GREENSMITH v NZ POLICE [2021] NZHC 1001

GREENSMITH v NZ POLICE [2021] NZHC 1001 [6 May 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-000336CRI-2020-404-000389[2021] NZHC 1001BETWEEN MICHAEL NOEL GREENSMITHAppellantAND NEW ZEALAND POLICERespondentHearing: 4 May 2021Appearances: No appearance by AppellantRJ Morrison for RespondentJudgment: 6 May 2021REASONS FOR JUDGMENT OF FITZGERALD JThis judgment was delivered by me on 6 May 2021 at 12.30pmRegistrar/Deputy RegistrarDateSolicitors: Meredith Connell, AucklandTo: M Greensmith, AucklandIntroduction[1] On 27 October 2020, Judge Roberts in the Auckland District Court refused toremit of a number of parking and similar fines owed by Mr Greensmith.1[2] Mr Greensmith appeals this decision. I should note at the outset thatMr Greensmith did not file any submissions on his appeal or appear at the appealhearing. The following is accordingly taken from the written materials that are beforethe Court, and from the judgment under appeal.Factual Background[3] Mr Greensmith states in his notice of appeal that, in 2016, his (now former)landlord arranged to have his car towed and crushed. He says that he was madehomeless as a result and that he purchased a car to live in but began receivinginfringement notices from Police. He produced his own records in the District Courtshowing that he had received around 16 fines between 14 March 2017 and 31 May2017. The total unpaid fines amount to $4,726.2District Court decision[4] In his judgment, Judge Roberts noted that he initially had difficulty isolatingthe issue in the matter. Mr Greensmith appeared to argue that he should not have topay the fines as he had incurred them at a time when he was homeless and forced tolive in his vehicle. The Judge referred to other proceedings relating to problems MrGreensmith has had with his landlord. These were criminal proceedings relating toassaults (including assaults on his landlord).3 That matter had proceeded to trial beforeJudge Powell (as he then was) in the District Court.4 Mr Greensmith subsequentlyappealed to the High Court, where his appeal was dismissed by Downs J.51 District Court v Greensmith [2020] NZDC 25535.2 At [1] and [3].3 See the Memorandum of counsel for the respondent for callover, 9 February 2021 at [3].4 New Zealand Police v Greensmith [2017] NZDC 23507.5 Greensmith v New Zealand Police [2018] NZHC 2262.[5] Judge Roberts observed that Mr Greensmith "appears to be consumed withclaims of illegal and unfair misbehaviour which he lays unashamedly at the doorstepof the female landlord."6 The Judge noted that Mr Greensmith alleged that his landlordhad harassed him and "ruined [his] life" with her actions, which included seizing hispassport and stealing an art collection owned by him valued at $80,000. Noting thatthese considerations were irrelevant and did not impact on Mr Greensmith's liabilityfor the infringement notices, the Judge declined to remit the fines.Submissions[6] As noted, Mr Greensmith did not file any written submissions on the appeal.[7] The respondent filed written submissions in advance of the appeal hearing, inwhich it submits that the appeal should be dismissed for lack of jurisdiction. Counselrefers to s 88AE of the Summary Proceedings Act 1957 (the Act), which gives aDistrict Court Judge the power to remit fines (among other powers). Section 89 of theAct provides that where a Judge acts under s 88AE to substitute fines for sentences ofcommunity work, community detention or home detention, or the defendant isimprisoned pursuant to a warrant of commitment, he or she may appeal through theusual pathway under s 244 of the Criminal Procedure Act 2011. There is no mention,however, of any right to appeal against a refusal to remit fines. The respondent cannotdiscern any other avenue through which Mr Greensmith can challenge the Judge'sdecision in this Court.Discussion[8] Mr Greensmith's appeal was due to be heard by me at 2.15pm on 4 May 2021.However, at 2.15pm, I was advised by the Registrar that at least to that point, therewas no appearance by Mr Greensmith. I accordingly directed the Registrar to wait afurther five minutes to see if Mr Greensmith was simply running late.[9] At 2.20pm, the Registrar advised me that Mr Greensmith had still not appeared.I accordingly had the matter called in Court (which by that time was at approximately6 District Court v Greensmith, above n 1, at [4].2.25pm). The matter was called on the tannoy system, including that the hearing wastaking place in courtroom 13. Mr Greensmith still did not appear. In order to ensurethat Mr Greensmith had an appropriate opportunity to prosecute his appeal, Iadjourned until 2.45pm.7[10] On reconvening at 2.45pm, Mr Greensmith had still not appeared. I wassatisfied that Mr Greensmith was aware of the hearing date and time, givencorrespondence between the Registry and Mr Greensmith on 21 and 22 April 2021,including in which Mr Greensmith said "Yes I still believe I want the 4th May to goahead I have bigger things in my life than this but will wait and see what unfolds inthe said documentation". Mr Greensmith's statement that he still believed he wantedthe 4th of May to go ahead was in response to the Registry's request that he confirmthe hearing date and time of 4 May 2021 at 2.15pm, given that date had been set atcallover on 12 March 2021, at which Mr Greensmith had also not appeared.[11] I was satisfied that Mr Greensmith has had a proper opportunity to pursue hisappeal but had not done so. Indeed, the appeal was originally filed in August 2020,and had been the subject of a number of callovers in the Criminal Appeals List sincethat date.[12] As noted, Mr Greensmith had not filed any substantive written submissions insupport of his appeal. Indeed, in response to a communication from the Registry on20 April 2021, he confirmed that he would not be filing submissions and that he would"to the best of his ability rely on legal reasoning".[13] In the above circumstances, I considered the only appropriate outcome was todismiss Mr Greensmith's appeal. I did so in Court on 4 May 2021. For completeness,it is appropriate that I record that had Mr Greensmith appeared at the hearing of hisappeal, it is highly likely the appeal would have been dismissed in any event. For thereasons given by counsel for the respondent, it does not appear that this Court hasjurisdiction to hear an appeal from Judge Roberts's decision. In theory, a decisionpursuant to s 88AE of the Act may be amendable to an application for judicial review.However, I express no particular view on that. Further, even if this Court did have7 I could not adjourn for any longer as I had another appeal hearing later that afternoon.jurisdiction, I would still need to be persuaded that, on the materials before him, theJudge erred in not remitting the fines. It does not appear that Mr Greensmith had putbefore the Judge any evidence of his financial position or other matters which mighthave been relevant to whether to remit the fines. I accordingly discern no basis in thematerials before the Court to suggest that the Judge erred in his decision. In particular,what appears to be Mr Greensmith's ongoing and lengthy dispute with his formerlandlord is not relevant to whether the fines ought to have been remitted.____________________________Fitzgerald J