The Queen v Robert Terry - [2000] NZCA 79

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 45/00

THE QUEEN

ROBERT TERRY

Hearing:	25 May 2000
Coram:	Thomas J
Anderson J Panckhurst J
Appearances:	Appellant In Person S P France for the Crown
Judgment:	8 June 2000

JUDGMENT OF THE COURT DELIVERED BY PANCKHURST J

Robert Terry appeared in person with reference to this appeal against conviction and sentence for threatening to kill. The appellant was found guilty by a jury in Greymouth on 28 January 2000. On 10 February the trial Judge imposed a sentence of sixteen months imprisonment and declined leave to apply for release to home detention. The appeal appeared to be based on six significant grounds, to which we shall turn shortly. Various other matters were raised by Mr Terry but none of these were strictly relevant and, whilst we have considered them, they are not mentioned in this judgment.
The appellant was charged that on 15 March 1999 at Greymouth he did threaten to kill either one of two named police constables. The constables are stationed in Reefton, where Mr Terry also resides. The Crown case was that the threat was conveyed to an off-duty constable stationed in Greymouth, Constable Drake. He said he encountered the appellant in the street. A conversation ensued. His evidence was that in the course of it the appellant complained of the treatment received by his brother during an armed offenders squad call-out. Then he recounted that Mr Terry said:
By Christmas time there would be a police officer laid out on a concrete slab. This is not a threat. That is a promise. That police officer would be either Michael Beaver or Mark Kennedy.

Constable Drake further gave evidence that the appellant said he knew another officer was responsible for breaking his brother’s ribs, that this officer would receive a visit from persons armed with steel pipes, who would deal with him. At another point there was reference by Mr Terry to his having contacts within the prison, persons who would do the job for the sum of $5000, and reference to firearms, specifically a .22 rifle. There was also a comment to the effect that the appellant would front up, admit the offences and happily serve time for them. Constable Drake took the threatening remarks seriously and accordingly went to the police station and prepared a report for his superiors.

The appellant gave evidence in his own defence. He agreed a conversation had occurred on the street in Greymouth between himself and Constable Drake, however he said the date was 16 and not 15 March. He further agreed that the conversation included reference to a concrete floor (not slab) and steel bars, but this in the context of his complaint about the treatment received by his brother on the earlier occasion. Specifically, Mr Terry said his brother sustained broken ribs at the time of the armed offenders operation, was arrested and taken to Greymouth and placed in a concrete cell despite his injuries. Also, he…

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 The Queen v Robert Terry

Details

AGLC: The Queen v Robert Terry [2000] NZCA 79
Case: [2000] NZCA 79
Decision Date: 8 June 2000

CaseChat Overview and Summary

In the case of The Queen v Robert Terry, the appellant contested his conviction and sentence for threatening to kill two police constables. The case was heard in the Court of Appeal of New Zealand, where the appellant represented himself, and the Crown was represented by S P France. The appellant was found guilty by a jury in Greymouth on 28 January 2000, and on 10 February, the trial judge imposed a sentence of sixteen months imprisonment, rejecting the appellant's application for release to home detention. The appeal against conviction and sentence was based on several grounds, including the withdrawal and relaying of informations, the composition of the jury, alleged breaches of the New Zealand Bill of Rights Act 1990, inconsistencies in the evidence, the trial judge's summing up, and the severity of the sentence.

The court examined whether the withdrawal and relaying of informations were appropriate, considering that the first information was withdrawn without a determination on its merits. The court found that the subsequent informations were correctly laid, and the appellant's argument was without substance. The court also considered whether the trial proceeded irregularly with a jury of ten, but concluded that the appellant's consent and the statutory provision authorised the course followed. The court rejected the appellant's claim that he was not given his rights under the New Zealand Bill of Rights Act 1990 at the time of his arrest, as the arresting officer's evidence contradicted this assertion. The court further examined inconsistencies in the evidence of the witnesses, noting that the jury still accepted Constable Drake's evidence and disbelieved the appellant's account. The court held that the trial judge fairly summarised the cases, and the inconsistencies were adequately explored by the appellant before the jury. The court also dismissed the appellant's argument that the trial judge failed to draw the inconsistencies to the attention of the jury, finding that the judge's summing up was appropriate in the circumstances.

The court rejected the appellant's remaining ground of appeal concerning the severity of the sentence, noting that the sentence imposed was well within the appropriate range, considering the seriousness of the offence, the appellant's particular remand background, and relevant aspects of his personal circumstances. The court dismissed both the appeal against conviction and the appeal against sentence.

The court's judgment delivered by Panckhurst J concluded that the appellant's appeal against conviction and sentence was dismissed, and the conviction and sentence imposed by the trial judge were upheld.

Orders