	Home \| Databases \| WorldLII \| Search \| Feedback Court of Appeal of New Zealand

Home | Databases | WorldLII | Search | Feedback

Court of Appeal of New Zealand

You are here: NZLII >> Databases >> Court of Appeal of New Zealand >> 2006 >> [2006] NZCA 144

The Queen v de Montalk [2006] NZCA 144 (27 June 2006)

Last Updated: 13 July 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA115/04

THE QUEEN

v

MYLES JAMES de MONTALK

Hearing: 19 June 2006

Court: Hammond, Chisholm and Cooper JJ

Counsel: Appellant in person
C H Toogood QC for Crown

Judgment: 27 June 2006

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS
(Given by Hammond J)

Introduction

[1] In March 2004 Mr de Montalk stood his trial before Judge Davidson and a jury of 12 in the District Court at Hamilton. He was charged with threatening to kill Mr Gary Gotlieb, an Auckland barrister. The jury returned a verdict of guilty. A conviction was entered on 8 March 2004.
[2] On 2 April 2004 Mr de Montalk was sentenced to 16 months imprisonment. He has served his sentence of imprisonment.
[3] Mr de Montalk appeals against his conviction, on a lengthy list of grounds, most of which, on closer examination, over-lap.

Background

[4] The appellant has raised a number of procedural issues, prior to this appeal coming on for hearing. For reasons which will become apparent later in this judgment, it is appropriate to record the course of those matters.
[5] After the timeous notice of appeal was filed events appear to have followed the usual course for such appeals in this registry.
[6] Given that there appeared to be concerns about the summing-up, the Court of Appeal registry called for a copy of the summing-up from the trial Judge, and on 2 September 2004 a Judge of this Court determined, in accordance with the Crimes Act 1961, that Mr de Montalk should have an oral hearing.
[7] According to the registry date stamp, on 16 February 2005 the registry received a letter from Mr de Montalk dated 12 July 2004. He enquired as to the status of two appeals.
[8] One was an unrelated matter with respect to a motor vehicle.
[9] The second concern was with respect to this appeal. Mr de Montalk said he required (unspecified) documents "as soon as possible as [to] the hundreds and hundreds of pages of false statements by judges, denial of justice by judges, abuse of law by judges and crimes of Gary Colin Gotlieb supported by the judiciary in a conspiracy". He advised that if this was not forthcoming, he intended to apply to the Supreme Court "due to this blatant criminal activity". He said that criminal charges were to be filed against all judges.
[10] The registry responded that day by letter to Mr de Montalk. He was advised that the registry had been having difficulty sending anything to him because it had no address for him; neither had Mr de Montalk’s lawyer (Mr Speed) on the other appeal.
[11] It is plain from the registry’s letter that a casebook had been compiled, in the usual way, for this appeal but it had not been able to be forwarded to Mr de Montalk because of the lack of address. When his letter was received, the registry forwarded (that day) a copy of the notice of appeal and covering letter which had been received by the Court, a copy of the notice of filing, copies of the trial file request and request for summing-up, and the casebook for the appeal. Mr de Montalk was advised that a fixtures manager would be in contact with him to set a fixture date.
[12] On 2 March 2005 Mr de Montalk was advised by letter of possible dates for the hearing of this appeal in Auckland, being 23 May, 13 June, and 14 June 2005.
[13] It is not entirely clear to us whether there was any communication from Mr de Montalk at this point. There appears to be nothing on the file from him in response to this letter. In the event, that does not matter because a Deputy Registrar wrote to Mr de Montalk at his nominated address indicating that a fixture had been allocated for the hearing of the appeal for Tuesday, 24 May 2005.
[14] The appeal was duly called on that date before Anderson P, Robertson and Salmon JJ. Mr de Montalk appeared in person. He objected to Salmon J sitting on the case. Salmon J stood down, and the panel was reconstituted that day as Anderson P, Robertson and Williams JJ.
[15] Mr de Montalk then complained about lack of documentation. He told the Court he had not received a copy of the case on appeal. The Court provided him with a copy of the case on appeal and adjourned the appeal to a date to be fixed. The President directed that that date should be far enough in advance for Mr de Montalk to "thoroughly peruse the case and formulate his grounds of argument as well as applying for any ancillary orders".
[16] On that occasion, Mr de Montalk also signalled that he wished his appeal to be dealt with by a Full Court. The President indicated that on receipt of a proper application (and Mr de Montalk was advised as to how to go about this) the President would give that matter consideration.
