessment that is specific to the circumstances of his case. We are satisfied that no matter of general or public importance is raised by this application. We are also satisfied that there has been no error that has created a miscarriage of justice. Justice Mallon’s comprehensive and careful analysis of the evidence shows that Ms O’Brien’s evidence, together with that of the supporting Crown witnesses, did provide the basis for Mr Creser’s conviction. As Mallon J further found, the Judge was entitled to accept the Crown evidence over that proffered by Mr Creser, and no miscarriage of justice has been demonstrated.
[10] Mr Creser’s application for leave to bring a second appeal is therefore declined.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Police v Creser DC Porirua CRI-2013-091-3082, 24 February 2014.

^[2] Creser v Police [2014] NZHC 1524.

^[3] McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.

^[4] At [36].

^[5] See, for example, L v R [2005] NZSC 69 relating to the standard required for attempt.

^[6] R v Thompson [2005] NZSC 58, [2005] 3 NZLR 588 at [6]; and see, for example, Lawler v R [2013] NZSC 92 at [21]; and Gash v R [2013] NZSC 106 at [4].

^[7] Balfour v R [2013] NZSC 149 at [2].

^[8] At [38].