T v Police HC Greymouth CRI 2008-418-4

[2008] NZHC 893

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CRI 2008-418-000004

T

Appellant

v

POLICE

Respondent

Hearing:         12 June 2008

(Heard at Christchurch)

Appearances: Appellant in Person

C E Butchard for Respondent

Judgment:      12 June 2008

JUDGMENT OF FOGARTY J

[1]    This is an appeal against a conviction under s 112(2)(a) of the Telecommunications Act 2001.   The grounds of appeal are based on mistakes that were made in the course of the hearing.  The information charged that on the 7th day of July the appellant used a telephone device for the purpose of disturbing, alarming or offending the  recipient by making references  to  delivering  a  child’s  head  to Parliament in two truck bombs.

[2]      The first witness called for the police was the secretary for the member of

Parliament, Damien O’Connor.  The secretary’s name is Mr Coburn.  In the course of his examination he was asked this question:

T  V POLICE  HC GRY CRI 2008-418-000004  12 June 2008

Q.Can you recall, bearing in mind it was March 2006, what Mr T   said to you or what the statement was about.

AWell it was obviously a lengthy conversation and the two threats, implied threats that I found disconcerting and felt that I had to tell someone about was one concerning truck bombs being delivered to Parliament, the first bomb to blow up Parliament, the second to get the survivors when they came out.  But probably the comment that I found most disconcerting was the implied threat to deliver a child’s head to Parliament.

[3]      Mr T  ’s point is that he was charged with a conversation on 7 July, that it was not in March 2006 and that this was a material mistake.  In fact he argued that because it was a mistake that was sufficient.   In both the question and the answer there is the use of the word “it”.   The passage that I have just quoted followed from a series of questions which began with this question:

Q.       Just cast your mind back to 7 July 2006.   You were working in

Wellington then.

A.       Yes.

Q.       And just after 10 who did you receive a phone call from. A.         I received a phone call from Mr Robert T 

[4]      I will not set out the rest of that passage but it was plain he was talking about a particular phone call and it was to that phone call that the police officer prosecuting was referring when he asked the question:  “Can you recall, bearing in mind it” – meaning that telephone conversation.   The question contained a mistake because there is no suggestion in the evidence of Mr Coburn that it was in March.  He had referred to March in his evidence, but that was the time at which he had commenced his position.

[5]      Mr T   also relies on the fact that there had been a mistake in the conduct of the case before the Judge when the police opening the case, the prosecuting sergeant  had  said  the  incident  related  to  something  that  occurred  on  7  June. Ironically, this mistake seems to also be included in the Crown submissions in the appeal at [4], but the information is clearly set in July and all the evidence is related to 7 July.   The District Court Judge’s view was the mistake of the police in the opening was not fatal to the police case.

[6]      I am dealing with these two points together because, in my view, Mr T   has not adequately distinguished between the making of mistakes in the course of a trial, and whether or not the mistakes matter.  It is quite often that there are slips of one sort or another in a trial which like all other human activity is prone to error. The task of the Judge conducting the trial is to continue the trial when the error is minor and does not cause an injustice, and I am quite satisfied in this case that the District Court Judge when identifying the error of opening was correct to say that it was not fatal to the police case, and whether or not the District Court Judge noticed the reference to March 2006 in that question I have quoted to Mr Coburn, in my view, does not matter as it is quite clear that Mr Coburn was referring to the conversation that he had on 7 July.

[7]      Mr T   also argued that there was inadequate evidence of identity by challenging the evidence of the police as to the whereabouts of his brother being white-baiting,  and  as  to  Mr  Silas  Derritt  as  being  in  respite  care.    However, Mr Coburn’s evidence was that he recognised Mr Robert T   in the phone call on

7 July, as he was a regular caller to that office.  He had also previously advised that before  he  took  his  position  in  March  2006  with  the  local  MP  he  had  been  in Westport.  It was open to the trial Judge to be in no doubt as to the identity of the caller, and that it was Mr Robert T  .

[8]      Mr T   also relied on what he thought was a mistake by Sergeant Simon as to s 198 being under the Summary Proceedings Act 1957, not under the Crimes Act

1961,  and that is a detail again of no material consequence to the conduct of the trial and to the verdict of the Judge.

[9]      Overall, I am satisfied that Mr T   has not identified any material mistake in the conduct of the trial and that the conviction is sound.

[10]     Accordingly, the appeal against conviction is dismissed.

[11]     I will now hear Mr T   on whether or not he wishes to pursue the appeal against sentence.  (Judge speaks with Mr T  ).

[12]     Mr T   does not appeal against sentence.   He has, however, advised the Court that he will be, in due course, filing an application for leave to appeal.  That will be received and dealt with on another day.

Solicitors:

Raymond Donnelly & Co, Christchurch, for Respondent