Greensmith v Police [2018] NZHC 2262 (30 August 2018)

Last Updated: 4 September 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000012 [2018] NZHC 2262

BETWEEN	MICHAEL NOEL GREENSMITH Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	27 August 2018
Appearances:	Appellant in person TR Bellingham for Respondent
Judgment:	30 August 2018

JUDGMENT OF DOWNS J

This judgment was delivered by me on Thursday, 30 August 2018 at 1 pm.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Auckland. Copy to: Appellant.

GREENSMITH v POLICE [2018] NZHC 2262 [30 August 2018]

The appeal

[1] Mr Michael Greensmith was found guilty of two charges of assault and one of resisting a constable in the exercise of duty. The core facts can be stated quickly, and by adopting the sentencing observations of Judge L G Powell, as his Honour then was:¹

The first of the assault charges arose on the evening of 25 July 2016 when Mr Greensmith came out of his flat that evening and threw a bucket of water over his landlady, Nancy Fong-Anae, as she was walking up a set of stairs located outside Mr Greensmith’s flat up to her own flat, which was directly above Mr Greensmith’s.

The remaining charges arose the next morning. Mr Greensmith threw a further bucket of water over Ms Fong-Anae as she walked down her stairway. After the police arrived to investigate, Mr Greensmith was arrested by Constable Kalra but Mr Greensmith prevented Constable Kalra taking him into custody by closing the door of his flat against Constable Kalra.

[2] Mr Greensmith appeals conviction and sentence. Mr Greensmith is self-represented albeit, he contends, wrongly.

[3] Mr Greensmith filed a 25-page document, to which he spoke briefly. The document is not really a submission. Rather, it is a loose chronology encompassing the trial, events before and after, with extracts from Anatole France and other idiosyncrasies. More instructive is Mr Greensmith’s notice of appeal. It alleges justice miscarried because:

(a) Mr Greensmith was not permitted trial representation.

(b) Mr Greensmith was excluded from trial “during portions of the evidence”.

(c) The Police officers who testified were not in fact the officers who attended the incident.

(d) A finding of guilt is “not supported by the evidence or law”.

¹ Police v Greensmith [2017] NZDC 29631 at [2]–[3].

[4] This judgment assumes each comprises a ground of conviction appeal.

Wrongful absence of trial representation?

[5] Mr Greensmith contends he was wrongly tried without a lawyer. The Supreme Court has held when this occurs, there is a presumption of a miscarriage of justice.² However, that Court has also held is not open to a defendant to assert his or her right to counsel but then, by conduct, repudiate that right’s exercise; or by similar conduct, create a situation “in which, on a proper balancing of the various interests, further delay in the holding of the trial is not to be tolerated”.³ Consequently, an appellate Court “must make a determination concerning the circumstances in which the [defendant] came to be tried without a lawyer.”⁴ If the defendant was wrongly tried without a lawyer, the prosecution must satisfy the Court the trial was fair notwithstanding the absence of representation.⁵ Otherwise, no such presumption is engaged. Hence the chronology below.

[6] The charges were laid on 1 August 2016. Counsel for the Public Defence Service must have been assigned because on 8 September 2016, the hearing sheet contains this observation: “PDS withdraws”. Unfortunately, the circumstances of this withdrawal are not documented. However, it is clear Mr Paul Heaslip was then assigned by the Legal Services Agency.

[7] On 1 December 2016, Mr Heaslip too sought permission to withdraw. Permission was granted. The hearing sheet records: “Defendant cannot/will not accept advice [the Tenancy Tribunal] proceedings are irrelevant to criminal proceedings before a District Court Judge”. The hearing sheet also records: “LSA prepared to re-assign”. Re-assignment came in the person of Mr Samuel Walker.

[8] Trial was fixed for 27 January 2017. On this date, Judge C M Ryan adjourned the trial at Mr Walker’s request.

² Condon v R [2006] NZSC 62, [2007] 1 NZLR 300.

³ At [80].

⁴ At [81].

⁵ At [81].

[9] The Judge’s Minute of this date records Mr Walker had also sought permission to withdraw from another Judge, but permission had been declined. Judge Ryan noted there “have been some issues between [Mr Greensmith] and Mr Walker, such that it might be easier for both of them if Mr Walker was appointed amicus curiae in this case”. Consequently, the Judge granted Mr Walker permission to withdraw, but also directed he assist Mr Greensmith as amicus curiae. Brief interpolation is necessary: her Honour’s decision was pre-Fahey,⁶ but Mr Walker’s role entirely consistent with that decision.

[10] Trial began on 4 May 2017—and took three days: 4, 5 and 12 May 2017. When it began, Mr Greensmith sought an adjournment on the basis Mr Tudor Clee was prepared to represent him, but then unavailable. Judge Powell dismissed the application for these reasons:⁷

[7] ...

