Berrett v The the Queen
[2022] NZCA 191
•18 May 2022
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA701/2018 [2022] NZCA 191 |
| BETWEEN | QUINTON MURRAY BERRETT |
| AND | THE QUEEN |
| Court: | Kόs P, Woolford and Dunningham JJ |
Counsel: | Applicant in person |
Judgment (on the papers): | 18 May 2022 at 9 am |
JUDGMENT OF THE COURT
The application for recall is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Woolford J)
On 8 November 2019, Mr Berrett’s appeal against conviction and sentence was dismissed.[1] He now applies for a recall of the judgment.
Jurisdiction to recall criminal appeal decision
[1]Berrett v R [2019] NZCA 545.
In Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2),[2] the Supreme Court said that three categories of cases had been recognised by the New Zealand courts in which a judgment may be recalled if not already perfected, adopting the following passage from the decision of Wild J in Horowhenua County v Nash (No 2) as a convenient statement of those principles:[3]
... first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.
[2]Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76.
[3]At [2], citing Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.
While Saxmere was a civil case, in Uhrle v R the Supreme Court recently confirmed that Saxmere contained a useful statement of the principles to govern applications for recall in the criminal jurisdiction as well.[4] The Court said:
[29] As to the test to be applied, we consider that this should be formulated to make clear the decision to reopen an appeal is an exceptional step, but also to ensure the court remains able to respond to the wide variety of circumstances that may necessitate that step in order to avoid injustice. We are content that these concepts are sufficiently captured within the three grounds for recall articulated in Horowhenua County and approved in Saxmere (No 2), and in particular in the third ground: whether for any very special reason justice requires the judgment to be recalled. It is the third ground that is likely to be the most relevant in the criminal jurisdiction.
(Footnotes omitted.)
Factual background
[4]Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286 at [25].
Following a jury trial in the District Court at Whanganui between 14 and 16 May 2018, Mr Berrett was convicted of one charge of threatening to destroy property,[5] two charges of blackmail[6] and one charge of attempting to pervert the course of justice.[7] On 10 October 2018, he was sentenced to two years’ intensive supervision and 180 hours of community work.[8]
[5]Crimes Act 1961, s 307.
[6]Sections 237 and 238.
[7]Section 117(e).
[8]R v Berrett [2018] NZDC 21444.
The first charge on which Mr Berrett was convicted was threatening to destroy property, specifically a Royal New Zealand Returned and Services’ Association (RSA) building. The charge arose from 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.
The second and third charges of blackmail arose out of two emails dated 16 April 2015 and 19 April 2015 sent from the same email address to the official New Zealand Defence Force artist, Mr Matthew Gauldie. The fourth charge, attempting to pervert the course of justice, related to an email sent from the same email address to the Crown Solicitor in Whanganui, dated 10 May 2016.
On appeal, Mr Berrett submitted that the Crown failed to prove that he sent each of the four emails that were the subject of the charges. He said he had no prior knowledge of the contents of the four emails before they were sent and did not know the identity of the individuals responsible for sending them. He said emails had been sent from the email address connected with him on numerous occasions when he had no internet access, such as when he was at a meeting inside the Whanganui Police Station or present in the District Court at Whanganui for a callover.
In particular, at the time of the first email Mr Berrett said he had already travelled to Masterton with the intention of going fruit picking. He could not have been responsible for sending the email as it would have been impossible for him to do so. He did not have any direct access to the internet during this time, nor did he have access to any device capable of sending the email.
He also said he had no direct contact with Mr Gauldie after a telephone call on 8 December 2014. The two allegedly threatening emails received by Mr Gauldie did not resemble any email that he had ever written and violated his own code of ethics and rules he had set for a movement he called the Lawful Rebellion. Furthermore, he said the fourth email was copied and pasted by unknown individuals directly from his website. He said that he posted documents online so that others who wished to join the Lawful Rebellion could imitate his writing style and be free to protest while remaining completely anonymous.
More generally, Mr Berrett submitted that the Crown had not traced any of the emails to an internet service provider or a particular device that was used to send them. He submitted the Crown’s computer expert was wrong to say it was “very difficult” to tell which computer an email was sent from if it had been sent using a web browser. Mr Berrett said it was relatively easy to establish. If the Crown had produced this information, Mr Berrett said he could prove that he did not use any computer or device that was used to commit the alleged offence.
In the judgment, we concluded there was more than sufficient evidence for the jury to conclude that each of the four emails were sent by Mr Berrett. They were in his name and sent from his email address. Mr Berrett corresponded with the Police using the same email address.[9] The Police organised a meeting between Mr Berrett and RSA representatives following the email dated 1 March 2015 (in which he threatened to burn down an RSA building). At the meeting, Mr Berrett did not deny sending the email, commenting only that he did not consider he had made a threat because he had not put a date on it. When Police interviewed Mr Berrett, he said he had sent two emails to Mr Gauldie and specifically accepted that he had sent the 16 April 2015 email. Mr Berrett also implicitly conceded the fourth email was in his writing style.[10]
[9]Berrett v R, above n 1, at [25].
