The Queen v Terry - [2007] NZCA 260

IN THE COURT OF APPEAL OF NEW ZEALAND
CA378/06
[2007] NZCA 260
THE QUEEN
v
ROBERT FRANK TERRY
Hearing:17 April 2007

Court:William Young P, Potter and Fogarty JJ
Counsel:Appellant in Person

S B Edwards for Crown

Judgment:26 June 2007 at 3 pm

JUDGMENT OF THE COURT

ALeave out of time to appeal is granted.
BThe appeal is dismissed.

REASONS OF THE COURT

(Given by William Young P)
Introduction
[1]       On 11 May 2006, the appellant was arraigned in the District Court at Greymouth on a charge of threatening to kill the Hon Phil Goff. He pleaded guilty. Judge Saunders convicted and discharged the appellant and directed him to enter into a bond to keep the peace. The appellant consented to the making of the latter order. He now seeks to appeal, out of time, against conviction and sentence.
[2]       The appellant had earlier stood trial on the same charge but Judge Saunders had, on the application of the appellant’s then counsel, declared a mistrial and discharged the jury.
An extension of time?
[3]       We are prepared to, and do, extend time for the filing of the appeal; this because it appears that the appellant had initially sought to appeal within time.
The conviction appeal
[4]       The conviction appeal is based on two complaints: first, that before the aborted trial, Judge Abbott had incorrectly ruled that Mr Goff not be required to give evidence; and, secondly, that Judge Saunders ought not to have discharged the jury.
[5]       The first complaint arises in this way. The appellant raised at a pretrial conference the question whether the Crown would or should call Mr Goff to give evidence at the trial. The prosecutor indicated that Mr Goff would not be called and that there was no need to do so. The Judge agreed that this was so and noted the file accordingly. He appears to have treated Mr Terry as having applied for an order under s 368 of the Crimes Act 1961 requiring the Crown to call Mr Goff. We approve of the approach adopted by the Judge. Given that Mr Goff was not directly involved in the events which were the subject of the charge, there was no occasion for the Judge to make an order against the Crown under s 368. This ground of appeal fails.
[6]       The second point also does not warrant allowing the appeal. There had been an agreement between counsel that certain evidence would not be led. Not knowing of that agreement, the trial Judge questioned a witness in a way which resulted in the evidence in question being given. The upshot was an application by the appellant’s counsel for a mistrial, an application which the Judge granted. Section 374(8) of the Crimes Act precludes review of the exercise of the discretion to discharge a jury. In any event, there is nothing untoward in the Judge’s discharge of the jury, which in fact was sought by the appellant’s then counsel. The appellant believes he would have been…

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 Terry

Details

AGLC: The Queen v Terry [2007] NZCA 260
Case: [2007] NZCA 260
Decision Date: 26 June 2007

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of The Queen v Terry was heard and decided. The appellant, Robert Frank Terry, was convicted in the District Court at Greymouth for threatening to kill the Hon Phil Goff. He pleaded guilty and was discharged with a direction to enter into a bond to keep the peace. Terry sought to appeal against his conviction and sentence, claiming the appeal was out of time. The appeal was based on two complaints: the first was regarding the decision not to call Mr Goff as a witness, and the second concerned the discharge of the jury. The Court found that the first complaint was unfounded as Mr Goff was not directly involved in the events, and there was no need for him to testify. The second complaint was also dismissed, as the judge's decision to discharge the jury was not improper and aligned with the appellant's counsel's request.

The appeal against the sentence was based on Terry's claim that he pleaded guilty based on a sentence indication that he would be discharged without conviction. However, this claim was unsupported by evidence. The Court allowed both parties to provide affidavits to substantiate their claims, but Terry's former counsel's affidavit did not support his complaint. Additionally, Terry was given an opportunity to present further material but chose not to. The Court also found that the judge was entitled to consider Terry's previous convictions for similar offences. Therefore, the appeal against the sentence was also dismissed.

Leave to appeal out of time was granted, but the appeal was dismissed in its entirety. The Court's decision was that the appellant's claims were not substantiated by evidence, and there were no grounds to overturn the conviction or sentence.

Orders