Feary v The Queen
[2011] NZCA 235
•31 May 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA568/2010 [2011] NZCA 235 |
| BETWEEN MARK STAFFORD FEARY (AKA ALL MEANS ALL) |
| AND THE QUEEN |
| Hearing: 25 May 2011 |
| Court: Randerson, Gendall and Allan JJ |
| Counsel: No appearance by or on behalf of the Appellant |
| Judgment: 31 May 2011 at 1 p.m. |
JUDGMENT OF THE COURT
The appeal against conviction and sentence is dismissed.
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REASONS OF THE COURT
(Given by Randerson J)
Introduction
Following a trial in the Christchurch District Court before Judge Neave and a jury, the appellant was convicted of 12 counts of threatening to do grievous bodily harm and two counts of threatening to kill.[1] He was fined $500 for each of the first 12 offences and $7,000 for the remaining two, a total of $20,000.
[1] R v Feary DC Christchurch CRI-2009-009-13383, 22 July 2010.
The appellant filed a notice of appeal against both conviction and sentence in his personal capacity. When the case was called, the appellant did not appear. For reasons which we later relate, we are satisfied that the Court took all reasonable steps available to notify the appellant of the date and place of hearing. In the absence of any submissions from the appellant, we address the merits of his appeal by reference to the grounds set out in the notice of appeal.
Background facts
The appellant was involved in a long-running dispute with the Commissioner of Crown Lands over an historical pastoral lease his family held on land in North Canterbury. This gave rise to a grievance concerning a payment by the Crown (as part of a settlement agreement) of legal costs the appellant incurred in relation to the dispute.
In September 2008, the appellant began sending letters by facsimile to the offices of the Prime Minister, various Ministers of the Crown and senior government officials. Initial letters to the Solicitor-General and the Commissioner of Crown Lands threatened to cause harm to both of them unless steps were taken to resolve the dispute. On some occasions, a hard copy of the letters transmitted by facsimile would also be sent by post. On occasions in November and December 2008, the envelope and folded letter would contain a gold paint-like substance that would spread when opened.
In late October 2008, a police officer warned the appellant about his behaviour and advised him that it was an offence to threaten to cause grievous bodily harm to a person or to threaten to kill them. Despite these warnings, the appellant continued to send letters containing specific threats to “cause grievous bodily harm”. These letters were initially directed to the Prime Minister, the Solicitor-General and the Commissioner of Crown Lands but later extended to include the Commissioner of Police, the Minister of Police, the Minister of Justice, the Attorney-General and the leaders of the Maori, ACT and United Future political parties. Fourteen such letters were sent by facsimile to various government departments and Parliament between 2 and 18 February 2009. On 18 February 2009, the appellant twice sent a letter by facsimile to the Prime Minister stating in bold text “Its killing time”.
The trial
The trial occupied five days. The relevant letters were produced as exhibits. Much of the Crown case was taken up with proof that it was the appellant who had sent the letters and that they had been received at the offices of the recipients. The appellant admitted in cross-examination that he had sent the letters. The Crown also called the police officer who had conveyed the warning to the appellant before he sent the further letters which formed the subject of the charges.
The appellant was the only witness for the defence. His evidence occupied the best part of two days of the hearing Much of it was concerned with his dispute with the Crown and his contention that his letters were sent because of a concern by him that he had been bullied or treated badly by the Crown. He produced some correspondence from the Crown in support of this contention. Relevantly, the appellant seemed to be contending first that the words contained in the letters did not mean what they said and, secondly, that he did not mean his letters to be taken seriously by those to whom they were sent.
On the first point, the Judge directed the jury that it was a matter for them to determine the meaning of the letters in the context in which they were sent. On the second point, the Judge directed the jury as follows:
[40] The second point, and perhaps the more difficult one, is whether or not Mr Feary intended these matters to be taken seriously. He seemed, I think, to be saying and you would certainly be entitled to accept this view if you thought he was or might be correct, that no one could have taken these things seriously. He referred to them starting off with the gold paint. Of course, that is not one of the things he is charged with but it forms part of the context for the people receiving them and he says that this was the sort of thing that might have been by a child and then referred to the artistic standards of his mother in particular.
[41] Of more significance might also be the fact that he says, “I did not think anybody would take these seriously. Everybody knew of my dispute with the government,” I think that is what he was saying but more importantly, particularly after the first two on 2 February were sent without any reaction, he says, “Well nothing followed from that just as nothing had followed from my earlier correspondence so I was pretty confident that nobody was taking these things seriously and I did not think that they would and I certainly did not mean them to”. Well, that will be for you to assess and particularly against the background of the warning that was given to him by Constable Terry.
[42] But if you accept what Mr Feary says, that he, in particular, that he did not intend these things to be taken seriously, then obviously the proper verdict will be an acquittal because he will not have done what the Crown says he did. He will not have the necessary state of mind. But there are other possibilities. What he says might leave you in a situation where you are unsure about what his state of mind was. If that is the case then the proper verdict would be an acquittal because you will have been left with a reasonable doubt.
[43] If what the accused says seems to be a reasonable possibility, the Crown will not have discharged its task and you must acquit and here I am talking about what the accused says about the key issues in the case not about the other stuff which I have already discussed.
[44] If, however, you disbelieve the accused’s evidence, that he did not believe these things would be taken seriously, you must not leap straight from that assessment to guilt because that would be to forget who has to prove the case. In other words you cannot say, well we do not believe him, therefore he must be guilty. What you have to do is put his evidence to one side, look at all the other evidence and decide whether it satisfies you of the accused’s guilt to the requisite standard.
