Green v Police [2016] NZCA 542 (17 November 2016)

Last Updated: 24 November 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA196/2016 [2016] NZCA 542
BETWEEN	GLENN GREEN Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	Randerson, Duffy and Whata JJ
Counsel:	Applicant in Person M J Lillico for Respondent
Judgment: (On the papers)	17 November 2016 at 2.30 pm

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1] On 15 February 2016 the applicant pleaded guilty in the District Court to one charge of criminal harassment. He was sentenced to 12 months imprisonment.^[1] Special release conditions were imposed under s 93 of the Sentencing Act 2002. The applicant then appealed to the High Court against the imposition of the special release conditions. His appeal was dismissed by Keane J on 20 April 2016.^[2]
[2] The applicant now seeks leave to bring a second appeal pursuant to s 253 of the Criminal Procedure Act 2011. Leave for a second appeal must not be given unless the Court is satisfied that the appeal involves a matter of general or public importance or a miscarriage of justice may have occurred, or may occur, unless the appeal is heard.^[3]
[3] The appeal is opposed by the respondent. Miller J has directed that the application be determined separately from the proposed appeal and on the papers.^[4]

The proposed appeal ground

[4] The sole ground of appeal the applicant raised in his application for leave is that a miscarriage of justice had occurred by the imposition of the special conditions. The applicant wishes to argue that the special conditions imposed on him were improperly imported from a sentence for previous offending that had been set aside on appeal. In supporting submissions received some five months after his application for leave, the applicant raised for the first time a complaint that he had assigned counsel who did not appear in the High Court for the purposes of his appeal. He claims he was prejudiced in consequence.

Discussion

[5] We are satisfied there is no issue of general or public importance that would justify the granting of leave for a second appeal. Nor are we persuaded that a miscarriage of justice may have occurred or may occur unless the appeal is heard. The first ground the applicant wishes to advance was canvassed in the High Court. We do not detect any error of approach in Keane J’s decision. In particular, the imposition of the special conditions was entirely appropriate in terms of s 93 of the Sentencing Act, irrespective of his successful appeal in respect of the earlier offending. There remained a long history of offending of this nature which justified the special conditions for all of the purposes set out in s 93(3) including, most importantly, provision for the reasonable concerns of the victim of the offending.
[6] As to the issue of assigned counsel, the applicant has not provided any documentary material to support his late assertion that he had counsel who did not appear. As the respondent submits, there is nothing in the record of proceedings to suggest that any issue in this regard was raised at the time of the appeal. We are confident that if the applicant’s assertion were correct, Keane J would have referred to it in his decision. He did not do so. Rather, the applicant himself filed eight pages of written submissions prior to the hearing of the High Court appeal. The respondent has made inquiries of the prosecutor and confirms there is no reference in those submissions to the applicant being represented or any indication that further submissions from counsel were to be filed. The applicant has considerable experience of the criminal justice system. We are satisfied he was more than capable of making appropriate submissions on appeal and did so. We do not discern any material risk of a miscarriage of justice arising.
[7] The application for leave to bring a second appeal is declined.

Solicitors:
Crown Law Office, Wellington for Respondent

---

^[1] Police v Green [2016] NZDC 3662.

^[2] Green v Police [2016] NZHC 745.

^[3] Criminal Procedure Act 2011, s 253(3).

^[4] Green v R CA196/16, 22 June 2016 [Minute of Miller J].