Berrett v R [2019] NZCA 545 (8 November 2019)

Last Updated: 11 November 2019

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA701/2018 [2019] NZCA 545

	BETWEEN	QUINTON MURRAY BERRETT Appellant
	AND	THE QUEEN Respondent

Hearing:	7 August 2019
Court:	Kós P, Woolford and Dunningham JJ
Counsel:	Appellant in person S A H Bishop and S K Brennan for Respondent
Judgment:	8 November 2019 at 11 am

JUDGMENT OF THE COURT

1. Leave to appeal out of time is granted.
2. The application to adduce further evidence on appeal is declined.

100. The appeal against conviction is dismissed.

4. The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Woolford J)

[1] Following a jury trial in the District Court at Whanganui between 14 and 16 May 2018, Quinton Murray Berrett was convicted on one charge of threatening to destroy property, two charges of blackmail and one charge of attempting to pervert the course of justice. On 10 October 2018, he was sentenced to two years’ intensive supervision and 180 hours of community work.^[1] He now appeals against conviction and sentence.

Factual background

[2] In around 2012, Mr Berrett formulated an idea for dual statues of saluting soldiers to commemorate the ANZAC troops, one to be erected in New Zealand and the other in Australia, both facing towards each other. He discussed his idea with an official New Zealand Defence Force artist, Mr Matthew Gauldie. Mr Gauldie agreed to carry the proposal forward.
[3] Mr Gauldie approached the Royal New Zealand Returned and Services Association (RSA) to see if they were interested in arranging sponsorship for the project. The RSA was interested and the project became known as the ANZAC Salute project. It was developed through 2012 and 2013, but Mr Berrett had no involvement in it beyond originally communicating his idea to Mr Gauldie in 2012.
[4] In 2014 the RSA published a report describing the project (without Mr Gauldie’s knowledge) as Mr Gauldie’s idea. On 30 November 2014, the RSA received an email from Nikki Pratt, a friend of Mr Berrett, complaining of the error. The RSA passed the message on to Mr Gauldie, who spoke to Mr Berrett by telephone. In the course of the telephone call, Mr Berrett became agitated and aggressive. There was then a falling out between Mr Berrett and Mr Gauldie.
[5] The first charge on which Mr Berrett was convicted was threatening to destroy property. It related to an email sent from an email address connected with Mr Berrett to a large number of recipients, including office holders and members of the RSA, journalists and politicians on 1 March 2015. It stated in part:

After careful consideration I have decided it is now time to take action. I have been ignored by politicians, the SFO, media, the RSA, the governor general, the minister of veteran affairs of both labour and national. I have been ignored by the ANZ Bank, Mayors and local mp’s. Everyone on this email list is aware of my situation and there are many more. But I promise you all I will not be ignored any longer. I am giving you exactly until 4pm on Friday the 6th of March to make amends for what you have cost me. If you continue to ignore me after this time I will attempt to burn one of your RSA buildings to the ground. I would like to see you ignore that and you cannot stop me.

...

This is not a threat. The police can only detain me for a certain amount of time. You know this; more importantly, I know this. Sooner or later I will be released and I will do exactly what I have told you I will do. Regardless of whatever punishment is imposed upon me, as soon as I am able to I will do it again and again, and again. I am prepared to go to prison. I am prepared to die for my beliefs; but what are you prepared to risk to protect your stolen idea? I have no fear and nothing left to lose; but you have everything to lose.

[6] The second and third charges of blackmail arose out of two emails, dated 16 April 2015 and 19 April 2015, sent from the same email address to Mr Gauldie. The email dated 16 April 2015 stated in part:

Now, we both know what you have taken from me. You know what you have cost me. You know you lied to me. You know you stole my idea. Now I am giving you ONE last chance to give me what you promised me. You have until 4pm on Wednesday, the 22^nd of April to make amends and apologize.

If you do not make any attempt at all to rectify your actions, I will follow your career path for the rest of your natural life and I will let everyone know what you have done to me.

I will inform EVERY artist, EVERY forum and EVERY single gallery that your work appears in. I told you once before an artist needs to sell their name, not their art. Any artist who would willingly do what you have done to me on the 100 year anniversary of the spirit of our nation doesn’t even deserve a single dollar for their finest work and I’ll make sure that is all you will ever get.

You know I won’t stop until this has been put right. Even if I do decide to burn an RSA to the ground, your career still burns with it ... Apologise for what you’ve done, give me what you’ve promised me and you can have your damn statues.

Quinton Berrett

Natural Citizen

[7] The email dated 19 April 2015 stated in part:

You are running out of time. You now have less than three days to make amends for what you have done. I want an apology for what you have stolen from me, I want an apology for what you have done to me and I want what you promised me or I will do everything I have told you I will do. That is something I can promise you. ...

