Terry v The Queen
[2004] NZCA 48
•6 April 2004
IN THE COURT OF APPEAL OF NEW ZEALAND
CA460/03
THE QUEEN
v
ROBERT FRANK TERRY
Hearing:17 March 2004
Coram:Hammond J
William Young J
Chambers JAppearances: R F Terry in person
J C Pike for the Crown
Judgment:6 April 2004
JUDGMENT OF THE COURT DELIVERED BY HAMMOND J
[1] Following a jury trial in the District Court at Greymouth on 27 August 1998, Mr Terry was convicted of threatening to kill. The following day he was sentenced to nine months imprisonment.
[2] On 19 November 1998 Mr Terry’s appeal against conviction was dismissed by this Court in an ex parte judgment (CA304/98).
[3] Mr Terry has now sought a rehearing of his appeal in accordance with this Court’s decision in R v Smith [2003] 3 NZLR 617. He has prepared written submissions and supporting material which were lodged with this Court. He also appeared in person at the hearing and made submissions.
Background
[4] Mr Terry was involved in a dispute with a local authority about a rating sale of his property.
[5] The Crown case at trial was that on 5 January 1998 Mr Terry went to the Buller District Council Service Centre in Reefton. Whilst there he had a telephone conversation with that Council’s General Manager, a Mr Isaacs. During this conversation Mr Terry said that he would park a truck loaded with fertiliser and diesel outside the Council building in Westport, then detonate it in the style of the bombing of the Federal Building in Oklahoma City, in the United States of America. Mr Terry spoke of the need for a large coffin in which to bury the dead. He told Mr Isaacs that if he was not killed in the bombing he (Mr Terry) would get him later. The following day Mr Terry faxed Mr Isaacs a press clipping about the Oklahoma bombing.
[6] Mr Terry maintained that the exercise that he had been undertaking was simply to illustrate to Mr Isaacs what can happen when the line of communication between a citizen and government breaks down. He said the faxed press clipping was a furtherance of his attempt to educate Mr Isaacs about his role.
[7] In the result, Mr Terry was found guilty by the jury of threatening to kill.
The grounds of appeal
[8] Mr Terry has appeared (as is his right) for himself on this matter. The written submissions and documents he lodged with this Court are not ordered in the way that would be expected of legal counsel. We have approached the matter by considering the entirety of the material submitted by Mr Terry in an endeavour to isolate appeal points in more conventional form.
[9] It appears to us that Mr Terry makes two, and possibly three points. At the oral hearing before us he confirmed that the first two of these points are his central grounds of appeal.
[10] These three points, broadly put, are that Mr Terry says that he was charged with, and convicted under, the wrong section of the Crimes Act 1961; he says there is no, or no sufficient, proof that he made the telephone call on which the prosecution relied; and it may be (and we assume this is so, in Mr Terry’s favour) that he also asserts that the threats that he is said to have made were not intended to be taken seriously, or at least had some other purpose than one which would attract criminal consequences. We will take each of these points in turn.
Conviction under the wrong section
[11] It appears that an information was sworn in January 1998 alleging an offence of threatening to kill under “s326” of the Crimes Act 1961. The reference to s326 of the Crimes Act 1961 was an error. At the time Mr Terry was charged, the correct provision was s306(a) of the Crimes Act 1961. As we understand it, a second information was then sworn on 26 February 1998. Such a course is permissible under s157 of the Summary Proceedings Act 1957. This second information alleged that Mr Terry threatened to kill Mr Isaacs, and referred to s306(A) of the Crimes Act 1961. The reason for the “A” was a mechanical one – the entire information was typed in capital letters. This is apparently standard practice.
[12] Both the first and second informations were laid under s145 of the Summary Proceedings Act 1957, as Mr Terry was, from the outset, to be proceeded against indictably. Under s146(c) of that Act, s17 of the Summary Proceedings Act 1957 applies to informations issued under s145.
[13] Section 17 of the Summary Proceedings Act 1957 provides that “every information shall contain such particulars as will fairly inform the defendant of the substance of the offence with which he is charged”. (Emphasis added) That provision was fully canvassed by this Court in Police v Wyatt [1966] NZLR 1118 (CA). The Court there pointed out that the substance of the charge must vary according to the nature of the offence, and it is the essence or pith of the charge which must be revealed by the particulars, not the details relied upon to establish the charge.
[14] As to the inclusion of the statutory provision creating the offence in an information, in R v Cahill [1956] NZLR 383, Cooke J noted that the Court may have regard to any reference in the information to the section or subsection of any enactment creating the offence in considering whether the substance of the offence has been adequately stated. That said, s17 does not in terms require reference to a section as a particular which will fairly inform a defendant of the charge, although this Court has observed that it is better practice for an information to include such a reference (see R v Latu, CA262/01, 18 October 2001).
[15] Unfortunately, mistakes of no real consequence are sometimes made in informations. In the event that some irregularity or mistake does go unobserved in the course of the trial process, and is later seized upon by a defendant, s204 of the Summary Proceedings Act 1957 provides that
no information, complaint, summons, conviction, sentence, order, bond, warrant, or other document, and no process or proceeding shall be quashed, set aside, or held invalid by any [District Court] or by any other Court by reason only of any defect, irregularity, omission, or want of form unless the Court is satisfied that there has been a miscarriage of justice.