[17] Mr de Montalk also complained about his inability to get a copy of a CD recording of the words forming the subject of the charge or charges. The Crown undertook to forward a copy to Mr de Montalk. The President recorded in his minute that Mr de Montalk had confirmed his address for this purpose.
[18] It would appear that thereafter Mr de Montalk made an application under s 389 of the Crimes Act 1961. That application was dealt with by Chambers J in a minute of 6 July 2005. It seems that Mr de Montalk was seeking to have included in the case on appeal a great deal of documentation relating to various bail hearings. He also made what the Judge recorded as "outrageous allegations" against the President and Registrar of this Court. The minute indicated that if Mr de Montalk could demonstrate how the documents he was seeking were relevant to the appeal, the decision not to include them in the case on appeal could be reconsidered, but that he would have to file a moderately worded memorandum on this matter before that exercise was undertaken.
[19] Mr de Montalk thereafter filed what the President recorded to be "applications of various sorts". The documents contained inappropriate "indeed scandalous material" (Anderson P), and the President directed that the documents were to be removed from the court file. Mr de Montalk was advised to engage counsel, and he was further advised that inappropriate material would not be permitted to remain on the file.
[20] The appeal was then listed again, and called, on 16 February 2006 before William Young, Potter and Rodney Hansen JJ. Mr de Montalk chose not to attend on that occasion. He had filed a document styled "application to refer appeal directly to the Supreme Court of New Zealand". The Court directed that it had no jurisdiction in respect of that document, and that if Mr de Montalk wished to challenge his conviction directly in the Supreme Court he must seek the leave of that Court to do so. This Court further directed that a hearing date be allocated in Auckland by the registry "at least three months out" to give Mr de Montalk time to seek whatever leave it was he thought he was entitled to pursue from the Supreme Court. Mr de Montalk was further advised that if he wished to prosecute his appeal in this Court he should provide a document in temperate language setting out the basis upon which he sought to challenge his conviction.
[21] A further appeal date was duly allocated before this panel at Auckland on Monday 19 June 2006.
[22] On 2 June 2006 it was indicated to Mr de Montalk (by a minute of Hammond J) that his appeal would be reached at 2.15pm on 19 June 2006, and that he did not have to attend until that time, so that he would not be unnecessarily inconvenienced.
[23] In the meantime, on 19 May 2006 Mr de Montalk had returned his copy of the casebook because, he said, his name had been misspelled. The minute of 2 June 2006 recorded that there would be an order at the hearing correcting the misspelling (and such an order was made that day) but that the casebook would not be reprinted (because of the obvious public expense). His case on appeal, which he had returned to the Court of Appeal, plastered with scandalous observations, was returned to him. Mr de Montalk was reminded that scandalous material would not be received, and that he had not yet filed written submissions. Timetable orders were made in that respect.
[24] Mr de Montalk’s response to this minute was to forward a letter (dated 6 June 2006) to the registry accusing Hammond J and Mr Toogood QC of "conspiracy", and outlining complaints he had made (he said) to the United Nations Human Rights Committee and to the International Islamic Justice Committee. He said he was "appealing" to the Supreme Court. He enclosed a copy of a document which purports to be an application for leave to appeal to the Supreme Court of New Zealand under s 13 of the Supreme Court Act 2003 "for leave to appeal to that court due to the immense importance of the matter to all New Zealanders and to the establishment of law in New Zealander (sic)." Twenty-two points of appeal (many of an offensive character) are made. But what is sought to be appealed is not apparent. There was then no judgment of this Court on his appeal.
[25] The Court issued a further minute on 13 June 2006 confirming that the appeal would be called at 2.15pm on 19 June 2006. The minute concluded, "It is still open to Mr de Montalk to appear and make whatever submissions he wishes to make enlarging on the points raised in his notice of appeal". He has in fact appeared in person today, and he has made forceful submissions.
[26] It will be apparent from the forgoing, that for over a year now since the first call of this appeal, Mr de Montalk has persisted with a gamut of expostulations (many of an utterly scandalous variety), despite the Court having advised him as to what steps he ought to take to pursue his perceived objectives, none of which have been followed up on, by him.

