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The Queen v Terry [2007] NZCA 260 (26 June 2007)

Last Updated: 3 July 2007

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

A Leave out of time to appeal is granted.

B The 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 acquitted if the trial had continued, but this is no more than speculation.

The appeal against sentence

[7] The primary basis of the sentence appeal was Mr Terry’s claim that he had pleaded guilty on the basis of a sentence indication given to his counsel that if he pleaded guilty he would be discharged without conviction. Given that there was no evidence on this point before us, we allowed Mr Terry a further seven days to put in an affidavit from his then counsel to support this ground of appeal. We also allowed the Crown, within the same period, to lodge an affidavit from the prosecutor.
[8] The Crown responded to this opportunity by putting in an affidavit from the prosecutor which indicates the sentence indication given to Mr Taffs was in accord with the sentence eventually imposed. We also received an affidavit from Mr Terry’s former counsel which does not support the complaint made by Mr Terry. Following receipt of that affidavit we gave Mr Terry an opportunity to put before the Court any further material which he wished to rely on. Mr Terry did not avail himself of this opportunity. There is, accordingly, no evidential basis for this aspect of the appeal.
[9] The appellant also complains that the Judge took into account previous convictions for similar offending. In the circumstances the case, the Judge was perfectly entitled to do so.

Result

[10] Leave to appeal out of time is granted. The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington

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[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.

[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 acquitted if the trial had continued, but this is no more than speculation.

[7]	The primary basis of the sentence appeal was Mr Terry’s claim that he had pleaded guilty on the basis of a sentence indication given to his counsel that if he pleaded guilty he would be discharged without conviction. Given that there was no evidence on this point before us, we allowed Mr Terry a further seven days to put in an affidavit from his then counsel to support this ground of appeal. We also allowed the Crown, within the same period, to lodge an affidavit from the prosecutor.
[8]	The Crown responded to this opportunity by putting in an affidavit from the prosecutor which indicates the sentence indication given to Mr Taffs was in accord with the sentence eventually imposed. We also received an affidavit from Mr Terry’s former counsel which does not support the complaint made by Mr Terry. Following receipt of that affidavit we gave Mr Terry an opportunity to put before the Court any further material which he wished to rely on. Mr Terry did not avail himself of this opportunity. There is, accordingly, no evidential basis for this aspect of the appeal.
[9]	The appellant also complains that the Judge took into account previous convictions for similar offending. In the circumstances the case, the Judge was perfectly entitled to do so.