But if you do not. I will destroy your career and I will let the entire world know your name and what you have done. Either way, I will have justice. Either way, you will pay. Either way, I will make sure you are sorry for what you have done. At least this way, you get to choose how. So either you keep your word for once in your life or I will keep mine. If I am forced to face ANZAC day with this hanging over my head, then I will do everything I can to make your life as miserable as you have made mine.

[8] Mr Berrett was arrested shortly thereafter and charged in relation to both the earlier threat to burn down an RSA building and threats made against Mr Gauldie in the emails dated 16 and 19 April 2015. After Mr Berrett was charged, the Crown Solicitor assumed responsibility for the prosecution. The fourth charge on which Mr Berrett was convicted was attempting to pervert the course of justice. It related to an email he sent from the same email address to the Crown Solicitor, dated 10 May 2016. It stated in part:

Dear Lance,

After spending more than a year on bail, I just thought you should know what these unlawful charges and false allegations have personally cost me to date;

...

And that is not all it has personally cost me either. There is the financial cost involved, the emotional and mental anguish and suffering. There is stress, duress and undue hardships that have arisen directly from YOUR false allegations and YOUR unlawful actions.

Added to this, my brother is getting married later this year and he has asked me to be his best man. If I am prevented from attending his wedding due to this situation, I will hold you personally responsible.

On that note, have you ever considered what will happen if I am pushed to breaking point? For example, there are countless cases where an individual has reacted and responded violently after being pushed to breaking point by corporate corruption, suffering, stress, loss or even the unfair or unjust treatment imparted upon them. I can fully empathise with these ‘type’ of people and the hardships they are forced to endure.

Hypothetically speaking of course, if I were to physically assault you or worse, would anyone actually be surprised at all under these circumstances? Perhaps if I were to go down that particular path I might even request an s.38 myself, I believe there would be sufficient grounds for it to be upheld.

...

Regards.

Quinton Berrett,

Natural citizen

[9] These four emails were, however, just a few of the numerous emails allegedly sent by Mr Berrett over many months. They therefore need to be seen not in isolation, but in that context.
[10] The police became involved after the first email. Mr Berrett was, however, not immediately arrested and charged. Instead, meetings were held in an attempt to resolve Mr Berrett’s concerns. On 28 March 2015, Detective Chay McArthur received an email from Mr Berrett, which read in part:

Dear Chay,

During our last meeting you asked me to sit down and seriously think about the implications of my actions; should I choose any action that may be deemed contrary to common law. During this same meeting I assured you that I had indeed given this much thought over the years and I would now like to share these thoughts with you.

Please bear in mind that these are simply my own personal thoughts pertaining to the current situation and nothing more than that. These thoughts contain no actual threats either implied or otherwise and are simply a reflection of my mindset of which you had requested that I take the time to consider and as such, I will now share these thoughts with you.

So here are my thoughts;

Firstly, if you know your history then you would also know the letters RSA are also synonymous with politics. You may have also noticed the so-called ‘threat letter’ was addressed to various members of political parties within the New Zealand government as well as several New Zealand Returned Services Organisations. And as I have mentioned several times in the past the letter was in fact addressed ‘to whom it may concern’.

I had also mentioned to you that I had planned this long before the NZRSA had become involved. The reason for my doing so is simple; Death by proxy. All that I told you in that meeting was entirely true and without reservation. For all that I have suffered and been forced to endure; this is something I have contemplated many, many times in the past.

Regretfully, it is also something that I am seriously contemplating now, due entirely to these extremely stressful circumstances. For me, this has always been a more preferable option to suicide. And if I was to act now, it would serve a two fold purpose and the timing is right for maximum effect. For instance, it would send a very clear message to both the government and the RSA.

For example, if I were to ever reach my breaking point, my target is and always has been a parliament building. Naturally, my preference would be the beehive itself, and I can admit at one time I did in fact possess the floor plan and building layout to this particular building. But any government building would suffice and there are many that I still have grievance with.

I have also read and memorized certain pages of the books ‘the terrorist handbook guide’ and also ‘the anarchist cookbook’, both of which I am sure you are familiar with. I can assure you however, that I no longer have any copies of either or any other similar books in my possession as I have no further use for them.

I also have an indepth knowledge of chemistry and electronics. I am highly capable of building a remote ‘dead man’ switch that is fully compatible with many different types of IED’s. You may have even noticed the advanced chemistry books sitting on the shelf during your last visit.

Over the years, I have also picked up many useful tips and tricks from my friends and family within the New Zealand Military, all of which would serve me well, should I decide I have finally had enough of countless years of suffering extreme mental, psychological, physical and emotional abuse.

