Berrett v The Queen - [2019] NZCA 545

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA701/2018
[2019] NZCA 545

BETWEEN	QUINTON MURRAY BERRETT Appellant
AND	THE QUEEN Respondent

Hearing:	7 August 2019
Court:	Kós P, Woolford and Dunningham JJ
Counsel:	Appellant in person S A H Bishop and S K Brennan for Respondent
Judgment:	8 November 2019 at 11 am

JUDGMENT OF THE COURT

ALeave to appeal out of time is granted.
BThe application to adduce further evidence on appeal is declined.
CThe appeal against conviction is dismissed.
DThe appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Woolford J)

Following a jury trial in the District Court at Whanganui between 14 and 16 May 2018, Quinton Murray Berrett was convicted on one charge of threatening to destroy property, two charges of blackmail and one charge of attempting to pervert the course of justice. On 10 October 2018, he was sentenced to two years’ intensive supervision and 180 hours of community work.[1] He now appeals against conviction and sentence.

Factual background

[1]R v Berrett [2018] NZDC 21444 [Sentencing notes].

In around 2012, Mr Berrett formulated an idea for dual statues of saluting soldiers to commemorate the ANZAC troops, one to be erected in New Zealand and the other in Australia, both facing towards each other. He discussed his idea with an official New Zealand Defence Force artist, Mr Matthew Gauldie. Mr Gauldie agreed to carry the proposal forward.
Mr Gauldie approached the Royal New Zealand Returned and Services Association (RSA) to see if they were interested in arranging sponsorship for the project. The RSA was interested and the project became known as the ANZAC Salute project. It was developed through 2012 and 2013, but Mr Berrett had no involvement in it beyond originally communicating his idea to Mr Gauldie in 2012.
In 2014 the RSA published a report describing the project (without Mr Gauldie’s knowledge) as Mr Gauldie’s idea. On 30 November 2014, the RSA received an email from Nikki Pratt, a friend of Mr Berrett, complaining of the error. The RSA passed the message on to Mr Gauldie, who spoke to Mr Berrett by telephone. In the course of the telephone call, Mr Berrett became agitated and aggressive. There was then a falling out between Mr Berrett and Mr Gauldie.
The first charge on which Mr Berrett was convicted was threatening to destroy property. It related to an email sent from an email address connected with Mr Berrett to a large number of recipients, including office holders and members of the RSA, journalists and politicians on 1 March 2015. It stated in part:
After careful consideration I have decided it is now time to take action. I have been ignored by politicians, the SFO, media, the RSA, the governor general, the minister of veteran affairs of both labour and national. I have been ignored by the ANZ Bank, Mayors and local mp’s. Everyone on this email list is aware of my situation and there are many…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Berrett v The Queen

Details

AGLC: Berrett v The Queen [2019] NZCA 545
Case: [2019] NZCA 545
Decision Date: 8 November 2019 at 11 am

CaseChat Overview and Summary

Quinton Murray Berrett, the appellant, filed an appeal against his conviction and sentence, which was heard by Kos P, Woolford, and Dunningham JJ. The appellant was convicted of threatening to destroy property, blackmail, and attempting to pervert the course of justice. He was sentenced to two years’ intensive supervision and 180 hours of community work. The court had to decide whether to grant leave to appeal out of time, the application to adduce further evidence on appeal, and the appeal against conviction and sentence.

The court granted leave to appeal out of time as the appellant's appeal was filed six days late due to the refusal of the District Court to release a copy of the sentencing transcript. The court declined the application to adduce further evidence on appeal as the proposed evidence was not in affidavit form. In terms of the appeal against conviction, the court found that there was sufficient evidence to conclude that the appellant sent the four emails that were the subject of the charges. The court also found that the Crown prosecutor did not commit any prosecutorial error or misconduct that could lead to a miscarriage of justice. The appellant's complaints about the formal written statements of witnesses and the jury foreperson did not give rise to an error, irregularity, or occurrence that could cause justice to miscarry. In terms of the appeal against sentence, the court found that the sentence of two years’ intensive supervision and 180 hours’ community work was not manifestly excessive.

The appeal against conviction and sentence was dismissed, and leave to appeal out of time was granted. The application to adduce further evidence on appeal was declined.

Orders