GREENSMITH v NEW ZEALAND POLICE [2022] NZCA 190

GREENSMITH v NEW ZEALAND POLICE [2022] NZCA 190 [18 May 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA199/2021[2022] NZCA 190BETWEEN MICHAEL NOEL GREENSMITHApplicantAND NEW ZEALAND POLICERespondentCourt: Courtney, Thomas and Duffy JJCounsel: Applicant in PersonT R Simpson for RespondentJudgment:(On the papers)18 May 2022 at 10 amJUDGMENT OF THE COURTA The application for an extension of time for leave to appeal is granted.B The application for leave to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)Introduction[1] In 2017, following a three-day trial in the District Court at Auckland,Mr Greensmith was found guilty of two charges of assault and one of resisting aconstable in the exercise of their duty.1 Judge Powell declined his application for adischarge without conviction.2 Mr Greensmith was fined $200 on each of the assault1 Police v Greensmith [2017] NZDC 23507 [Trial judgment].2 Police v Greensmith [2017] NZDC 29631 [Discharge and Sentencing judgment].charges, and ordered to pay reparation to the complainant totalling $500 and courtcosts. On the charge of resisting a police constable Mr Greensmith was fined $150and ordered to pay court costs.3[2] The District Court Judge described the offending and Mr Greensmith's defencein the following terms:[2] The first of the assault charges arose on the evening of 25 July 2016when Mr Greensmith came out of his flat at Harbour View Road, PointChevalier, 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 upto her own flat, directly above Mr Greensmith's.[3] The remaining charges arose the next day. On the morning of 26 July2016, Mr Greensmith threw a further bucket of water over Ms Fong-Anaeas she walked down her stairway. After the Police arrived to investigate, Ms Fong-Anae identified Mr Greensmith [and] he was arrested by ConstableKalra but Mr Greensmith prevented Constable Kalra [from] taking him intocustody by closing the door of his flat against Constable Kalra.[4] Mr Greensmith has denied assaulting Ms Fong-Anae on eitheroccasion and/or that he resisted Constable Kalra. Instead Mr Greensmithcontends that none of the evidence relied on by the prosecution is credible.Mr Greensmith has submitted that he was the victim of an elaborateconspiracy, orchestrated by Ms Fong-Anae, in which not only Ms Fong-Anae,but other tenants at Harbour View Road and the Police participated in order toassist Ms Fong-Anae to terminate his tenancy [3] Downs J dismissed Mr Greensmith's appeals against both his convictions andsentence.4 Mr Greensmith applies for an extension of time to apply for leave to bringa second appeal.[4] The application for leave to bring a second appeal is two and a half years outof date. There was no opposition to this application and we therefore grant theextension.Application for leave[5] Under ss 237(2) and 253(3) of the Criminal Procedure Act 2011, this Courtmust not grant leave for a second appeal unless it is satisfied the appeal involves a3 At [22].4 Greensmith v Police [2018] NZHC 2262 [Appeal judgment].matter of general or public importance or that a miscarriage of justice may haveoccurred or may occur unless the appeal is heard. This is a high threshold.5[6] In Mr Greensmith's application for leave to appeal he states his grounds as: I had already thrown three buckets of water over her and was standing onmy desk in the bedroom waiting to run around the other side of the house tochuck another bucket of water over her, she told the policeman where I wasstanding behind heavily covered windows. There was no assault ofFong-Anae as after I chucked the bucket of water over her she put her hand toher face her thumb to her nose and wiggled her fingers at me. There are othertenancy rulings stating that she should not be allowed to abuse the legalprocess in this manner.[7] Mr Greensmith did not file written submissions in support of his application,notwithstanding several directions to do so.6 The application has been considered onthe basis of the case on appeal and the respondent's written submissions.[8] In his decision Downs J recorded the four grounds of appeal advanced byMr Greensmith. These were: Mr Greensmith had not been represented at the trial;Mr Greensmith was excluded from the courtroom during parts of the trial; the policeofficers who testified were not those who had attended the incident; and the finding ofguilt was "not supported by the evidence or law".7 The Judge dealt with each groundcomprehensively.[9] As to the first ground, Mr Greensmith had been represented by the PublicDefence Service and then by two barristers assigned by the Legal Services Agency.All had withdrawn. The Judge inferred that Mr Greensmith's instructions hadcompromised their ability to represent him.8 The third barrister, Mr Walker, alsowithdrew but was appointed amicus curiae, requiring him to assist Mr Greensmith tothe extent that he would accept help (a role now known as standby counsel).9Mr Walker filed submissions on Mr Greensmith's behalf, and cross-examined thecomplainant and the police witnesses. The Judge was satisfied the trial was fair.105 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.6 Minutes of French J: Greensmith v Police CA199/2021, 24 August 2021; 23 November 2021;8 December 2021; and 2 February 2022.7 Appeal judgment, above n 4, at [3].8 At [11].9 Fahey v R [2017] NZCA 596, [2018] 2 NZLR 392 at [64].10 Appeal judgment, above n 4, at [9] and [13]–[14].[10] As to the second ground, the Judge accepted Mr Greensmith had been excludedfrom the courtroom during the trial. The reasons could not be identified. However,the Judge was satisfied that the period of exclusion was not more than 55 minutes ofthe three-day trial and in circumstances where the witness giving evidence at therelevant times had only marginal importance. Further, Mr Walker had remained incourt throughout to protect Mr Greensmith's interests. There was, therefore, noadverse risk to the fairness of the trial.11[11] As to the third ground, the Judge rejected the complaint that the officers whogave evidence were not those who had attended the incident. He found this contentionwas not supported by the evidence.12[12] As to the final ground, the Judge found the finding of guilt was open to the trialjudge. Mr Greensmith's defence was that he was the victim of a conspiracy to evicthim from his tenancy. The Judge was satisfied this matter had been fully and fairlydealt with in the District Court and the conclusion as to Mr Greensmith's guilt wasavailable.13[13] The Judge was also satisfied that the District Court Judge had correctlydetermined the application for discharge without conviction, having applied settledmethodology and taken into account the relevant factors.14[14] Although Mr Greensmith appealed his sentence, the Judge recorded thatMr Greensmith did not make submissions in relation to the sentences imposed.The Judge considered the sentencing outcome was available for the reasons that hadbeen given in the District Court.15[15] We see no error by the Judge, and Mr Greensmith does not identify any error.It is evident that Mr Greensmith wishes to relitigate the defence he advanced at trial.However, that is not the purpose of a second appeal. The subject matter of the11 At [15]–[22].12 At [23]–[24].13 At [25]–[28].14 At [30].15 Appeal judgment, above n 5, at [31].proposed second appeal — convictions for minor assault for which fines were imposed— cannot possibly be described as matters of general or public importance. We aresatisfied that no miscarriage of justice may have occurred or may occur if the appealis not heard.Result[16] The application for an extension of time for leave to appeal is granted.[17] The application for leave to appeal is declined.Solicitors:Crown Law Office, Wellington for Respondent