The Crown case against Mr de Montalk

[27] Mr Gotlieb is an Auckland barrister who works from an office at 22b Jervois Road, Ponsonby.
[28] At all times relevant to the prosecution, Mr de Montalk was living at a street address of 101 Rosser Street in Huntly. He had a telephone at that address subscribed in his name.
[29] Mr Gotlieb had a long association with Mr de Montalk, with respect to various legal matters. Over a period of several years Mr de Montalk voiced a number of grievances to Mr Gotlieb arising out of these matters.
[30] The Crown case was that between 5.30am and 10.40am on Saturday 9 August 2003, Mr de Montalk made 21 separate telephone calls from his home address to Mr Gotlieb’s telephone at the Jervois Road office. Mr de Montalk left messages. On some occasions, he identified himself by name. The messages were progressively more threatening both in nature and context. In one message he said, "I am going to shoot you Gotlieb", and in another, "You won’t know where, you won’t know when, you’re mine, Gotlieb". Mr Gotlieb was told that he would know what it was like to lose a daughter. Mr Gotlieb had a daughter, then 15 years of age.
[31] During that same period, four separate telephone calls were made from Mr de Montalk’s telephone to Mr Gotlieb’s home address by a male caller. On each occasion, the caller spoke to Mr Gotlieb’s wife, and is said to have aggressively asked for Mr Gotlieb.
[32] As a result of these threats, Mr Gotlieb made a complaint to the police. On 14 August 2003 detectives and members of the armed offenders squad executed a search warrant at Mr de Montalk’s home address. During that search an Auckland telephone book was located with both of Mr Gotlieb’s telephone numbers underlined. Mr de Montalk was interviewed by detectives. He refused to answer any questions relating to this charge.

The course of trial

[33] The trial Judge recorded in his summing-up that Mr de Montalk had made a "5 point" response to the charge, and we think that analysis fairly reflects Mr de Montalk’s concerns on the merits of this case.
 He contended that the Crown had failed to prove beyond reasonable doubt that he made the calls the Saturday morning when the calls were made from the landline associated with the Huntly address; and he said that Mr Gotlieb’s voice identification was flawed. He apparently also contended that the landline was inoperative that weekend.
 Even if the Crown could prove the calls, he said it was not proved that they contained threats.
 He contended there was a serious issue as to the integrity of the calls themselves, and that the Crown had not proved that these were "pure and undoctored and not mixed and jumbled to achieve a more sinister nature".
 He contended that the Crown had not proved beyond reasonable doubt that there was either a direct or indirect threat to kill.
 He further contended that the Crown had failed to prove beyond reasonable doubt that he intended that the threats would be taken seriously.
[34] The forgoing points are taken from the summing-up at [22].
[35] The jury heard all of the calls spanning the five-hour period, and the trial Judge gave careful and appropriate voice identification directions.
[36] The trial Judge went to unusual (but appropriate) lengths to give directions to the jury to "give the accused every fair and reasonable allowance for representing himself ([49]-[51]).
[37] It is appropriate to record here that it appears from the summing-up that Mr de Montalk had not in fact received a copy of the computer disk of the recorded telephone conversations until the first day of the trial. The police had extra copies by early September 2003. But it seems that one sent to Mr de Montalk earlier may not have reached him because it was "delivered to a different prison than where the accused was at the time" ([53] summing-up). Again, the Judge asked the jury to consider whether this had had any impact on the trial process, and suggested that the accused should be given such fair and proper allowance as the jury thought fit.
[38] We record these observations because it is apparent from a perusal of the summing-up and the events surrounding it (Mr de Montalk had more to say to the Judge after the summing-up, and the Judge in fact addressed the jury further) that Mr de Montalk received very considerable tolerance and assistance from the District Court Judge. This is reflected in the fact that in his own documents he is respectful of Judge Davidson and that Judge (alone) is exempt from the sort of accusations levelled by Mr de Montalk at what appears to have been every other Judge to have been associated in any way with this case, not to mention court staff.

