The Queen v Robert Terry

[2000] NZCA 79

IN THE COURT OF APPEAL OF NEW ZEALAND CA 45/00

THE QUEEN

V

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

1. 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.

2. 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.

1. 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 claimed, the conversation touched upon a newspaper article concerning a person in possession of a .22 rifle.  He continued:

   What I maintain Mr Drake has done, he has taken aspects of the conversation we had and put it into his own context.  I did not threaten Mark Kennedy or Michael Beaver.  I was upset at the way my brother was treated.

Hence, in relation to the sole and crucial issue in the case there was a straight conflict of evidence.  Plainly, given the verdict, the jury accepted Constable Drake’s evidence and rejected Mr Terry’s account.

1. Against this background we turn to the grounds of appeal, as we understand them.  Mr Terry was arrested on 25 March 1999 when one information was laid in which he was charged with threatening to kill either one of the two constables.  Subsequently this information was withdrawn with the leave of a District Court judge.  Two new informations were substituted, one each in respect of the different constables.  But at trial the Crown preferred an indictment which contained one count charging that the appellant threatened to kill one or other of the two officers.  Clearly this was the appropriate charge since there was only one threat, albeit directed at alternative persons.  Mr Terry challenged what had gone before, in particular the withdrawal and the relaying of two new informations.  In law, the withdrawal of the first information was no impediment to the laying of the two informations which were substituted, since there had been no determination of the matter on its merits.  Accordingly this argument was without substance.

2. The trial originally commenced on 27 January 2000.  However during the course of that day the jury was discharged on account of its members hearing irrelevant matters.  When a fresh jury was empanelled the following morning the supply of available jurors was exhausted with only ten jury members having been found.  The appellant raised this circumstance as a ground of appeal.  However, it is evident from the trial transcript that the express consent of both the Crown and Mr Terry was obtained before the trial proceeded with a jury of ten persons.  In the course of his submissions Mr Terry acknowledged this, but also explained the circumstances which prompted him to give consent.  In the event there was no irregularity since s374(A) Crimes Act 1961 authorised the course which was followed. 

3. Mr Terry alleged in his evidence that he was not given his rights, in terms of the New Zealand Bill of Rights Act 1990, at the time of his arrest on 25 March 1999.  However the arresting officer gave evidence before the jury to this effect:

   I advised him of his rights and cautioned him and asked him if he wished to speak to me.  He said no comment.  As a result I arrested him on a charge of threatening to kill and then released him on summons to appear in court.

It follows that, even assuming Mr Terry’s recollection as given in evidence was correct, nothing adverse to him flowed from the breach for which he contends.  He maintained his right to silence and was released on police bail.  The complaint therefore is entirely empty and, in any event, the evidence of the arresting officer was that no breach occurred.

1. Next were certain inconsistencies in the evidence of Constable Drake and the arresting officer.  These concerned differences in the evidence of the witnesses at the preliminary hearing as compared to at trial.  For example the sergeant who arrested the appellant originally said the date of arrest was 15 April but at trial corrected this to 25 March.  Constable Drake gave different time estimates for the crucial street conversation at Greymouth.  Needless to say, every suggestion of a difference of this kind was extensively explored by Mr Terry before the jury.  Thus the credibility of these witnesses was put to the test.  Importantly the jury still accepted Constable Drake’s evidence and disbelieved the appellant.  Having had the benefit of hearing the evidence first hand, that was the prerogative of the jury, and that is the end of the matter.

2. A related ground of appeal was that the trial Judge in summing up did not draw the inconsistencies to the attention of the jury.  This is so.  However, the Judge fairly and appropriately summarised the Crown and defence cases, without elaboration.  It must be remembered that the trial was a short one.  It commenced at 11 am on Friday, 28 January and the verdict was delivered later that day.  In these circumstances we are satisfied the course adopted by the trial Judge was appropriate and accordingly this ground of appeal must fail.

3. At the preliminary hearing Constable Drake was cross-examined concerning another conversation he had with the appellant, in which the constable expressed certain personal views about how criminals might be dealt with.  These remarks were reprehensible and we do not condone them.  Mr Terry sought to cross-examine the officer concerning the conversation.  Hardly surprisingly the Judge disallowed that course, no doubt because the remarks made in a personal conversation on an unrelated topic were collateral and of no relevance to the issues which the jury had to decide.  We observe that Mr Terry, representing himself, was given more licence than normal in relation to the matters upon which he cross-examined.  In any event the limits of cross-examination was very much a matter for the trial Judge to assess in the climate of the trial.  He faced a difficult task and we are far from persuaded that his ruling to disallow cross-examination on this aspect was in error. 

4. The remaining ground of appeal is referable to the sentence imposed.  Before we turn to it, we add these brief comments concerning the guilty verdict.  On the basis of the relevant evidence before the jury the view they reached was hardly surprising, if not inevitable.  Constable Drake’s account of the crucial conversation was coherent and his actions immediately after it consistent with those to be expected of a police officer in the circumstances.  By contrast, Mr Terry’s evidence was implausible.  Although only one criticism was directed at the summing up of the trial Judge, we have perused its terms generally.  No fault was to be found, indeed it is quite apparent that despite the difficulties he encountered throughout the conduct of the case, the summing up was entirely fair to both sides.  In these circumstances we dismiss the appeal against conviction.

5. The sentence imposed, sixteen months imprisonment, was intended to reflect the seriousness of the offence (involving as it did a threat against police officers from the appellant’s home town), the particular remand background including the circumstance that Mr Terry had spent time in custody in relation to offences upon which he was acquitted at another trial, and relevant aspects of his personal circumstances.  A dominant consideration was that the trial Judge had sentenced the appellant in August 1998 for threatening to kill a local body officer.  The sentence imposed was nine months imprisonment.  In all the circumstances a sentence of sixteen months imprisonment for this offence was well within the appropriate range.  The appeal against sentence is also dismissed.

Solicitors:

Appellant In Person

Crown Law Office, Wellington, for Respondent