[10]At [26].
We concluded that, while a computer and a cellphone seized by Police pursuant to a search warrant from the home of Mr Berrett’s mother were not shown to be connected with the emails, the evidence led at trial disclosed that the emails could have been sent from any computer or mobile device with internet access through a web browser.[11]
Grounds for recall
[11]At [27].
By email dated 12 February 2022, Mr Berrett “formally” requested that we recall the judgment. He set out the grounds for recall in an attached email to the Prime Minister, the Rt Hon Jacinda Ardern, dated 10 February 2022. We accept Mr Berrett’s email as an application for recall.
Mr Berrett asserts that the Police digital forensic expert who gave evidence at trial perjured himself when he said it was “very difficult” to tell if emails were sent from a particular computer if they had been sent using a web browser. Mr Berrett says that IP addresses are readily accessible and that it only takes around three clicks of a mouse button to achieve this “very difficult” task. He says the procedure to access IP addresses is set out in the OEM (Original Equipment Manufacturer) manual supplied with all Microsoft Windows-based products.
Mr Berrett says that the expert’s testimony was key to a successful prosecution as it nullified his defence, which was that the IP addresses of each of the four emails could be used to obtain the account information and location of the individuals responsible when the crime was allegedly committed.
Mr Berrett also asserts that the Crown Prosecutor knew this and so she intentionally denied him his rights to the natural observance of fair justice in practice by intentionally misleading the jury into returning a guilty verdict. Mr Berrett would like both the Police digital forensic expert and the Crown Prosecutor criminally charged.
Discussion
Recall is not the appropriate response to Mr Berrett’s allegation of perjury. The scope of the power to recall is a narrow one.[12] We are not persuaded that there is a “very special reason” requiring the judgment to be recalled.
[12]Uhrle v R, above n 4, at [29].
Mr Berrett’s application for recall is essentially an attempted re-run of the trial. The question of who wrote and sent the four emails was clearly a major issue in the trial and on appeal. The very first words spoken by Mr Berrett in his opening address to the jury were:
Please remember that you have not been provided with any location, device, ISP address, or IP address associated with any of the emails sent. So far you have just been reading it in paper at this point.
However, Mr Berrett immediately went on to implicitly acknowledge to the jury that he was in contact via email with the RSA. He said:
If the prosecution had read all of the emails from when this first began on 8 December 2015 it will show that all I asked the RSA to do was to apologise for forwarding my friend’s email on to someone other than it was intended inclusive with her personal name and details. That is all I have asked for, an apology, nothing more. There was no ground for me to threaten anyone for any reason at all.
At trial, Mr Berrett cross-examined the Police digital forensic expert. The expert conceded in cross-examination that it was possible someone else may have written the PDF files found on the computer seized from Mr Berrett’s mother’s address, which were in Mr Berrett’s name. When advised by Mr Berrett that his mother’s address did not have internet access, the expert acknowledged that it was probable they had therefore been copied from elsewhere using a thumb drive or CD or “something like that”. He also acknowledged it appeared several people had access to the computer.
Mr Berrett elected not to give or call evidence at trial and therefore did not deny on oath that he had sent the four emails at issue.
Nonetheless, the Judge in his summing-up reminded the jury of the submission made by standby counsel, Ms D Goodlet, that they had to be sure that the email addressed to the RSA was sent by Mr Berrett. The Judge also referred to the Crown’s submission that the jury could be sure that Mr Berrett sent it because it was from his email address; he had contacted Detective McArthur, one of the officers in charge of the case, from that email address; he had attended a meeting with the RSA and the Police and had engaged in subsequent correspondence; at the meeting he had not denied sending the email or making the threats; and subsequent emails made reference to similar threats regarding damage to RSA buildings.
An application for recall may not be a substitute for a second appeal by leave, or be used to reopen matters which have already been decided and put forward further
arguments.[13] Mr Berrett’s application is an attempted re-run of the trial. The only material put forward on the application is a link to a Microsoft Office manual page entitled “View internet message headers in Outlook”. This is insufficient to establish a “very special reason” necessary to grant the application.
[13]Faloon v Commissioner of Inland Revenue (2006) 22 NZTC 19,832 (HC) at [13], cited with approval in Erwood v Maxted [2010] NZCA 93, (2010) 20 PRNZ 466 at [5]; and Nottingham v Real Estate Agents Authority [2017] NZCA 145 at [9].
The application for recall is dismissed.
Solicitors:
Crown Solicitor, Wellington for Respondent
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