(a) The trial, set down for two days of hearing, was otherwise ready to proceed in accordance with Judge Ryan’s minute of 27 January 2017. Although self-represented, Mr Greensmith had the benefit of the assistance of Mr Walker who had prepared for the cross- examination of the Police witnesses, including the complainant, Ms Fong-Anae, after consultation with Mr Greensmith, as directed by Judge Ryan;

(b) There were a large number of witnesses standing by ready for the trial to proceed. These included at least 6 in attendance (including a Police officer) who had been summonsed by Mr Greensmith to give evidence on his behalf;

(c) Mr Clee had not taken any steps to seek an adjournment of the trial; and

(d) Having regard to the overall circumstances of the case, including its protracted procedural history to that point, it was appropriate for proceed as scheduled.

[8] Given these matters, I was satisfied that there was no unfairness to Mr Greensmith in proceeding with the trial.

[11] As will be apparent, Mr Greensmith had three lawyers before trial, all through legal aid. All withdrew. While more is known about Mr Heaslip’s withdrawal than the others’, the precise circumstances in which each counsel withdrew is unclear. That

⁶ Fahey v R [2017] NZCA 596, [2018] 2 NZLR 392.

⁷ Police v Greensmith [2017] NZDC 23507 at [7](a)–(d) and [8].

said, it is reasonable to infer Mr Greensmith’s instructions compromised his legal advisers’ ability to represent him, such that each felt obliged to withdraw.

[12] Later events support this conclusion. Mr Greensmith had two lawyers in this Court, both appointed on legal aid. Both promptly withdrew. Ms Susan Gray was appointed on 8 March 2018. By 20 April 2018, she was allowed to withdraw. On 9 April 2018—and hence before Ms Gray had been given permission— Mr John Mather was appointed. By 17 August 2018, he too was allowed to withdraw. Mr Mather filed a memorandum of counsel explaining Mr Greensmith peremptorily left his office when his submissions in relation to the appeal were due the next day. Mr Mather had already obtained one extension for filing these, and this against a backdrop of adjournments because of representation difficulties.

[13] It follows Judge Powell was entitled to dismiss the adjournment application, on the basis further delay was incommensurate with the interests of justice. It also follows no presumption arises of a miscarriage of justice. But, even if I am wrong about both, I am satisfied the prosecution has demonstrated the trial was fair.

[14] Mr Walker took a very active role in the case, consistent with that of defence counsel. He cross-examined all prosecution witnesses; adduced the testimony of all five defence witnesses, including Mr Greensmith; applied for Mr Greensmith’s discharge under s 147 of the Criminal Procedure Act 2011; and argued, including in writing, the charges had not been proved beyond reasonable doubt. It is clear from the transcript Mr Walker was well prepared. And as observed earlier, Mr Walker’s role was entirely consistent with Fahey.

Exclusion from the courtroom

[15] Mr Greensmith contends he was excluded from the courtroom on several occasions, during which trial continued. Mr Greensmith says he does not know why this happened.

[16] The transcript reveals two instances, both in relation to defence witnesses: Mr Gregory Callinan and Constable Ben Samuels. It is not clear why. No apparent record was made. Counsel for the Police observed it might have been because
Mr Greensmith had not then given evidence; for some reason, he was called later in the defence case.

[17] It is elementary a defendant is entitled to be present for their entire trial unless “the defendant interrupts the hearing to such an extent that it is impractical to continue in his or her presence”.⁸ There is no suggestion Mr Greensmith did so. As observed, it is not clear why Mr Greensmith was required to leave the court. But even if it was because he had not yet given evidence, it is far from clear that would provide justification for what occurred. The Criminal Procedure Act 2011 does not provide for such exclusion, and no case was cited to support it. The apparent absence of a record is also troubling.

[18] This said, I am satisfied the irregularity did not create a real risk the outcome of the trial was affected or otherwise produce an unfair trial.⁹

[19] First, each witness’s evidence was brief. Mr Callinan testified between
4.50 pm and 5.25 pm on 5 May 2017. Constable Samuels testified between 10.09 am and 10.30 am on 12 May 2017. So, Mr Greensmith was excluded for not more than 55 minutes of his three-day trial.

[20] Second, each witness’s testimony had only marginal importance. Mr Cullinan was another tenant of Ms Fong-Anae’s, but did not see or hear either incident. His evidence was contextual: Mr Cullinan spoke of the “totally dysfunctional” relationship between Mr Greensmith and Ms Fong-Anae. Constable Samuels said he went to the address once, and had met Mr Greensmith. But, Constable Samuels was not involved in arresting Mr Greensmith or called to the scene in relation to the alleged assaults.

[21] Third, Mr Walker remained in court to protect Mr Greensmith’s interests. Though amicus in name, Mr Walker acted as if defence counsel; see [14].

