R v Adams [1999] NZCA 48; [1999] 3 NZLR 144; (1999) 17 CRNZ 205 (19 April 1999)

Last Updated: 5 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA23/99

THE QUEEN

V

DONALD MICHAEL ADAMS

Hearing:	24 March 1999
Coram:	Richardson P Henry J Keith J Blanchard J Tipping J
Appearances:	W G C Templeton and M K Macnab for Appellant S P France for Crown
Judgment:	19 April 1999

JUDGMENT OF THE COURT DELIVERED BY HENRY J

[1] The appellant, Donald Michael Adams, was found guilty on 29 September 1998 following trial by Judge alone in the District Court at Hamilton on a series of charges which resulted in a sentence of 18 months imprisonment, suspended for two years, 6 months periodic detention, and supervision. He appeals conviction and sentence. Mr Adams faced an indictment containing no less than 16 separate counts alleging offences under s306 and s307 of the Crimes Act 1961 involving threats to kill, threats to cause grievous bodily harm, and threats to destroy or damage property. Six of those counts were framed as alternatives. He also faced two charges brought under the Arms Act 1983. He was found guilty on seven counts under the Crimes Act, and on both counts under the Arms Act. The remaining counts resulted either in a s347 discharge, or acquittals. All acquittals relate to what were expressed as alternatives to a more serious charge. At the outset the observation must be made that the Judge’s acquittals on those charges were not appropriate or in accordance with established practice. If the more serious charge is proved then no verdict is taken on the alternative. If the charges are of equal gravity, a verdict is still taken only on one of them. The practice, the reasons for it, and the relevant authorities are discussed in the Robertson edition of Adams on Criminal Law, Vol.2 Ch 5.11.01-02.
[2] An unusual feature of the trial was that the Judge was invited by both Crown and defence to read the reasons for an arbitration award made on 19 April 1995 in favour of Mr Adams in a dispute between him and the Police Department. The purpose was said to provide a background to the prosecution, but recognising that the document was inadmissible as to the truth of its contents. In his written reasons for his decision on the present charges, the Judge refers to the document and to its contents, but then goes on to record “as agreed these matters have been completely put to one side in any evidential sense”. We think the procedure was misconceived, and the document should not have been received by the trial Judge. This was a serious criminal prosecution, and was to be conducted in accordance with established procedures. Evidence is to be adduced only in the proper way, and documents which do not form part of the evidence have no part to play in the trial process. The dangers of misuse are obvious, and it is difficult to understand what purpose could be achieved from a perusal of this document if it had no evidential value. If “background” is relevant, then evidence, which is otherwise admissible, of those background facts can be given in the usual way.

Background

[3] The offences cover the period from 22 April 1997 to 31 July 1997. Mr Adams had grievances with the police which went back to 1986. He also had grievances with the Accident Compensation Corporation and the Inland Revenue Department; but apparently those were resolved in 1992. The problems with the police stemmed from a decision to decline his application to have his firearms licence extended by way of endorsement. The decision by the police was reversed on appeal to the District Court, and the circumstances relating to that formed the basis of the arbitration. The arbitration resulted in an award being made to Mr Adams of a substantial sum, but less than what he had claimed was the cost to him and his wife resulting from the dispute.
[4] Unfortunately arbitration did not resolve all matters, and in 1996 Mr Adams was involved in a further dispute with the police concerning the seizing of firearms on his yacht. This, and other grievances including those which were the subject of the arbitration, became the subject of correspondence from Mr Adams to the police and to the Minister. These ongoing problems resulted in the incidents which gave rise to the present offences.

First ground of appeal - the law

[5] Mr Templeton submitted that the Judge had misdirected himself as to the elements of the offences under s306 and s307. The submission related to the element of intention (mens rea) required to bring a threat within the purview of the criminal law. For present purposes it is sufficient to refer to s306. Section 307 is couched in similar terms, but relates to property destruction or damage. Section 306 provides:

Threatening to kill or do grievous bodily harm – Every one is liable to imprisonment for a term not exceeding 7 years who –

(a) Threatens to kill or do grievous bodily harm to any person; or

(b) Sends or causes to be received, knowing the contents thereof, any letter or writing containing any threat to kill or do grievous bodily harm to any person.

