R v Darren Edward Charles Torrey

[2003] NZCA 301

IN THE COURT OF APPEAL OF NEW ZEALAND

CA309/02

THE QUEEN

v

DARREN EDWARD CHARLES TORREY

Hearing:28 October 2003

Coram:Blanchard J
Goddard J
William Young  J

Appearances:  Appellant in Person

A Markham for Crown

Judgment:16 December 2003 

JUDGMENT OF COURT DELIVERED BY BLANCHARD J

Introduction

[1]       On 25 February 1998, after a jury trial in the High Court at Gisborne, Mr Torrey was convicted of the murder of his wife on 20 August 1997 and sentenced to imprisonment for life.  No appeal was brought against that conviction until last year when Mr Torrey sought leave to appeal out of time.  The Legal Services Agency refused him legal aid.  An initial determination was made by a Judge of this Court under s392A of the Crimes Act 1961 that the matter should be dealt with on the papers but, when no written submissions were forthcoming from Mr Torrey, the Court decided that, in view of the nature of the conviction and the sentence being served, Mr Torrey should have the opportunity of making oral submissions, which he has done.

Facts

[2]       Just after midnight on 21 August 1997 the body of Mrs Torrey was found on a playing field of a school in Gisborne where she had employment as a cleaner.  The evidence established that she had been killed elsewhere (the location still being unknown).  She had been strangled.  Her body had been dragged onto the playing field.

[3]       Earlier that afternoon Mr Torrey had gone fishing with some friends, in the course of which he had consumed some cannabis oil.  Mrs Torrey was due to commence work at 4pm and Mr Torrey was shortly afterwards to begin a shift at the Juken Nissho Mill.  They had only one motor vehicle so one of them had to drop the other off at work.  There was evidence that there had been some friction between them in the past relating to this situation.  Mrs Torrey had a reputation for punctuality.  Her husband did not. 

[4]       Mrs Torrey did not turn up at work.  Some friends and relatives who had driven away after a visit to the house, returned unexpectedly about 20 minutes later.  As they were driving up they saw Mr Torrey walking towards his car, a grey Mazda.  One of them approached the house and knocked on the door.  There was no response.  Mr Torrey drove away without speaking to them. 

[5]       Mrs Torrey was not seen again until her body was found.  Mr Torrey’s car or one very much resembling it, driven by a male person, was seen by several persons over the next few hours.  The sightings included one at the school.  Also, during that time Mr Torrey asked to use a telephone in a local shop and appeared to the shopkeeper to be having a discussion about the breakdown of his car.  But when telephone records were checked it transpired that no call had actually been made, so the conversation was a fake. 

[6]       Mr Torrey arrived at work after 7pm.  His behaviour and demeanour were noted by several co-workers to be unusual.  He did not clock in even though it was the policy of the mill not to pay except in accordance with clocking-in records.  To at least one co-worker he mentioned concerns about the whereabouts of his wife.  This was at a time when he would not have known that she was missing from work.

[7]       Mr Torrey was seen leaving the mill building at about 10.30pm.  He was next seen in the building around 11pm.  The intervening period would have been sufficient for him to drive to the playing field, drag the body onto the field and return to the mill.  After he left work he and another man drove to the vicinity of the school.  Mr Torrey insisted that the car be driven to a position near the playing field.  Despite the fact that he would not have been able to see anything on the playing field and there were police near where the car was parked, Mr Torrey began to walk directly towards the place where the body was lying, until a police officer intervened.  He was observed to be in a distressed state.

[8]       A forensic examination of the car revealed a number of bloodstains.  The blood had come from Mrs Torrey.  There was also a stain of her blood on the clothing which Mr Torrey had been wearing during the afternoon.

[9]       Mr Torrey thus faced a very strong circumstantial case.  He did not give evidence.  A statement which he had made to the police was ruled inadmissible before the trial, except in certain immaterial respects.

Mr Torrey’s submissions

[10]     In addressing the Court Mr Torrey concentrated on the evidence of a witness whom we had not so far mentioned.  This was a Mr Te Aho who said he had been at the local hospital to which his girlfriend had been admitted.  While he was walking home late in the evening he had seen a man emerge through a hedge bounding the playing field.  Mr Te Aho had later, for unrelated reasons, been in custody in a prison at which Mr Torrey was being held and had recognised him there as the man he had seen on the night of 20 August.

[11]     Mr Torrey told us that Mr Te Aho was a well-known criminal and compulsive liar.  Mr Torrey claimed that Mr Te Aho had something to do with his wife’s death.  He named two other men whom he said were also responsible.  He said the police had located them around the school on the night in question.  He also claimed that Mr Te Aho could have obtained at the hospital the ligature which had been used to strangle Mrs Torrey.

[12]     As to the bloodstains found in the car and on his clothing, Mr Torrey said that his wife had died from strangulation, which would not have involved loss of blood.  It was pointed out to him that the unchallenged pathologist’s evidence was that Mrs Torrey had suffered a very severe blow in the stomach or abdomen shortly before she was strangled.  The evidence was that this had lacerated her liver and caused internal bleeding.  It is likely that blood would have issued from Mrs Torrey’s mouth. 

[13]     Mr Torrey also asserted, without reference to any supporting material, that the police must have planted the bloodstains.  He also pointed out that the murder weapon (the ligature) had not been found and he said that there was nothing connecting him with the crime.

[14]     At the end of the hearing we asked Crown counsel to examine the police files and to advise us concerning whether the persons named by Mr Torrey had been located near the school and whether statements had been taken from them and whether there was any material indicating that they may have had an involvement in Mrs Torrey’s death.  Crown counsel has filed a memorandum with the Court advising that the police file has been checked by her assistant and under her supervision and that the names of the persons mentioned by Mr Torrey did not feature in the police inquiry at any time.  That has also been confirmed by the Gisborne Police. 

[15]     Some time after the trial a search of a prison cell at the Hawkes Bay Regional Prison revealed a letter apparently written and signed by a prisoner, with no connection with case, concerning a conversation overheard by him in prison about the killing of a young unnamed woman.  Allegations were being made involving the two men named by Mr Torrey.  For reasons unexplained, the letter writer apparently connected this matter with the murder of Mrs Torrey.  The writer of the letter has not, however, made any statement to the police.  The letter was forwarded to them but they did not consider that it warranted further investigation.

[16]     Mr Torrey was invited to make further submissions in response to the materials supplied by Crown counsel.  The Court has received a detailed submission written on behalf of the Torrey family by Mr Torrey’s mother.  We have carefully considered that material but have found nothing in it which assists Mr Torrey’s appeal.

Decision

[17]     As we have said, the case against Mr Torrey was a strong one and nothing has now emerged on the basis of which it can be said that the jury’s verdict was unsafe.  Although the time of Mrs Torrey’s death was not clearly established, something must have happened to her at about 4pm for otherwise she would have turned up to work at that time.  The evidence was that she did not arrive at work on that afternoon.  Clearly, also, her body must have been transported to the playing field after dark for it would certainly have been seen if it had been there at an earlier time.  Mr Torrey’s observed behaviour was very suspicious and his wife’s blood was found in his car, which he told us he was in the habit of cleaning frequently, and on his clothing.  There was an opportunity for him to have moved the body to the playing field late in the evening.

[18]     We are satisfied that we would not be justified in interfering with the jury’s verdict.  Leave to appeal is granted but the appeal is accordingly dismissed.

Solicitors:
Crown Law Office