The appeal

Introduction

[39] As is so often the case with appellants in person, discrete and even disjointed assertions are made. It is not easy to assemble them in a more ordered way. In what follows we have endeavoured to fairly reflect what seem to be Mr de Montalk’s concerns.

Recording of the threats to kill

[40] A transcript of the material on which the Crown relied is conveniently attached to Ms Laracy’s submissions of 19 May 2005, which were prepared for that abortive hearing.
[41] It appears that Mr de Montalk harboured a concern that this material had been "concocted" somehow by cutting, pasting, trimming, etc. In his notice of appeal Mr de Montalk indicated that he wished to call witnesses on this point. It is likely that what he was seeking to do was to call evidence going to his perception of this issue. But no application for leave to file evidence has been lodged, and that matter has not been pursued further, in this Court, other than by repeating what is a pure assertion. The jury had also heard Mr de Montalk on this issue, in evidence and submissions.

Representation

[42] The notice of appeal asserts that Mr de Montalk was denied legal representation.
[43] That is not correct. We have the record of the discussion between Judge Spear and the appellant on 21 January 2004, which shows clearly that before the trial the District Court was very concerned to ensure that Mr de Montalk had legal representation for the trial and endeavoured to assist him with preparatory matters. Mr de Montalk insisted upon representing himself. Judge Spear (with considerable and understandable reluctance) gave counsel then assigned leave to withdraw. The trial commenced on 1 March 2004, with Mr de Montalk representing himself. Before us, he said that was what he wanted to do (as is his right).

Disclosure

[44] Mr de Montalk made much at trial of alleged non-disclosure by the police of a CD recording of the threatening messages.
[45] As we apprehend it, the 21 messages allegedly left by Mr de Montalk on Mr Gotlieb’s telephone were copied by Telecom from its internal recording onto a CD. Having been received by the police, that CD was sent to the police Electronic Crime Laboratory in Wellington. That laboratory copied this CD onto another CD, a dictaphone tape, and onto a cassette tape.
[46] The cassette tape was provided to Mr de Montalk, as part of the usual disclosure package. Mr de Montalk claimed that from an early stage he had requested a copy of the recordings in CD format. He considered the police and Mr Gotlieb had "doctored" the recordings. Mr de Montalk said he had a recording studio at home and the necessary equipment to analyse a CD of the recordings. He said he would be able to show there were serious issues with the authenticity and reliability of the messages purportedly recorded on the CD. But, as Mr Toogood said in his submissions, Mr de Montalk had ample notice of the content of the recordings. This is not a case in which he was taken by surprise.
[47] No evidence was led at trial as to the lack of integrity of the recordings. And perhaps more importantly, given that he was given a copy of the CD at trial, Mr de Montalk has had, since that time, the ability to carry out the analysis he said he would undertake. Yet still no application or evidence has been forthcoming as to the "doctoring" of which he complains.

No proof of identity

[48] Mr de Montalk’s case was that he had not left the messages complained of. There are essentially two points to be made about this concern.
[49] The first is that, notwithstanding the defence of "it is not me on the recording", in his evidence Mr de Montalk commented that he "would not be surprised" if the voice on the CD was his (page 346) and that although he did not leave the messages on 9 August it is "possibly, and probably, more than likely" that he did it at another time (page 371).
[50] Secondly, the jury had the relevant tapes played for them. The evidence as to whether this was Mr de Montalk’s voice or not was before them. Indeed, this case has the feature that the jury heard Mr de Montalk’s voice continuously throughout the eight-day trial. As we held recently in The Queen v Justin Christopher Harder CA422/05 29 May 2006, the jurors were perfectly entitled to take into account what they had heard from Mr de Montalk over the course of the trial in satisfying themselves as to the voice identification. They could themselves compare his voice with the tapes.

