The Queen v Terry [2008] NZCA 506 (28 November 2008)

Court of Appeal of New Zealand

[Index] [Search] [Download] [Help]

---

The Queen v Terry [2008] NZCA 506 (28 November 2008)

Last Updated: 3 December 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA450/2008

[2008] NZCA 506

THE QUEEN

v

ROBERT FRANK TERRY

Hearing: 19 November 2008

Court: Arnold, Venning and Miller JJ

Counsel: Applicant in Person
S B Edwards for Crown

Judgment: 28 November 2008 at 2.30 pm

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT
(Given by Venning J)

[1] The applicant was convicted by Judge McMeeken in the District Court at Westport on a charge of misusing a telephone under s 112(2)(a) of the Telecommunications Act 2001: DC WES CRI-2008-409-000009 15 February 2008. His appeal against conviction was dismissed by Fogarty J in the High Court at Greymouth: HC GRY CRI 2008-418-000004 12 June 2008. An application for leave to appeal to this Court was also dismissed by Fogarty J on 23 July 2008. He now applies for special leave to appeal to this Court.
[2] The application is under s 144(3) Summary Proceedings Act 1957. This Court may only grant leave if the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to this Court for decision.
[3] In R v Slater [1997] 1 NZLR 211 this Court confirmed (at 214–215) that s 144(3) was not intended to provide a second tier of appeal from a decision of the District Court and that neither the determination of what comprised a question of law nor the question of whether that point of law raised a question of general or public importance was to be diluted. Further, this Court said in Candy v Auckland City Council CA371/02 25 February 2003:

[15] It is also well established that, before the High Court or this Court, in the exercise of its discretion, will grant leave or special leave to appeal, that Court will require to be satisfied that there is a tenable argument available on the question of law raised. Again it would be contrary to the statutory policy to grant leave to argue a point which was considered not seriously arguable by the Court asked to grant leave. That is so even if the question concerned is of significant interest to or affects numerous members of the public as we are prepared to assume is the case with the present application.

Background

[4] Mr Terry was charged that on 7 July 2006 he used a telephone for the purpose of disturbing, alarming, or offending the recipient by making references to delivering a child’s head to Parliament and to two truck bombs. The Private Secretary for Damien O’Connor MP, Mr Coburn, gave evidence of the call. He said that he received a telephone call from Mr Terry on 7 July 2006. He recognised Mr Terry as he was a relatively regular caller. The call lasted approximately 10 minutes. During the call Mr Terry made two threats, one concerned two truck bombs being delivered to Parliament, the first to blow up Parliament, the second to get the survivors when they came out. The second threat was to deliver a child’s head to Parliament.
[5] Two police officers also gave evidence. Senior Constable O’Connell gave evidence of making inquiries as to where the call had originated from. The call was identified as coming from the number 03 7328142 which was a landline at Horsehaven, Tawhai, Reefton.
[6] Senior Constable Simon also gave evidence. He confirmed that he made inquiries on 7 July 2006. He confirmed that at the time Mr Terry was living at the address at Horsehaven, Tawhai, Reefton. The property was occupied by Silas Derritt, Mr Terry and his brother. Constable Simon gave evidence that his inquiries disclosed that on 7 July 2006 Mr Derritt was in respite care in Hokitika and Mr Terry’s brother was, at the time of the call, away from home. The Judge found the charge proved.
[7] On appeal Mr Terry took a number of technical points. First he submitted a passage of evidence suggested the telephone call was made in March 2006 when he was charged with offending on 7 July 2006. Fogarty J rejected that point as without merit. He was satisfied that the reference to March in Mr Coburn’s evidence was a reference to when he started work and that the information and the evidence related to the correct date of 7 July 2006.
[8] Mr Terry also argued there was inadequate evidence of identity. He challenged the police evidence that his brother was away whitebaiting and Mr Derritt was in respite care on 7 July 2006. But Fogarty J held Mr Coburn’s evidence was itself sufficient to identify Mr Terry as the caller without Constable Simon’s evidence because Mr Coburn identified Mr Terry as the caller on 7 July 2006.
[9] Mr Terry next relied on what he considered was a mistake by one of the police officers, Constable O’Connell, in his reference to s 198 of the Summary Proceedings Act 1957 (Fogarty J incorrectly referred to it as the evidence of Constable Simon). The Judge rejected that ground as without merit.
[10] Mr Terry identified a further error made by the prosecutor during the course of the hearing. In opening the case the police prosecutor referred to the incident as occurring on 7 June 2006. The summary of facts made the same mistake. But the evidence and the charge both related to 7 July 2006.
[11] Fogarty J made a distinction between immaterial and material mistakes in the course of a trial. He concluded that any mistakes that had been made during the course of the trial were immaterial. He dismissed the appeal.
[12] Mr Terry then sought leave to appeal. He advanced four grounds (which he repeated in his application to this Court):

• (1) Evidence presented at trial by the police was challenged;
• (2) William Young J’s ruling in a case in 2001 was wrong in law;
• (3) Judge Walsh’s ruling in a Greymouth District Court trial in 2005 regarding privilege;
• (4) The Crown cannot rewrite the Bill of Rights 1688 in New Zealand.

