Terry v The Queen

[2004] NZCA 156

IN THE COURT OF APPEAL OF NEW ZEALAND

CA177/04

THE QUEEN

v

ROBERT FRANK TERRY

Hearing:19 July 2004

Coram:Anderson P
Glazebrook J
Hammond J

Appearances:  R F Terry in Person

M F Laracy for Crown

Judgment:22 July 2004 

JUDGMENT OF THE COURT DELIVERED BY ANDERSON P

[1]       This is an application pursuant to s144 Summary Proceedings Act 1957 for special leave to appeal against the dismissal by the High Court (William Young J) of Mr Terry’s appeal against conviction by the District Court (Judge Abbott).

[2]       Mr Terry applied to the High Court for special leave pursuant to s144(2) Summary Proceedings Act but leave was declined.  His present application is made pursuant to s144(3) which provides as follows:

(3)     Where the [High Court] refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after the refusal of the [High Court] or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by the rules of that Court, for special leave to appeal to that Court, and the Court of Appeal may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[3]       As s144(3) indicates, this Court has a discretion to grant leave but only in respect of a question of law and only if the question of law is one which, by reason of its general or public importance or for any other reason, ought to be submitted to this Court for decision. 

The District Court trial

[4]       The prosecution of Mr Terry commenced with an information alleging that he used a telephone for the purpose of disturbing with the intention of offending the recipient Tania Dewitt.  The authority for the offence, stated in the information, was the Telecommunications Act 1987 s8(2).  On 14 March 2003, a date to which Mr Terry had previously been remanded, the statutory reference was changed by substituting the year 2001 for the year 1987 and the section reference was changed to 111(2)(a).  It is to be noted that the 2001 statutory provision exactly replicates the 1987 provision.  That is, although the statutory reference was changed, the offence remained the same.

[5]       A copy of the information notes that the amendment was made in Court and that Mr Terry pleaded not guilty to the amended charge on 14 March 2003. 

[6]       In due course Mr Terry’s information was scheduled for a defended summary hearing on 12 November 2003.  He had in the meantime appeared in Court on another charge of misuse of a telephone which had a scheduled defended hearing date of 8 September 2003.  By a letter dated 28 August 2003 the Registrar of the District Court at Westport, where both defended informations were intended to be heard, informed Mr Terry that because a witness in the other case had fallen ill the present case would be rescheduled for hearing on 8 September 2003. 

[7]       When the case was called on 8 September Mr Terry took issue with the shortness of notice he had been given and sought an adjournment.  The District Court Judge declined the adjournment on the grounds that the hearing had been adjourned on two previous occasions and on the last occasion there had been an indication that the case might be brought on earlier.  Mr Terry asked for his request for an adjournment to be noted and then he elected not to cross-examine the only witness called in support of the prosecution, Ms Dewitt herself, and elected not to give evidence nor to call evidence himself.  The Judge then delivered a decision, orally, convicting Mr Terry and followed this with a six week sentence of imprisonment.

[8]       Mr Terry informed this Court that when he was taken into custody following sentence he wished to apply to the High Court for bail but that the prison authorities did not adequately facilitate the filing of a bail application.  This is one of his grievances in the case, along with his concern that an adjournment was not granted.

[9]       Mr Terry is also concerned about the adequacy of the identification of him as the person who made a telephone call to Ms Dewitt.  The evidential chain relating to identity included a letter faxed to a Member of Parliament, for whom Ms Dewitt worked, calling attention to a matter which has no present relevance in this case.  That letter, according to its terms including name and signature, clearly identified Mr Terry as the author.  This letter was given in evidence without objection.  Ms Dewitt testified that a person then telephoned her using the language on which the charge was founded and made reference to the faxed letter in terms plainly suggesting that the speaker was the author.  She said that she knew it was Mr Terry because he gave his name and she recognised the caller’s voice as someone to whom she had spoken on previous occasions.  Because she was not cross-examined she was not of course challenged in respect of this evidence.

[10]     The District Court Judge held that the evidence sufficiently established the identify of the caller as Mr Terry whose name and address, according to the information to which he had pleaded, was identical to the name and address on the faxed letter.  The Judge also held that the contents of the conversation satisfied the ingredients of the offence charged.

[11]     Mr Terry appealed to the High Court and in a reserved decision William Young J dismissed the appeal.  One matter of legal interest in his consideration of the appeal was the question whether the letter to the Member of Parliament was inadmissible on the ground that its production impeached or questioned the freedom of speech and debates or proceedings in Parliament, contrary to Article 9 of the Bill of Rights 1688.  William Young J held that to produce a document to prove that something was said or done in Parliament is a matter of historical fact and is not a questioning or impeachment of what was said or done in Parliament.  Though the fax may have been subject to parliamentary privilege, a matter which William Young J assumed without deciding as in effect a best case position for Mr Terry, there was nevertheless no proscribed impeachment or questioning.

[12]     In his courteously presented argument to this Court Mr Terry expressed concern over the District Court Judge’s refusal to grant an adjournment, citing in support before us a decision of Panckhurst J in the Greymouth Registry of the High Court, AP5/99, Brian Raymond Terry v The Police.  In that case Panckhurst J held that six days notice of hearing, along with the fact that discovery did not take place and that there was no challenge to the informant’s case may have led to a miscarriage of justice with the result that the conviction was quashed and an order for rehearing made. 

[13]     Mr Terry also raised the issue of freedom of speech in communications with Members of Parliament and the parliamentary privilege accorded by Article 9 of the Bill of Rights 1688.  He complained about a perceived denial of his bail rights following sentence and asserted that s43 of the Summary Proceedings Act 1957 had not been complied with.  That last matter refers to the fact of amendment of the charge and the statutory regime stipulated by s43 in such cases. 

[14]     In response Ms Laracy for the Crown submitted that the faxed letter was manifestly admissible on the basis explained by William Young J; that there was no evidence to suggest that s43 Summary Proceedings Act 1957 had not been complied with but, indeed, on the face of the Court record appeared to have been complied with; that in any event s43 did not apply because the offence in the information was not substituted by another offence, there had merely been a change to an inessential particular, namely the statutory reference.  Further, the issues of adjournment and bail raised no questions of law and certainly none that warranted a further appeal to this Court.

Discussion

[15]     Any question of law in relation to the faxed letter became moot upon Mr Terry’s production of a copy to this Court and his candid acknowledgement that he was the author of it.  But in any event the finding as to admissibility made by William Young J is so obviously correct as not to warrant a further appeal.  Each of the other matters either represent no question of law at all or certainly none of such general or public importance as to warrant a further appeal.  Thus, in relation to the matter of the faxed letter, there would be a discretionary reason for refusing special leave even if there were not a jurisdictional barrier.  But there is such a barrier in respect of all the matters raised by Mr Terry and special leave is accordingly declined.

Solicitors:

Crown Law Office, Wellington