[16] In Hall v Ministry of Transport [1991] 2 NZLR 53, 58 (CA) Cooke P said the correct approach to s204 is to give “full effect to the ordinary and natural meaning of the language of the section”. Of course, if the proceedings are so defective as to amount to a nullity, then there is nothing for s204 to protect.
[17] It follows that no objection at all could be taken to these informations – as informations. The one defect in the first information was validated by s204, but was in any event rendered irrelevant by the second information.
[18] That said, as we have noted, Mr Terry was to be proceeded against by indictment. Depositions were held on 3 April 1998. Section 149 of the Summary Proceedings Act 1957 provides, in that respect
No objection shall be taken … to any information, … to which this Part of this Act applies for any alleged defect in substance or in form.
[19] At that point in time, the only remedy available to Mr Terry would have been that provided by s149 itself – viz, to request an adjournment of the preliminary hearing by alleging that he had been “deceived or misled”. But that remedy was not available, on the facts, because the particulars given in the second information were correct.
[20] Section 149 must also be read with the powers of committal for trial in s168(1) of the Summary Proceedings Act 1957. That section allows committal of a defendant if the evidence adduced at the preliminary hearing is “sufficient to put the defendant on his trial for an indictable offence”. The indictable offence need not be that to which the information relates (Daemar v Gilliand [1979] 2 NZLR 7). And, as in this case, once a person has been committed for trial, s345 of the Crimes Act 1961 provides that an indictment may be preferred for “any charge or charges founded on the evidence disclosed in any depositions taken against such person or persons”.
[21] Thus, once the indictment is filed (and the trial file discloses that a copy of the indictment was sent to Mr Terry on 17 May 1998), so long as the charge(s) are founded on the evidence disclosed in the depositions, any inaccuracies in the (first) information become quite irrelevant (albeit that they were already largely so).
[22] With these principles in mind, we return to the facts of this case. The essential point is that, right from the outset, the informations advised Mr Terry that he was charged with threatening to kill Mr Isaacs on 15 January 1998 at Reefton. The same allegation is contained in the indictment. That allegation has never altered, from the time of the first information to this day. Mr Terry was in no way misled or prejudiced, and right from the outset he understood precisely the nature of the charge against him. Mr Terry did not take objection at the point the relevant legislation provided for him to do so. In any event such an action would have been a waste of time: any irregularities were plainly cured by the statutory provisions to which we have referred above.
[23] This appeal point is dismissed.
Unreasonable verdict
[24] Mr Terry’s second ground of appeal is that, he says, the Crown failed to establish, to the criminal standard, that he was at the Reefton Service Centre on 5 February 1998, or that he was involved in a telephone call with Mr Isaacs that day. The evidence on this point was as follows. Mr Isaacs gave evidence that he was in his office, and he had a Mr John Poynter, the Treasurer of the Council, with him. Mr Isaacs asked Mr Poynter to remain in his office while he called Mr Terry, because he thought there might be difficulties. Mr Isaacs said, “I phoned Mr Terry at the Service Centre and spoke to him”, and that it was during the course of this conversation that the threats to which we have referred were made. Mr Poynter also gave evidence. He said Mr Isaacs beckoned him over to the telephone and held the ear piece so that both he and Mr Isaacs could hear. He claimed to have heard Mr Terry say at the other end of the telephone “you’ll need a bloody big coffin”. Neither witness gave evidence as to how they identified Mr Terry, however Mr Terry in his cross-examination of the witnesses agreed that the conversation had taken place between Mr Isaacs and himself, and cross-examined on that basis. Mr Terry did not give evidence contradicting the prosecution’s evidence on the content of that conversation.
[25] It follows that there was evidence that, if the jury accepted it, could establish that there was a telephone conversation of the character alleged between Mr Isaacs and Mr Terry that day. It was for the jury to decide whether it accepted that evidence, and to the requisite standard. Plainly it must have accepted that evidence on this point. This appeal point, too, is dismissed.
Nature of the threat
[26] In fairness to Mr Terry, it may be that a fair (if strained) reading of all of his written material indicates a third appeal point. Mr Terry appears to assert that he did not intend to threaten Mr Isaacs. His explanation relates to his frustration with “errors” made by “judicial decision makers” in relation to the dispute about his farm, and that he was not “threatening”, but “educating” Mr Isaacs. We have not been provided with a copy of the Judge’s summing up (because there is no specific appeal point in respect of this issue). In the absence of a complaint, we proceed on the basis that there would have been the standard direction that the Crown must prove that the threat was deliberately made and was made with the intention of influencing the mind of the person to whom it was made – in other words with the intention that that person should take it seriously. It is not necessary for the Crown to prove that the accused actually intended to carry out the threat. There was evidence in this case on which the jury could take the view that those necessary elements of the offence were met. Accordingly this appeal point – if such it be – is also dismissed.
Result
[27] The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington
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