[6] The Judge said that “the making of a threat involved a communication to the actual person or to others of a serious intention to do ill towards that person. It is of the essence that it should be made with the intention of influencing the mind of the person to whom it is addressed”. Reliance was placed on R v Meek [1981] 1 NZLR 499, R v Cherri [1989] NZCA 133; (1989) 5 CRNZ 177 and Police v Goldie [1993] 2 NZLR 177. The last mentioned High Court judgment is only reported briefly in a Note. In his written synopsis, Mr Templeton argued that it is not sufficient to establish that the mind of the recipient of the threat was influenced, but that it had to be “unduly” influenced. In the course of the hearing the submission was reformulated, partly as a result of a consideration of the decision of the Supreme Court of Canada in R v Clemente (1994) 91 CCC (3d) 1, so as to require an intention to cause fear or to intimidate.
[7] It is important to go to the words of the statute. Section 306 does not contain any qualification to the words “threaten” or “threat”. In its ordinary meaning and in the context of the section, a threat is the expression of an intention to carry out the act threatened, namely to kill or to do grievous bodily harm to a person. The threat may be to declare unconditionally an intention to carry out an action. It may, and more frequently is, conditional in the sense that the act will not be put into effect if a particular demand is met. The element of intention, the mens rea which must accompany the actus reus (which is the making of such threat), is that the threat be taken seriously. It is unnecessary to introduce any further qualification. Such phrases as influencing the mind, instilling fear, or intimidating are generally used when the threat is conditional. In such cases, an intention to achieve those effects will demonstrate that the threat was intended to be taken seriously. The short enquiry is first, whether a threat (to kill) was made, and secondly if it was, did the maker intend it to be taken as a threat which may be carried out. It is well established that an actual intent to carry out the threat is unnecessary.
[8] In R v Meek the primary issue was whether mens rea was an ingredient of a s306 offence. The judgment of this Court delivered by McMullin J makes it clear that what was required was an intention to do the culpable act, namely the making of a threat (p.502 lines 15-16). When later referring to the essence of a threat being that it should be made with the intention of influencing the mind of the recipient and drawing on the early case of Wood & Barrow v Bowron (1866) LR 2 QB 21, McMullin J was speaking in the context of a threat which was conditional – there the accused was threatening to kill if his wife or children were allowed to leave the house, or if a police officer tried to enter. The true statement of principle is to be found at p.503:

It is inherent in the making of a threat that the words should be intended to be taken seriously, not necessarily by the person whose life or safety is threatened, but by the person or persons to whom it is addressed and whose conduct may be influenced by it.

[9] There is nothing inconsistent with this approach to be found in Police v Greaves [1964] NZLR 295 (a conditional threat constituted an assault), or in R v Cherri. In the latter case, Richardson J who delivered the judgment of the Court said at p178:

We were advised at the Bar that the jury returned with a question to the Judge seeking further directions as to the meaning of “threat to kill”, and after discussion in Chambers the Judge directed the jury broadly in the terms we have indicated, but emphasising that the words referred to must be meant seriously as a threat. We are satisfied that the jury could have been left in no doubt that in order to convict they had to be satisfied that the accused intended what she said as a threat to kill the detective.

[10] The formulation of the ingredient of intent in this way also accords with its application to other offences under the Crimes Act involving the use of threats, which are again generally concerned with conditional threats. Examples can be found in s160(2)(d) (causing death by threats of violence), s2(1) (assault defined), s234 (robbery), s238 (extortion). It is unnecessary to consider the statutory provisions of other jurisdictions where the corresponding wording differs. The Canadian case of Clemente relied upon by Mr Templeton does not conflict. As to the dispute in that case, namely whether what was needed was an intent to intimidate or instil fear as opposed to an intent that the threat be taken seriously, the Court, in a judgment delivered by Cory J, said at p3:

The requisite intent can be framed in either manner. The aim of the section is to prevent “threats’. In the Shorter Oxford English Dictionary, 3rd ed. (1987), “threat” is defined in this way:

A denunciation to a person of ill to befall him; esp. a declaration of hostile determination or of loss, pain, punishment or damage to be inflicted in retribution for or conditionally upon some course; a menace.

[11] Cory J went on to observe that it was impossible to think that anyone threatening death or serious bodily harm in a manner that was to be taken seriously would not intend to intimidate or cause fear. He concluded at p4:

Thus, the question of whether the accused had the intent to intimidate, or that his words were meant to be taken seriously will, in the absence of any explanation by the accused, usually be determined by the words used, the context in which they were spoken, and the person to whom they were directed.

[12] It follows therefore that in the present case the Judge did not substantially misdirect himself.

Second ground of appeal

[13] Mr Templeton examined each of the counts on which Mr Adams had been convicted, and challenged their correctness. Although not framed as such, because acquittals were sought the challenge must be considered as being based on s385(1)(a) – the verdicts were unreasonable or could not be supported having regard to the evidence. Before considering the particular counts, one matter requires comment. At the outset of his reasons, the Judge stated:

In reaching my decision in this case I first had to decide what actually happened – that is: to decide the fundamental or central facts of the case. This has been done within the framework of the basic arguments presented by both counsel for the prosecution and defence.