Other matters

[51] Mr de Montalk complained of an unlawful arrest, of conspiracies and perjury, intimidation, and as to the conduct of judicial officers, but no particulars are given. It is therefore difficult to deal with them. At the end of the day they all relate back to Mr de Montalk’s fundamental concern that (in his view) this was a wrong result because of "doctored" evidence and what he sees as the failure to put that right (which we have already dealt with) and that he has not had all the documents brought forward which should have been, on this appeal. On that last point we invited Mr de Montalk to hand up the bundle of documents he said should have been included on the appeal. We retired to an adjoining courtroom and looked at that bundle. The material all appeared to relate to miscellaneous (and collateral) matters, such as discovery, and bail, in the District Court. As Chambers J had directed, there needed to be an indication as to why those documents were relevant to what is before us. We could discern no relevance at all.
[52] Finally, Mr de Montalk persistently referred to s 25(a) of the New Zealand Bill of Rights Act 1990, in an unparticularised way. As to the trial, on his own recognition, he seems to have thought that he got a very fair crack of the whip from the trial Judge. His concerns under this head really overlap into the matters we have already discussed. As to the lack of a fair appeal – if that was the complaint - we have noted the very considerable difficulties (essentially self-induced on Mr de Montalk’s part) in getting this appeal into shape to be heard. And at the hearing, we have had nothing concrete at all placed in front of us to demonstrate that this was a case of fabricated evidence.

Conclusion

[53] None of the grounds of appeal are made out. The appeal is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2006/144.html

[1]	In March 2004 Mr de Montalk stood his trial before Judge Davidson and a jury of 12 in the District Court at Hamilton. He was charged with threatening to kill Mr Gary Gotlieb, an Auckland barrister. The jury returned a verdict of guilty. A conviction was entered on 8 March 2004.
[2]	On 2 April 2004 Mr de Montalk was sentenced to 16 months imprisonment. He has served his sentence of imprisonment.
[3]	Mr de Montalk appeals against his conviction, on a lengthy list of grounds, most of which, on closer examination, over-lap.

