Feary v The Queen - [2011] NZCA 235

IN THE COURT OF APPEAL OF NEW ZEALAND

CA568/2010
[2011] NZCA 235

BETWEEN MARK STAFFORD FEARY (AKA ALL MEANS ALL)
Appellant

AND THE QUEEN
Respondent

Hearing: 25 May 2011

Court: Randerson, Gendall and Allan JJ

Counsel: No appearance by or on behalf of the Appellant
S B Edwards for Respondent

Judgment: 31 May 2011 at 1 p.m.

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.
___________________________________________________________________

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.…

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 Feary v The Queen

Details

AGLC: Feary v The Queen [2011] NZCA 235
Case: [2011] NZCA 235
Decision Date: 31 May 2011

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Mark Stafford Feary, also known as "All Means All", appealed against both his conviction and the sentence imposed by the Christchurch District Court. The appellant was convicted of 12 counts of threatening to do grievous bodily harm and two counts of threatening to kill. He was fined $500 for each of the first 12 offences and $7,000 for the remaining two, a total of $20,000. The appellant filed a notice of appeal against both his conviction and the sentence, but did not appear at the hearing of the appeal. The Court proceeded to address the merits of the appeal by reference to the grounds set out in the notice of appeal. The court was required to determine whether the appellant's appeal against his conviction and sentence had any merit.

The Court found that the appellant had admitted sending the relevant letters which were clear in their meaning. The jury was entitled to conclude that the essential elements of the charges were established beyond reasonable doubt. The Court found no errors of law in the summing up or any other basis to support the contention that a miscarriage of justice had occurred. The Court also found that the sentences imposed were entirely appropriate. The Court found that the appellant had had every opportunity to advance his appeal and that his reasons for not doing so did not provide any excuse for his failure to comply with the Court’s directions. The Court concluded that the appeal had no prospect of success.

The appeal against conviction and sentence is dismissed. The Court ordered that the appellant pay the costs of the appeal.

Orders