Once I had decided what actually happened I then had to decide whether those essential facts established and proved the essential legal ingredients of the individual charges. This in turn then leads to my verdicts which I will give shortly.

In reaching my decision about the facts of this case I have considered all the evidence that has been presented – both oral and physical. I have done this with the aim of being objective, careful, and impartial in my assessment.

[14] As a general statement that is unexceptional. The Judge however in determining the individual counts appears to have used, without apparent discrimination, the whole of the evidence, regardless of the count it related to. In a case where there are multiple charges, it is always necessary to exercise care to ensure evidence which is not relevant to one charge is excluded from a consideration of that charge. That can be significant where, as here, some charges relate to quite separate and distinct incidents occurring over a period of months, and involving the ascertainment of the accused’s intention on each particular occasion. Although in this case the various offences are to an extent linked and have a common thread, we have reservations whether those factors were sufficient, without closer evaluation, to proceed on the basis that all evidence was relevant and admissible on all charges. The question is not one of severance, but of admissibility.

Count 2 (threat to kill)

[15] On 22 April 1997 Mr Adams and his wife attended Mr Gibb, a former commissioned police officer but then employed as a legal advisor, at Police National Headquarters. The discussion centred on the firearms dispute, the inadequacy of the arbitration award, and the need for further compensation. The transcript of Mr Gibb’s evidence records the following:

Q. How was he behaving?

A. Throughout, he was – how should I say, a bit upset and a bit irritable. I think the presence of Mrs Adams caused him not to get too excitable and this went on for about, I don’t know, 40 minutes, maybe longer, and then we weren’t getting anywhere, and Mr Adams then stood up and I stood up, and I started to pick up my papers and then he said that, “Nobody would blame him” and I’m not quite sure of the words here, “Nobody would blame him or people would understand him if he filled his truck with diesel and fertiliser and put it in the basement”, and by that I understood him to be referring to the basement under Police National Headquarters, and the reason for that of course was that his bone of contention was with the police.

[16] This formed the basis of a charge of threatening to kill. In the course of argument, Mr Templeton responsibly accepted that it was open to the Judge to find that there was a threat to kill. The inference to be taken from the words, in context, is that Mr Adams was threatening to place a substantial explosive device in a building which he knew would be occupied by many people. It was contended however that it was unreasonable to conclude that the threat was intended to be taken seriously. As to that, Mr Adams had knowledge of explosives, and was displaying a keen sense of grievance held against the police which he was unable to have settled satisfactorily. The Judge had the benefit of assessing the circumstances of the matter, and of seeing and hearing Mr Adams. Allowing for the fact, stressed by Mr Templeton, that Mr Gibb was unsure whether the threat was serious, on balance we are satisfied it was open to the Judge to reach the conclusion he did. Some measure of concern arises from the reference to subsequent events, particularly a telephone call from Mr Adams to Police Commissioner Doone on 28 May seen by the Judge as assisting his inference of the necessary intention. In that conversation there was no direct reference to this incident of 22 April, although again there was mention of blowing up Police Headquarters. In our view that evidence is of doubtful relevance in establishing intention on the earlier date, but we are nevertheless satisfied this point is not sufficient to interfere with the verdict. The overall evidence strongly supports the inference that the threat was intended to be taken seriously. There was little point in making it otherwise, and there is no suggestion it was in any way a jocular remark. Mr Adams clearly was in a serious frame of mind throughout the discussion, and talking in a serious vein.

Counts 7 and 8 (threat to destroy property, threat to kill)

[17] These counts related to a letter dated 30 April 1997, addressed to Mr Trendle (Assistant Commissioner of Police). It begins:

Assistant corrupt officer, Mr Neville Trendle, corrupt officer or is it officer in charge of corrupt police. Your attitude to dealing with police corruption is abysmal. What is is it going to take to shake your building enough, five tonnes of nitro in the basement? Half a tonne of diesel? I don’t know what you bastards stand for any more.

[18] Mr Templeton submitted that the only threat was to the building, not people, but as with count 2 it is unreal to suggest that such a threat was not directed to people as well as the building. Again the real issue is whether that could be taken as a threat intended to be taken seriously. We see no significance in a later reference in the letter to “assaulting” the office with mountains of paper. That is not inconsistent with the earlier threat. The main argument propounded was that the quantities of explosive material were so exaggerated, that the threat could not be taken as serious. We do not agree. The Judge noted and took into account the exaggeration, and like him we do not see that reference to an excessive quantity as indicating the threat was not intended to be seen as real and serious. The threat was to blow up the building (and thereby kill people), not to use the precise quantity of explosive mentioned.