[4]	The appellant has raised a number of procedural issues, prior to this appeal coming on for hearing. For reasons which will become apparent later in this judgment, it is appropriate to record the course of those matters.
[5]	After the timeous notice of appeal was filed events appear to have followed the usual course for such appeals in this registry.
[6]	Given that there appeared to be concerns about the summing-up, the Court of Appeal registry called for a copy of the summing-up from the trial Judge, and on 2 September 2004 a Judge of this Court determined, in accordance with the Crimes Act 1961, that Mr de Montalk should have an oral hearing.
[7]	According to the registry date stamp, on 16 February 2005 the registry received a letter from Mr de Montalk dated 12 July 2004. He enquired as to the status of two appeals.
[8]	One was an unrelated matter with respect to a motor vehicle.
[9]	The second concern was with respect to this appeal. Mr de Montalk said he required (unspecified) documents "as soon as possible as [to] the hundreds and hundreds of pages of false statements by judges, denial of justice by judges, abuse of law by judges and crimes of Gary Colin Gotlieb supported by the judiciary in a conspiracy". He advised that if this was not forthcoming, he intended to apply to the Supreme Court "due to this blatant criminal activity". He said that criminal charges were to be filed against all judges.
[10]	The registry responded that day by letter to Mr de Montalk. He was advised that the registry had been having difficulty sending anything to him because it had no address for him; neither had Mr de Montalk’s lawyer (Mr Speed) on the other appeal.
[11]	It is plain from the registry’s letter that a casebook had been compiled, in the usual way, for this appeal but it had not been able to be forwarded to Mr de Montalk because of the lack of address. When his letter was received, the registry forwarded (that day) a copy of the notice of appeal and covering letter which had been received by the Court, a copy of the notice of filing, copies of the trial file request and request for summing-up, and the casebook for the appeal. Mr de Montalk was advised that a fixtures manager would be in contact with him to set a fixture date.
[12]	On 2 March 2005 Mr de Montalk was advised by letter of possible dates for the hearing of this appeal in Auckland, being 23 May, 13 June, and 14 June 2005.
[13]	It is not entirely clear to us whether there was any communication from Mr de Montalk at this point. There appears to be nothing on the file from him in response to this letter. In the event, that does not matter because a Deputy Registrar wrote to Mr de Montalk at his nominated address indicating that a fixture had been allocated for the hearing of the appeal for Tuesday, 24 May 2005.
[14]	The appeal was duly called on that date before Anderson P, Robertson and Salmon JJ. Mr de Montalk appeared in person. He objected to Salmon J sitting on the case. Salmon J stood down, and the panel was reconstituted that day as Anderson P, Robertson and Williams JJ.
[15]	Mr de Montalk then complained about lack of documentation. He told the Court he had not received a copy of the case on appeal. The Court provided him with a copy of the case on appeal and adjourned the appeal to a date to be fixed. The President directed that that date should be far enough in advance for Mr de Montalk to "thoroughly peruse the case and formulate his grounds of argument as well as applying for any ancillary orders".
[16]	On that occasion, Mr de Montalk also signalled that he wished his appeal to be dealt with by a Full Court. The President indicated that on receipt of a proper application (and Mr de Montalk was advised as to how to go about this) the President would give that matter consideration.
[17]	Mr de Montalk also complained about his inability to get a copy of a CD recording of the words forming the subject of the charge or charges. The Crown undertook to forward a copy to Mr de Montalk. The President recorded in his minute that Mr de Montalk had confirmed his address for this purpose.
[18]	It would appear that thereafter Mr de Montalk made an application under s 389 of the Crimes Act 1961. That application was dealt with by Chambers J in a minute of 6 July 2005. It seems that Mr de Montalk was seeking to have included in the case on appeal a great deal of documentation relating to various bail hearings. He also made what the Judge recorded as "outrageous allegations" against the President and Registrar of this Court. The minute indicated that if Mr de Montalk could demonstrate how the documents he was seeking were relevant to the appeal, the decision not to include them in the case on appeal could be reconsidered, but that he would have to file a moderately worded memorandum on this matter before that exercise was undertaken.
[19]	Mr de Montalk thereafter filed what the President recorded to be "applications of various sorts". The documents contained inappropriate "indeed scandalous material" (Anderson P), and the President directed that the documents were to be removed from the court file. Mr de Montalk was advised to engage counsel, and he was further advised that inappropriate material would not be permitted to remain on the file.
[20]	The appeal was then listed again, and called, on 16 February 2006 before William Young, Potter and Rodney Hansen JJ. Mr de Montalk chose not to attend on that occasion. He had filed a document styled "application to refer appeal directly to the Supreme Court of New Zealand". The Court directed that it had no jurisdiction in respect of that document, and that if Mr de Montalk wished to challenge his conviction directly in the Supreme Court he must seek the leave of that Court to do so. This Court further directed that a hearing date be allocated in Auckland by the registry "at least three months out" to give Mr de Montalk time to seek whatever leave it was he thought he was entitled to pursue from the Supreme Court. Mr de Montalk was further advised that if he wished to prosecute his appeal in this Court he should provide a document in temperate language setting out the basis upon which he sought to challenge his conviction.
[21]	A further appeal date was duly allocated before this panel at Auckland on Monday 19 June 2006.
[22]	On 2 June 2006 it was indicated to Mr de Montalk (by a minute of Hammond J) that his appeal would be reached at 2.15pm on 19 June 2006, and that he did not have to attend until that time, so that he would not be unnecessarily inconvenienced.
[23]	In the meantime, on 19 May 2006 Mr de Montalk had returned his copy of the casebook because, he said, his name had been misspelled. The minute of 2 June 2006 recorded that there would be an order at the hearing correcting the misspelling (and such an order was made that day) but that the casebook would not be reprinted (because of the obvious public expense). His case on appeal, which he had returned to the Court of Appeal, plastered with scandalous observations, was returned to him. Mr de Montalk was reminded that scandalous material would not be received, and that he had not yet filed written submissions. Timetable orders were made in that respect.
[24]	Mr de Montalk’s response to this minute was to forward a letter (dated 6 June 2006) to the registry accusing Hammond J and Mr Toogood QC of "conspiracy", and outlining complaints he had made (he said) to the United Nations Human Rights Committee and to the International Islamic Justice Committee. He said he was "appealing" to the Supreme Court. He enclosed a copy of a document which purports to be an application for leave to appeal to the Supreme Court of New Zealand under s 13 of the Supreme Court Act 2003 "for leave to appeal to that court due to the immense importance of the matter to all New Zealanders and to the establishment of law in New Zealander (sic)." Twenty-two points of appeal (many of an offensive character) are made. But what is sought to be appealed is not apparent. There was then no judgment of this Court on his appeal.
[25]	The Court issued a further minute on 13 June 2006 confirming that the appeal would be called at 2.15pm on 19 June 2006. The minute concluded, "It is still open to Mr de Montalk to appear and make whatever submissions he wishes to make enlarging on the points raised in his notice of appeal". He has in fact appeared in person today, and he has made forceful submissions.
[26]	It will be apparent from the forgoing, that for over a year now since the first call of this appeal, Mr de Montalk has persisted with a gamut of expostulations (many of an utterly scandalous variety), despite the Court having advised him as to what steps he ought to take to pursue his perceived objectives, none of which have been followed up on, by him.

