Glass v R [2015] NZCA 497 (22 October 2015)

Last Updated: 29 October 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA166/2015 [2015] NZCA 497
BETWEEN	COHEN JAMES GLASS Applicant
AND	THE QUEEN Respondent

Court:	Ellen France P, Heath and Collins JJ
Counsel:	Applicant in Person M L Wong for Respondent
Judgment: (On the papers)	22 October 2015 at 10 am

JUDGMENT OF THE COURT

Application for leave to appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

[1] We are dismissing Mr Glass’s application for leave to appeal to this Court from a judgment of Brown J, delivered in the High Court at Invercargill on 6 March 2015.^[1]

[2] In his decision Brown J dismissed Mr Glass’s appeal from a decision of Judge Phillips, in which he convicted Mr Glass of a charge of assaulting Mr Orpin at Queenstown on 10 November 2013.^[2]
[3] We are dismissing Mr Glass’s application for leave to appeal because his proposed appeal does not engage any matter of general or public importance. Nor has Mr Glass demonstrated a miscarriage of justice may occur unless he is granted leave to pursue a second appeal.

Background

[4] On the evening of 10 November 2013, Mr Orpin was working as a security officer at the Barmuda Bar in Queenstown. Mr Glass was drinking at the bar. He was told to leave the bar by Mr Orpin, who escorted him to the door. As he left the bar Mr Glass turned to Mr Orpin, made a provocative gesture and punched him several times. Part of the offending was recorded on a CCTV camera. We have viewed the video footage of the events that were recorded.
[5] At his trial, Mr Glass argued that he had acted in self-defence. In addition, he suggested the CCTV footage had been modified, or alternatively, Mr Orpin’s actions were not recorded because he positioned himself in a “blind spot” and was therefore able to avoid being seen by the CCTV camera. Mr Glass has also claimed the entire event was orchestrated by others as part of a campaign to ruin him.
[6] Judge Phillips considered the evidence, including the testimony of Mr Orpin and Mr Glass, whom he described as being an unpersuasive witness.^[3] Judge Phillips preferred the evidence of Mr Orpin, as it was supported by the CCTV footage.^[4]
[7] When dismissing Mr Glass’s appeal, Brown J also examined the CCTV footage and reached the conclusion Mr Glass had not been acting in self-defence.^[5]

Jurisdiction

[8] Second appeals are governed by s 237 of the Criminal Procedure Act 2011 (the Act). The relevant provisions state:

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 ... 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.

Proposed grounds of appeal

[9] Mr Glass has itemised a large number of concerns he has with his conviction. It is not necessary for us to itemise each of his proposed grounds of appeal. Suffice to say that in essence, Mr Glass is grossly dissatisfied with both the factual findings made by Judge Phillips and on appeal the confirmation by Brown J of those factual findings.

Analysis

[10] The threshold for granting leave for a second appeal is clear.^[6] A proposed appeal may give rise to an issue of general or public importance where, for example, it involves a matter of general principle in the administration of the criminal law or has broad application beyond the circumstances of the individual case.^[7] There may be a miscarriage of justice if there is an argument reasonably available that the courts below made material errors.^[8]
[11] We are satisfied that neither limb in s 237 of the Act is engaged in this case. Mr Glass has not identified any matter of general or public importance.
[12] Nor has Mr Glass demonstrated that there may be a risk of a miscarriage of justice if he is denied the opportunity to pursue a second appeal. Mr Glass has neither identified a basis upon which the evidence of Mr Orpin should have been rejected nor has he undermined in any way the validity of the CCTV footage.
[13] In our assessment, Brown J correctly concluded there was no material error in the trial Judge’s assessment of the evidence that amounts to a miscarriage of justice.
[14] Mr Glass’s proposed grounds have no realistic prospect of success. For this reason his application for leave to appeal must be dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Glass v Police [2015] NZHC 387.

^[2] Police v Glass DC Queenstown CRI-2013-59-866, 18 November 2014.

^[3] At [6].

^[4] At [11].

^[5] Glass v Police, above n 1, at [24].

^[6] McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764; Hohipa v R [2015] NZCA 73 at [37][39]

^[7] McAllister v R, above n 6, at [36].

^[8] At [37]–[38].