Counts 10 and 11 (threat to destroy property, threat to kill)

[19] The threat referred to in Count 10 was contained in a five page letter of 29 May 1997 addressed to Commissioner Doone, the passage reading:

...A sad sad saga was how Judge Graham described the situation. I don’t want to have to blow up 180 Molesworth St.....I don’t want to have to dramatically abduct you or the Police Minister to get my point across, that some of your staff are worse than criminals because they hide behind a uniform. I want a legal process – I want a legal consultation process approved by yourself that reflects the serious nature of what Lilly has done to my life. You can have it totally without media coverage or you can have it with all the bells and whistles...

[20] It is difficult to see how this can be construed other than as a threat to blow up the property (Police Headquarters), and consequently to kill people, if the consultation process demanded is not set up. Mr Templeton’s submission that the main purpose of the letter was to obtain an appropriate response to the demands for consultation misses the real issue. Obviously the primary purpose behind most conditional threats is to achieve some course of action – that is their very aim. The issue however is whether it is intended that the threat be taken seriously, and may be implemented if the demand is not met. The verdict is supported by the evidence.

Count 13 (threat to kill)

[21] On 5 June 1997 Mr Adams was speaking to an electoral agent at the Taranaki-King Country office of the then Prime Minister. In the course of discussion, also relevant to his ongoing problem with the police on the same subject matter, he said “what do I have to do to get some attention, do I have to shoot Lilly”. Superintendent Lilly had been directly involved in the police decision not to allow an endorsement to Mr Adams’ firearms licence, and featured in the arbitration.
[22] The first issue is whether, viewed objectively and in context, the words constituted a threat to kill Mr Lilly. To do so, they must be construed as meaning “If I do not get attention I will shoot Lilly”. The agent, Ms Wilkie, did not view the words in such a light, and thought Mr Adams was not angry but felt he wasn't getting help from people who could help him. Ms Wilkie was not connected with the police, and had no previous problem with Mr Adams. She did not find it necessary to report this aspect of the incident to the police, who were called because he had refused to leave the office. The “threat” was only disclosed in the course of her interview in relation to that complaint. In context, we do not consider the statement can be seen as a threat to kill. Further, we think the circumstances fall short of establishing beyond reasonable doubt that Mr Adams intended Ms Wilkie to believe he was seriously contemplating killing Mr Lilly. The statement has all the hallmarks of an upset man, using emotional and extravagant language, couched in terms of a question but not one to be construed as a statement of positive intention.

Count 16 (threat to kill)

[23] On 3 July 1997, Mr Adams had a telephone conversation with Superintendent Todd, then a ministerial officer stationed at Parliament buildings. The conversation was recorded, and the relevant portion reads:

I have not had a sleep – I have not had a wink of sleep all night. If I lose my wife out of all this someone is going to pay for it. When are those people at Police Headquarters going to answer my letters? I have been writing to them. What do I have to do to shift them? I know, I’ve got 60lbs of nitro-glycerine here and I am coming down and I will shift that building they call Police Headquarters. I know that they are trying to take my firearms license off me now, but they need not bother coming around here looking for guns, they are buried. All this is because of one cop who made some comment about me living in a flash house when he was only living in a state house.....All I want is the Minister to have an inquiry into this whole affair.

[24] As with counts 10 and 11, Mr Templeton’s main point was that the conversation was primarily directed to obtaining a ministerial enquiry into this affair. For the same reasons which apply to counts 10 and 11 this submission also fails to address the real issue. In addition it was suggested that the threat was a threat not to kill but to damage a building. That again ignores the reality of the situation and the likely consequence of damaging in that way a building known to be occupied by people.
[25] The Judge was entitled to conclude that both elements of the offence were established to the requisite degree.

Count 18 (possession of ammunition)

[26] On 31 July 1997 the police searched Mr Adams’ motor vehicle and located live ammunition for five different types of firearms. This resulted in a charge of unlawful possession under s51(1)(b) of the Arms Act 1983. Under s51(2) , the burden is on a defendant to prove the existence of some lawful purpose when in possession of such articles. The explanation given by Mr Adams was that the ammunition was in the process of being shifted for storage purposes. The Judge rejected the explanation, which he was entitled to do. Contrary to Mr Templeton’s submission, a fair reading of the reasons for judgment make that clear – the Judge did not proceed on the basis that to have ammunition in a car for the reason given by Mr Adams was not a lawful purpose. The claimed purpose behind the presence of the ammunition was not accepted, and possession was left otherwise unjustified.