[13] Fogarty J rejected each of those grounds in his decision delivered on 23 July 2008. The Judge held that no question of law arose out of Mr Terry’s challenge to the evidence presented at trial by the prosecution.
[14] Fogarty J then considered that the second, third and fourth points related to Mr Terry’s reliance on art 9 of the Bill of Rights Act that “the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”. Fogarty J noted the argument was that the right applied when making a telephone call to Parliament and the evidence of the person receiving the call should not be admitted in the ordinary courts at all, let alone in criminal proceedings, because to do so is a restriction on that freedom. Fogarty J held that was essentially the same point taken by Mr Terry in previous proceedings: Terry v Police HC GRY CRI 2003-418-000008 5 May 2004 when he appealed against another conviction under the Telecommunications Act 2001. Fogarty J noted that William Young J rejected Mr Terry’s submission on the art 9 point and that he had himself declined leave because William Young J’s decision was correct, set out settled law and there was no issue of law of public importance to go to the Court of Appeal. Fogarty J also noted it was not necessary to deal with the views of Judge Walsh in 2005 in a different case as the central point was a matter resolved in the High Court. He dismissed the application for leave.

Discussion

[15] In his application for special leave Mr Terry has set out the following:

Under s 144 [B] a provides that on, an appeal under section 144 this court has. “the same power to adjudicate on the proceedings that the high court had”

Under section 121 [2] In the case of an appeal against conviction the high court may set aside.

In the Landmark Court of Appeal ruling C.A. 460 / 03.

The President of the Appeal Court Honourable Justice Anderson acknowledged in writing the errors made in the judgment.

The Crowns own submissions to the Supreme Court S.C. 1 / 04. Are clearly wrong.

Mr Robert Terry ... is guilty of no crime on the 15th January 1998. Para graph [22] C.A. 460 / 03.

Mr Robert Terry ... Is guilty of no crime on the 5th February 1998 Paragraph [24] C.A. 460 / 03.

This judgment should be set aside.

Mr Robert Terry ... did seek leave on the evidence submitted to the Westport District Court.

Crown Law is requested to provide a Sworn Affidavit from Sgt Brett Simon. Greymouth Police to be presented to the Appeal Court bench before the 7th October 2008.

That. Brian Terry was whitebaiting in July 2006.

That Silas Derritt was in respite care in Hokitika on the 7th July 2006.

That Robert Frank Terry ... Was at Horsehaven Reefton on the 7th July 2006.

As per paragraph [6] Oral Judgment of Judge J.A. McMeeken dated 15th February 2008.

[16] In the course of his oral submissions Mr Terry sought to challenge the sufficiency of the prosecution evidence. He again pointed out the errors in the dates referred to by the witnesses. To the extent that his submissions, either oral or written seek to raise a challenge to the evidence before the District Court as a basis for the appeal they are misconceived. Whether the evidence was sufficient to enable the trial Judge to be sure Mr Terry was the person who made the call on 7 July 2006 was an issue of fact for the trial Judge. It is not a question of law and cannot support an application for special leave under s 144(3). In any event the evidence was sufficient to support the conviction. We adopt Fogarty J’s reasoning at [4] of his judgment of 23 July 2008.
[17] Mr Terry also referred to pre-trial rulings pursuant to s 379A and 344A of the Crimes Act 1961 during submissions. Those sections have no application to the prosecution under the Telecommunications Act.
[18] To the extent Mr Terry seeks to revisit the previous decision of this Court in CA460/03, the Supreme Court disallowed Mr Terry’s application for leave to appeal from that decision in SC CRI 1/2004. That is an end of that matter.
[19] In the course of his oral submissions Mr Terry also referred to the decision of this Court in Buchanan v Jennings [2002] 3 NZLR 145 and submitted that that case was particularly relevant to the issue of Parliamentary privilege. The decision of the Court of Appeal was taken on appeal to the Privy Council and is reported at [2005] 2 NZLR 577. While the case discussed art 9 of the Bill of Rights, it was on quite a different point and has no relevance to the conviction of Mr Terry in this case.
[20] To the extent that Mr Terry seeks to reargue the issue of the admissibility of evidence in purported breach of art 9 of the Bill of Rights, the argument has been considered by this Court before in another case involving Mr Terry: R v Terry CA177/04 22 July 2004. In this Court’s decision declining leave on the point in that case it observed that:

... the finding as to admissibility made by William Young J is so obviously correct as not to warrant a further appeal.

[21] Mr Terry effectively seeks to raise the same question as to the admissibility of the evidence of the telephone call to Mr O’Connor’s office. But in this case the position is even stronger against Mr Terry. There is no evidence that the call related to any proceedings before Parliament. The admission of the communication can not, on any view of it, amount to “impeaching or questioning” the proceedings of Parliament. The point Mr Terry seeks to raise is simply not worthy of further consideration by this Court.

Result

[22] As none of the matters referred to by Mr Terry raise a question of law which by reason of its general or public importance ought to be submitted to this Court, the application for leave to appeal is dismissed.

Solicitors:
Crown Law Office, Wellington