[27]	Mr Gotlieb is an Auckland barrister who works from an office at 22b Jervois Road, Ponsonby.
[28]	At all times relevant to the prosecution, Mr de Montalk was living at a street address of 101 Rosser Street in Huntly. He had a telephone at that address subscribed in his name.
[29]	Mr Gotlieb had a long association with Mr de Montalk, with respect to various legal matters. Over a period of several years Mr de Montalk voiced a number of grievances to Mr Gotlieb arising out of these matters.
[30]	The Crown case was that between 5.30am and 10.40am on Saturday 9 August 2003, Mr de Montalk made 21 separate telephone calls from his home address to Mr Gotlieb’s telephone at the Jervois Road office. Mr de Montalk left messages. On some occasions, he identified himself by name. The messages were progressively more threatening both in nature and context. In one message he said, "I am going to shoot you Gotlieb", and in another, "You won’t know where, you won’t know when, you’re mine, Gotlieb". Mr Gotlieb was told that he would know what it was like to lose a daughter. Mr Gotlieb had a daughter, then 15 years of age.
[31]	During that same period, four separate telephone calls were made from Mr de Montalk’s telephone to Mr Gotlieb’s home address by a male caller. On each occasion, the caller spoke to Mr Gotlieb’s wife, and is said to have aggressively asked for Mr Gotlieb.
[32]	As a result of these threats, Mr Gotlieb made a complaint to the police. On 14 August 2003 detectives and members of the armed offenders squad executed a search warrant at Mr de Montalk’s home address. During that search an Auckland telephone book was located with both of Mr Gotlieb’s telephone numbers underlined. Mr de Montalk was interviewed by detectives. He refused to answer any questions relating to this charge.