⁸ Criminal Procedure Act 2011, s 117(2).

⁹ Section 232(4).

[22] Fourth, Mr Greensmith gave extensive evidence in support of his case “he was the victim of elaborate conspiracy ... to terminate his tenancy”.¹⁰ It follows Mr Greensmith presented his defence after seeing the entire prosecution case unfold.

The wrong police personnel?

[23] Mr Greensmith contends the two officers who gave evidence for the prosecution in relation to his arrest—Constables Deepak Kalra and Olivia Holt—were not the two officers who dealt with him. It follows their entire testimony is false.

[24] Mr Greensmith did not put this proposition to either witness. And, his contention is unsupported by fresh evidence. This ground fails.

A finding of guilt not supported by evidence or law?

[25] I interpret this ground as a contention the Judge erred in his assessment of the evidence to such an extent a miscarriage of justice has occurred—the limb available to a defendant in this situation.¹¹

[26] As observed, Mr Greensmith’s defence was that he was the victim of an elaborate conspiracy to evict him. The Judge analysed this contention, but rejected it.
His Honour gave extensive reasons for doing so:¹²

[20] Despite that, I do not consider this evidence supports the type of conspiracy posited by Mr Greensmith. First, there was considerable evidence and in particular from a former tenant, Greg Callinan, and William Woodman, Ms Fong-Anae’s property manager, that while Ms Mason appeared somewhat “disturbed”, no evidence has been produced that in any way suggests that Ms Mason was prepared to make false complaints against Mr Greensmith. Likewise I have had the benefit of hearing from Ms Hill and I am satisfied that notwithstanding the potential threat to her piano lessons, Ms Fong-Anae had always been extremely supportive of the piano lessons and Ms Hill had neither been asked to nor would have made false complaints against Mr Greensmith. Most importantly for the purposes of Mr Greensmith’s application it is clear that the Police, while investigating the complaints made by Ms Fong-Anae, Ms Mason and Ms Hill, reached the conclusion in each case that no further action was necessary, and by no measure could the Police response at any point be described as harassment or otherwise provide any evidence suggesting they were part of any conspiracy against Mr Greensmith.

¹⁰ Police v Greensmith, above n 7, at [4].

¹¹ Criminal Procedure Act, s 232(2)(b).

¹² Police v Greensmith, above n 7, at [20]–[24].

[21] There is also little or no evidence to support the remaining allegations made by Mr Greensmith. Neither the records of the Tenancy Tribunal produced in Court, nor the evidence of Hugh Anderson, a Registrar at the Tenancy Tribunal present at the Tenancy Tribunal hearing on 10 June 2016 provided any support for any allegation of sexual harassment being raised by [Ms] Fong-Anae at that hearing, or indeed that there was anything else at all untoward about that hearing.

[22] Similarly, while the evidence is clear that there were issues with the Harbour View Road property generally, there is no evidence that these were directed in particular at Mr Greensmith but rather:

(a) It is clear that a load of mulch was dropped at the beginning of July 2016 at the direction of Ms Fong-Anae. The evidence is also clear that over a relatively short space of time, it was applied to the garden. In the interim, this led to some restriction in access to Mr Greensmith’s flat, although some sort of pathway was provided. However, the placement of the mulch over the right hand access to the house (as viewed from the road) affected Ms Fong-Anae as much as it did Mr Greensmith given that both their flats were accessed from this right hand path. Overall, I am satisfied access remained available via the right hand path to both Mr Greensmith and Ms Fong-Anae’s flats, a point subsequently confirmed by both Mr Woodman and Constables Kalra and Holt who used the right hand access when they attended the premises on 26 July 2016.

(b) Likewise, Mr Woodman confirmed that there were substantial sewage issues at the Harbour View Road property. Mr Woodman confirmed that those issues, which led to blow backs of sewage experienced not only by Mr Greensmith but also Mr Callinan in the other lower flat, took a relatively long time to address as the result of blockages caused by tree roots out near the roadside, but this was in no way directed at Mr Greensmith.

(c) Mr Woodman also gave evidence which I accept, that the planter box hit by Mr Greensmith had in fact been moved to its current location prior to Mr Greensmith’s arrival at Harbour View Road. As a result the fact that Mr Greensmith subsequently backed into the planter box does not provide any evidence suggestive of any conspiracy.

[23] Finally, I agree with Ms Blackmore that matters subsequent to the events of 25 and 26 July [2016] cannot be relevant to any argument about whether Ms Fong-Anae’s complaints or indeed Constable Kalra’s account were credible or whether the prosecution amounted to some kind of abuse of process.