Count 19 (possession of explosive)

[27] When the police searched Mr Adams’ property at Raurimu on 31 July 1997, they located a detonator and a detonator cord. They were in an envelope in a tea chest which was full of documents, next to an arms safe. In evidence Mr Adams said that the items had been acquired when he was employed some time previously in clearing rivers for tourism purposes. They had been left in the tea chest about December 1989, and he had no recollection they were still there at the time of the search. The charge was brought under s45(1) of the arms Act, which makes it an offence to be in possession of an explosive except for some lawful proper and sufficient purpose. Under subs (2), the burden of proving that justifiable purpose is placed on a defendant. Section 66 is relevant. It reads:

Occupier of premises or driver of vehicle deemed to be in possession of firearm, airgun, pistol, imitation firearm, restricted weapon, or explosive found therein – For the purposes of this Act every person in occupation of any land or building or the driver of any vehicle on which any firearm, airgun, pistol, imitation firearm, restricted weapon, or explosive is found shall, though not to the exclusion of the liability of any other person, be deemed to be in possession of that firearm, airgun, pistol, imitation firearm, restricted weapon, or explosive, unless he proves that it was not his property and that it was in the possession of some other person.

[28] The Judge dealt with this count quite shortly. He said:

On count 19 the accused says the detonator and detonator cord would have been acquired when he was employed in tourism at Whakatane or to clear explosives from the river. He had no recollection that the detonator was in his possession. It was found in an envelope in a tea chest full of documents next to the Arms Safe at his Raurimu address. The deeming provision (s66) puts him in possession.

While this charge was certainly not at the serious end of the spectrum the accused has failed, on the balance, to show a “lawful, proper and sufficient purpose” and a verdict of guilty will be entered.

[29] The basis upon which the finding of guilty was made appears to be that although he accepted the explanation, because Mr Adams was unable to depose to a justifiable purpose for possession as at July 1997, a conviction must follow. This approach poses something of a dilemma for a person who, as here, acquires and has possession of the item for a legitimate purpose but then genuinely forgets its existence until it is located some considerable time later, when the original purpose no longer pertains. When does the original justified possession cease to be justified?
[30] We heard limited argument on the elements of an offence under s45(1) and on the significance and effect of the deeming provision of s66 in such circumstances. However in the course of the argument Mr France responsibly agreed that in this present case there would appear to be good grounds for discharge without conviction. The consequences of a conviction for what on its face is a serious offence are not in our view warranted in these circumstances. There was a legitimate reason for acquiring possession of the detonator and cord, and although it can be said that the justification for continued retention no longer pertained, a genuine lack of knowledge of their existence in this particular situation creases to have any criminally reprehensible connotation.
[31] The reverse onus provision in criminal prosecutions and its correlation with the European Convention on Human Rights was recently considered by the English Court of Appeal in R v Director of Public Prosecutions, ex parte Kebilene & Ors (judgment 30 March 1999). In the circumstances the implications of that decision do not call for present consideration.

Sentence

[32] Mr Templeton accepted that the appeal against sentence could only be maintained if the Court were to set aside one or more of the convictions. In the event, as indicated above, we are setting aside two of the convictions – one of threatening to kill now resulting in an acquittal, and one of unlawful possession of an explosive resulting in a discharge.
[33] Mr Adams is aged 55 years. He has a previous minor offence for threatening to damage property, and in April 1986 was sentenced to 1 years supervision for possession of explosives. That sentence was completed satisfactorily. Importantly the sentencing Judge accepted that there was no intention actually to carry out the present threats, which were seen as “over the top” and made (in an unacceptable manner) to highlight concerns held by Mr Adams. Against that assessment, approximately one half of the sentence of periodic detention was, we are advised, served before the appeal process operated to stay its effect. Mr Adams also spent a short time in custody while on remand. Taking all factors into account, we think the ends of justice will be met if the balance of the term of periodic detention is remitted, leaving in place both the suspended sentence of imprisonment and the sentence of supervision with its conditions.

Result

[34] The appeal against conviction is allowed, but only in respect of count 13 of the indictment, that conviction is quashed with a direction that a judgment and verdict of acquittal be entered. We also allow the appeal against sentence on count 19, quash that sentence and instead discharge the appellant without conviction under s19 of the Criminal Justice Act 1985. In respect of the sentences imposed on the

remaining counts, the term of periodic detention is reduced to the period actually served, but in all other respects the sentences are confirmed.

Solicitors
Crown Law Office, Wellington, for Crown