[33]	The trial Judge recorded in his summing-up that Mr de Montalk had made a "5 point" response to the charge, and we think that analysis fairly reflects Mr de Montalk’s concerns on the merits of this case.
	He contended that the Crown had failed to prove beyond reasonable doubt that he made the calls the Saturday morning when the calls were made from the landline associated with the Huntly address; and he said that Mr Gotlieb’s voice identification was flawed. He apparently also contended that the landline was inoperative that weekend.
	Even if the Crown could prove the calls, he said it was not proved that they contained threats.
	He contended there was a serious issue as to the integrity of the calls themselves, and that the Crown had not proved that these were "pure and undoctored and not mixed and jumbled to achieve a more sinister nature".
	He contended that the Crown had not proved beyond reasonable doubt that there was either a direct or indirect threat to kill.
	He further contended that the Crown had failed to prove beyond reasonable doubt that he intended that the threats would be taken seriously.
[34]	The forgoing points are taken from the summing-up at [22].
[35]	The jury heard all of the calls spanning the five-hour period, and the trial Judge gave careful and appropriate voice identification directions.
[36]	The trial Judge went to unusual (but appropriate) lengths to give directions to the jury to "give the accused every fair and reasonable allowance for representing himself ([49]-[51]).
[37]	It is appropriate to record here that it appears from the summing-up that Mr de Montalk had not in fact received a copy of the computer disk of the recorded telephone conversations until the first day of the trial. The police had extra copies by early September 2003. But it seems that one sent to Mr de Montalk earlier may not have reached him because it was "delivered to a different prison than where the accused was at the time" ([53] summing-up). Again, the Judge asked the jury to consider whether this had had any impact on the trial process, and suggested that the accused should be given such fair and proper allowance as the jury thought fit.
[38]	We record these observations because it is apparent from a perusal of the summing-up and the events surrounding it (Mr de Montalk had more to say to the Judge after the summing-up, and the Judge in fact addressed the jury further) that Mr de Montalk received very considerable tolerance and assistance from the District Court Judge. This is reflected in the fact that in his own documents he is respectful of Judge Davidson and that Judge (alone) is exempt from the sort of accusations levelled by Mr de Montalk at what appears to have been every other Judge to have been associated in any way with this case, not to mention court staff.

[44]	Mr de Montalk made much at trial of alleged non-disclosure by the police of a CD recording of the threatening messages.
[45]	As we apprehend it, the 21 messages allegedly left by Mr de Montalk on Mr Gotlieb’s telephone were copied by Telecom from its internal recording onto a CD. Having been received by the police, that CD was sent to the police Electronic Crime Laboratory in Wellington. That laboratory copied this CD onto another CD, a dictaphone tape, and onto a cassette tape.
[46]	The cassette tape was provided to Mr de Montalk, as part of the usual disclosure package. Mr de Montalk claimed that from an early stage he had requested a copy of the recordings in CD format. He considered the police and Mr Gotlieb had "doctored" the recordings. Mr de Montalk said he had a recording studio at home and the necessary equipment to analyse a CD of the recordings. He said he would be able to show there were serious issues with the authenticity and reliability of the messages purportedly recorded on the CD. But, as Mr Toogood said in his submissions, Mr de Montalk had ample notice of the content of the recordings. This is not a case in which he was taken by surprise.
[47]	No evidence was led at trial as to the lack of integrity of the recordings. And perhaps more importantly, given that he was given a copy of the CD at trial, Mr de Montalk has had, since that time, the ability to carry out the analysis he said he would undertake. Yet still no application or evidence has been forthcoming as to the "doctoring" of which he complains.

[48]	Mr de Montalk’s case was that he had not left the messages complained of. There are essentially two points to be made about this concern.
[49]	The first is that, notwithstanding the defence of "it is not me on the recording", in his evidence Mr de Montalk commented that he "would not be surprised" if the voice on the CD was his (page 346) and that although he did not leave the messages on 9 August it is "possibly, and probably, more than likely" that he did it at another time (page 371).
[50]	Secondly, the jury had the relevant tapes played for them. The evidence as to whether this was Mr de Montalk’s voice or not was before them. Indeed, this case has the feature that the jury heard Mr de Montalk’s voice continuously throughout the eight-day trial. As we held recently in The Queen v Justin Christopher Harder CA422/05 29 May 2006, the jurors were perfectly entitled to take into account what they had heard from Mr de Montalk over the course of the trial in satisfying themselves as to the voice identification. They could themselves compare his voice with the tapes.