By its verdict, the jury clearly rejected the defences raised and found that the Crown had proved beyond reasonable doubt all the legal elements of the offences. We are satisfied that the directions given by the Judge were correct in every respect and that his summing up put the defence case fairly.
The sentencing
Judge Neave noted at the outset of his sentencing that there was no suggestion of any intention on the appellant’s part to carry out the threats contained in the letters. The Judge also referred to the background to the dispute over the appellant’s property but considered it to be of limited relevance. Aggravating factors included the persistence by the appellant in his letter-writing campaign despite the warning by the police officer, the repetitive nature and escalation of the threats and the degree of premeditation and planning involved. While recognising the need for denunciation and deterrence, the Judge acknowledged the importance of encouraging the appellant to put the dispute behind him and move on with his life.
The Judge noted that the appellant submitted that he should be sent to prison. The Judge rejected that submission. He also accepted that the appellant was unlikely to comply with any community-based sentence. In the circumstances, the Judge considered that a fine would be the most effective way of ensuring individual deterrence and denunciation and would also send a message to the community that behaviour of this kind would not be tolerated. The appellant informed the Judge he had a freehold property subject to a mortgage. He told the Judge that the financial status of the property was precarious but declined to provide a declaration about the exact state of his financial affairs. In those circumstances, the Judge inferred that the appellant had sufficient means to pay a fine and imposed the fines totalling $20,000 referred to at the commencement of this judgment.
Grounds of appeal against conviction
In summary, the grounds of appeal contained in the notice of appeal are:
(a)The verdicts were unreasonable and cannot be supported having regard to the evidence.
(b)The verdicts should be set aside on the grounds of wrong decisions on questions of fact and law.
(c)A miscarriage of justice had occurred.
The appellant also stated that he had not been provided with complete copies of trial and sentencing documentation and advised (without providing any detail) that he wished to call new evidence. In further elaboration of his grounds of appeal, the appellant said he wished to explore contradictions in the evidence; he complained that the Judge had deliberately “sort [sic] to ram a square peg into a round hole”; and he indicated a wish to obtain extracts from the tape recordings of the court proceedings.
We are satisfied that the conviction appeal cannot succeed. The appellant admitted sending the relevant letters the meaning of which is clear on their face. It was entirely open to the jury on the evidence to conclude that the essential elements of the charges were established beyond reasonable doubt. Nor have we been able to detect any errors of law in the summing up or any other basis to support the contention that a miscarriage of justice occurred. Our review of the transcript and the summing up shows that the Judge adopted a conspicuously fair approach to the case notwithstanding a great deal of discursive and irrelevant material offered by the appellant.
The notice of appeal states that the sentences should be set aside on the grounds of wrong decisions on questions of fact and of law. No further details were given. We have been unable to identify any material errors of fact on the part of the Judge at the time of sentencing and we are of the view that the sentences imposed were entirely appropriate. Indeed, they might be regarded as lenient in the circumstances.
Notification of the hearing date
Attempts by the Court Registry to notify the appellant of the date and place of hearing of this appeal have been marked by a complete lack of co-operation on his part. Correspondence addressed to him at his North Canterbury address has been consistently returned by him. His apparent reason for returning the correspondence to the Court is that he wishes to be known as “All Means All” rather than the name of Mark Stafford Feary, the name specified in the indictment and the name under which he was convicted and sentenced. The appellant has never provided the Court with any evidence documenting an official name change.
There can be no doubt that the appellant received the correspondence and that he knew it was from this Court. Envelopes and courier packages sent to him were all marked as coming from the Court of Appeal and they were sent back to the Registry with covering letters from the appellant. In some cases, letters were sent back to Crown Law with covering letters addressed to the Solicitor-General and copied to the Court of Appeal.
The date fixed for the hearing of the appeal was 25 May 2011. Unfortunately, it became necessary to change the venue for the appeal first from Christchurch to Wellington and then from Wellington to Auckland. The material events in April and May were:
7 April 2011: the Registry advised the appellant that his appeal would be heard on 25 May 2011 in Auckland. A copy of the envelope in which this letter was sent was returned but not the fixture notice enclosed.
14 April 2011: The Court sent its usual six week letter to the appellant confirming the fixture date and advising that submissions were due from him on 4 May 2011. This letter was returned.
12 May 2011: A Minute was issued and sent that day to “All Means All” at the appellant’s address. At the same time, a copy of the case on appeal was sent again to the appellant (it had earlier been sent to him and returned by him to the Court in November 2010).
17 May 2011: The appellant wrote to the Solicitor-General (with a copy to the Court of Appeal Registry) sending back the Court’s letter of 7 April 2011 and the Minute of 12 May 2011. It is apparent from this that the appellant must have opened both the letter of 7 April 2011 and the Minute since they were sent on separate dates but returned in the same envelope. Each confirmed the date and place of hearing. At the same time, the appellant couriered the case on appeal back to the Court Registry.
It is apparent from a stream of correspondence received by the Court from the appellant that he chose not to take part in the hearing of this appeal because of his concerns that letters were addressed to him using a name which he did not consider appropriate. We note that although some of these letters were sent to “Mr M S Feary AKA All Means All”, the appellant even returned correspondence addressed solely to “All Means All”.
We are satisfied that the appellant has had every opportunity to advance his appeal if he wished to do so and that his expressed reasons for returning correspondence do not provide any excuse for his failure to comply with the Court’s directions or to advance his appeal. In any event, for the reasons given, we are satisfied that his appeal had no prospect of success.
We would add that the appeal was due to be heard in Auckland at 2.15pm on 25 May 2011. We waited until 2.30pm in case the appellant was late but he did not appear. Registry staff in Wellington also reported to us that the appellant did not attend the Court in Wellington on the day of hearing either.
Result
The appeal against conviction and sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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