The Queen v Terry

[2006] NZCA 43

IN THE COURT OF APPEAL OF NEW ZEALAND

CA154/05

THE QUEEN

v

BRIAN RAYMOND TERRY

Hearing:21 March 2006

Court:Hammond, Chambers and O'Regan JJ

Counsel:Appellant in person

E M Thomas for Crown

Judgment:23 March 2006 

JUDGMENT OF THE COURT

The appeals against both conviction and sentence are dismissed.

REASONS

(Given by Hammond J)

Introduction

[1]       The appellant and his brother Robert Frank Terry, were convicted after a trial before a Judge and jury of 12 in the District Court at Greymouth on 24 May 1996 on a charge of assault with intent to injure (s 193 of the Crimes Act 1961).

[2]       Mr Robert Terry was sentenced to 12 months imprisonment and Mr Brian Terry to 15 months imprisonment.

[3]       Appeals by these two men were dismissed by this Court in an ex parte judgment (CA206/96 and CA207/96), on 1 October 1996.  They then sought rehearings of their appeals in accordance with the decision of this Court in R v Smith [2003] 3 NZLR 617.

[4]       Mr Robert Terry’s appeal (CA490/04) was dismissed by this Court by a judgment given on 20 April 2005, after an oral hearing.

[5]       The disposition of Mr Brian Terry’s appeal has been delayed by reason of certain matters that had been raised by him as to possible new evidence associated with the primary Crown witness at trial.  Mr Terry’s appeal was adjourned to enable an affidavit to be filed.  (See the Minute of this Court dated 25 November 2005).  The concern of the Court was to see that Mr Terry had every opportunity to present such further evidence as might be relevant, and admissible, to the disposition of his appeal.

[6]       Mr Terry has now prepared written submissions which were lodged with the Court and made available to the Crown, and he has appeared in person to make submissions at the hearing.  What Mr Terry has not done - as the Court directed in its Minute of 25 November 2005 - is to obtain an affidavit, in proper form, and file and serve it, as to the proposed new evidence. 

[7]       In the result, we have considered the matter as if there had been a proper affidavit.  This indulgence is not to be taken as an indication that this Court will follow that course in other cases.

The grounds of appeal

[8]       As so often occurs in cases concerning appellants in person, Mr Terry’s submissions are not easy to follow.  We think we do Mr Terry no injustice if we reorder the basis of the appeal under four heads:  a summing up point; the apparent suggestion of possible coercion of a Crown witness; the so-called “new evidence” witness; and a concern about the lack of forensic investigation of a pink cotton t-shirt.  We will take each of these heads in turn.

The summing up

[9]       Mr Terry complains that Judge Holderness “stated in summing up that Mr Wilson, the primary Crown witness, was an honest, credible, and reliable witness”.  We have the summing up.  What the Judge said, in addressing the Crown case, was that the Crown had submitted that Mr Wilson was such a witness.  The Judge did not himself express any view as to how the jury should view that witness.  Mr Terry now accepts this.  This appeal point is accordingly dismissed.

Coercion of Crown witness

[10]     At paragraphs 2 and 3 of his submissions, Mr Terry asserts that Mr Wilson (the principal Crown witness) had committed certain offences with respect to his then partner, Ms Mason.  But all the matters attributed to Mr Wilson occurred well after the trial.  It is therefore impossible to argue that these events somehow affected the evidence she gave at trial.  This appeal point is also dismissed.

The new evidence

[11]     This is said to reside in matters raised in a statement from one Brian Neville Turner.  This statement was prepared by a private investigator employed by Mr Terry.  As we have noted, the statement was (improperly) not reduced to affidavit form.  The so-called “evidence” is an effort to impugn Mr Wilson, who was the victim, and chief Crown witness in the case.

[12]     In that statement Mr Turner makes reference to an anonymous letter he had sent to Mr Robert Terry in August of 1999.  Mr Turner refers to “a list of events that I know Robert Wilson was responsible for”, when Mr Turner lived next to Brian Terry.  These all go to a series of unneighbourly acts supposedly committed by Mr Wilson.  This included things like dumping rubbish, the destruction and theft of property, and leaving stock fences open then reporting wayward stock to the local ranger.  Put simply, generally acting so as to cause the Terrys annoyance and discomfort.

[13]     The “evidence” cannot be received by the Court.  It is not in affidavit form.  Even if it were, most of the so-called evidence is hearsay (conveying statements as told to Mr Turner by his wife and Mr Wilson’s wife), and the matters raised are collateral.  They seek to introduce into Court a series of incidents which are not related to the incident in respect of which the charges were laid, other than in the most general sense of establishing what was in any event before the Court in other admissible evidence:  that there had been bad blood between the complainant and the Terrys.

[14]     This appeal point too is dismissed.

ESR evidence

[15]     The complaint here is exactly the same as Mr Robert Terry’s complaint in CA490/04.  There is nothing that can be usefully added in this appeal to what has already been said in the judgment of this Court in Mr Robert Terry’s appeal, at [22] to [25] inclusive.  In short, that there was no request for forensic examination of the particular garment; even if there had been, it would not have assisted in determining who was the aggressor on the particular occasion in question.

[16]     This appeal point too is dismissed.

The sentence appeal

[17]     At the hearing Mr Terry confirmed that he did not wish to pursue this matter.

[18]     The appeal against sentence is also dismissed.

Solicitors:
Crown Law Office, Wellington