[24] Instead, stepping back I am satisfied that there is no evidence of any form of organised conspiracy against Mr Greensmith so as to conclude Mr Greensmith has no case to answer, or otherwise provide a basis for dismissing the charges against him pursuant to s 147 of the Criminal Procedure Act 2011. It is now appropriate to now consider each of the charges on its merits.
[27] The Judge then carefully analysed the prosecution’s evidence. In doing so, the Judge again examined Mr Greensmith’s contention the charges were a product of conspiracy. The Judge rejected this claim as “inherently implausible”:¹³

• [66] More broadly, I find the suggestion that both Ms Fong-Anae and Ms Hill made up their respective accounts to be highly implausible. While Ms Fong-Anae’s 111 call in respect of the first alleged assault on 25 July 2016 was unusual, the circumstances she found herself in were also unusual and it is clear from listening to the 111 call that Ms Fong-Anae really did not know what had occurred or what had been thrown over her and her insistence on standing outside until Police had arrived, while unwise was also understandable. Likewise, having considered the wider evidence provided with regard to the relationship between Ms Fong-Anae and Mr Greensmith, I find it extremely unlikely that had Ms Fong-Anae lied about the assault as alleged by Mr Greensmith in order to have him evicted. The evidence of Mr Woodman in particular, as well as the evidence of Mr Andersen, made it quite clear that Ms Fong-Anae was a very experienced landlady. The stay in the eviction proceedings ordered by the Tenancy Tribunal on 10 June 2016 was not a substantive obstacle, and indeed the order of the Tenancy Tribunal of 10 June 2016 simply recorded that the “90 day notice of termination is stayed until the hearing of the matter can be completed”. In real terms it simply meant that the case was adjourned to enable Ms Fong-Anae to get her case properly presented. This in fact took place and following a further hearing on 13 October 2016 the stay was lifted and Ms Fong-Anae granted possession of Mr Greensmith’s flat, a decision subsequently appealed by Mr Greensmith.

[67] I likewise found Ms Hill’s account of Mr Greensmith telling her not to help Ms Fong-Anae to be entirely consistent with Mr Greensmith’s clear animosity towards Ms Fong-Anae and his clear exception taken to the mulch deposited on the driveway. Furthermore, having had the opportunity to observe Ms Hill give evidence, I found her to be a credible witness in respect of the second alleged assault on 26 July 2016.

[68] Finally, with regard to the credibility of Ms Fong-Anae and Ms Hill I consider it would have been inherently implausible for them to have made up the particular allegations, which is not only unusual and specific, but describes a petty rather than substantively serious allegation.

[69] Against the totality of this evidence I ultimately find Mr Greensmith’s allegations that everyone was lying about what had taken place to be inherently implausible. I similarly conclude that his reaction to the inquiries made by the Constables can only be described as extremely defensive, and this would not have been a natural reaction had Mr Greensmith been truly unaware of the purpose of their attendance at Harbour View Road.

[28] These conclusions were available, and for the reasons the Judge gave.

¹³ Police v Greensmith, above n 7, at [66]–[69].

[29] Mr Greensmith submitted Ms Fong-Anae is habitually untruthful, and judgments of the Tenancy Tribunal prove as much. However, nothing produced from that Tribunal supports this contention, a conclusion Judge Powell also reached.¹⁴

Sentence appeal

[30] The Judge declined to discharge Mr Greensmith without conviction: while the charges were “at the lower end of the spectrum”, they were “not trivial”.¹⁵ The Judge adopted settled methodology in identifying the consequences of conviction, including those in relation to renewal of Mr Greensmith’s real estate licence, and then assessing these against the gravity of the offending. The Judge concluded gross disproportionality was not engaged:¹⁶

It follows that I am satisfied that all matters raised by Mr Withers on behalf of Mr Greensmith, other than general consequences, are either best left to appropriate authorities or can be addressed, as in the case of the travel to Ireland, by alternative travel arrangements. On the contrary, given the nature of Mr Greensmith’s offending; the level of premeditation, the vulnerability of the victim and the lack of any acknowledgement of the offending or remorse, and noting that a key part of the sentencing process is that an offender be held accountable, it follows that I do not consider that the consequences of conviction are out of all proportion to the gravity of the offending in this case. Accordingly, the application for a s 106 discharge without conviction is dismissed.

[31] Mr Greensmith advanced no argument in relation to sentence, either in writing or at the hearing of the appeal. It is sufficient to observe this outcome was available for the reasons given by the Judge.

An adjournment?

[32] At the beginning of the hearing, Mr Greensmith sought an adjournment of the appeal. He contended he had been denied representation in this Court and below. This argument is addressed at [5]–[14]. Mr Greensmith observed he would lodge an appeal to the Court of Appeal irrespective of my decision. That is a matter for him.

¹⁴ Police v Greensmith, above n 7, at [21].

¹⁵ Police v Greensmith, above n 1, at [7].

¹⁶ At [19].

Result

[33] The appeal is dismissed.

...................................

Downs J