This is why I was slightly bemused by your mentioning the petrol can in the back of Nikki’s car; because if I was to be pushed to breaking point; I would use neither as neither belong to me and a can of petrol is both a crude and ineffective method, and I concede that it would indeed put other peoples lives at unnecessary risk.

Jaycar, supermarkets, paint and automotive stores contain all the materials I would require, and the best part is that none of these materials are illegal to own or possess. Many of which can even be found or salvaged from items around the home. For example and without going into too much detail; a simple can of deodorant contains the similar explosive force to that of a hand‑grenade if a basic set of specific conditions were to be applied.

In the past I have also made a very effective rocket launcher using nothing more than a short length of 2” steel pipe, a barbecue lighter, duct tape and a standard threaded screw. This rudimentary weapon is capable of accurately firing a projectile containing a mixture of petrol & polystyrene into a target approximately 50m away with a surprising and devastating effect.

From personal experience, I can tell you that it takes less than 20 minutes to make both this device and the projectile ready for use, using no tools other than just an ordinary battery powered drill and just a few easily accessible materials. If the holes were predrilled, it can be assembled in less than 2 minutes and none of the materials required are illegal to own or possess, nor would they ever raise any suspicion in their natural state.

You also mentioned to me about the risk of causing death or injury to a firefighter or civilian. The only reason I became a volunteer fireman was simply to find out under what set of circumstances would they not enter a building. In that regard, and whilst I must admit I cannot guarantee that no one would be hurt, I do believe I can minimize that risk simply by placing remote IED’s around the perimeter.

You also mentioned to me during the course of our meeting that you would hate to have to arrest me. Whilst I appreciate the sentiment, I do not believe this will happen as I will never be carrying anything illegal at anytime and in doing so I believe I could only be arrested after or in the process of committing an actual offence.

Furthermore; I am also a legally declared natural citizen and part of a lawful rebellion that does not recognize the New Zealand crown or governing bodies legal right to rule due to their own corruption.

In regards to this particular lawful declaration of intent; this has been acknowledge by the crown and has been forwarded to the Attorney General via the prime ministers office. As such, their acceptance of this declaration also applies to any civil servant and any other subordinate of the crown or the organisation in which they serve.

Whilst I do concede that destruction of property is indeed unlawful, it is not illegal to burn your own property. In this regard, I have in fact contested the ownership of all government and crown land and properties, and in fact I have actually claimed rightful ownership of these properties as my very own; all by a lawful and public declaration, I might add.

To date, I still have not received any opposition contesting my claims of ownership from either the crown or any other individual; and as such, I now must also consider this lawful declaration of ownership to also be accepted and acknowledged by the crown itself.

Therefore any action taken against me would be a breach of my sovereign rights and any form of incarceration would therefore be considered as a human rights violation. And as I am sure you are aware, in such instances, a civil lawsuit may be taken against the arresting officer and not the crown entity in which they serve. So if you were to arrest me, I would equally hate to have to take any action against you.

...

Leave to appeal out of time

[11] Mr Berrett’s appeal was filed six days out of time. He says this was due to the refusal of the District Court at Whanganui to release a “copy of the sentencing transcript”. Given the circumstances, we grant the extension of time.

Leave to adduce further evidence on appeal

[12] Mr Berrett filed a substantial quantity of further documentary material and indicated that he wished to call the foreperson of the jury on the basis that, he says, the juror told his mother in the course of his sentencing that the jury “got it wrong”. In response to this indication, Miller J issued a minute on 28 February 2019 referring the appellant to r 12B of the Court of Appeal (Criminal) Rules 2001. The Court directed that the proposed evidence be reduced to sworn affidavits and filed in advance of the hearing.
[13] On 25 April 2019, Mr Berrett filed a volume of material comprised of one signed statement by him and one by his mother together with 25 further documents, largely comprising of emails and letters, which were not in affidavit form. Although we formally decline leave to adduce this material as evidence, we have, nonetheless, had regard to all the material filed by Mr Berrett as much of it could be seen to be submissions, rather than evidence.

Appeal against conviction

[14] The Court must allow the appeal if it is satisfied that, having regard to the evidence, the jury’s verdict was unreasonable, or a miscarriage of justice has occurred for any reason.^[2] A miscarriage of justice in this context means any error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected; or has resulted in an unfair trial or a trial that was a nullity.^[3]

Mr Berrett’s complaints

[15] Mr Berrett’s complaints are wide-ranging and have evolved over time. A major theme is Mr Berrett’s contention that the case is entirely about protesting the unlawful actions of the New Zealand government under John Key and his undemocratic leadership regarding unlawful changes to legislation, the undemocratic flag debate, the undemocratic TPPA fiasco, multiple unlawful land claim settlements and other historical grievances against the Crown. He sees himself as leading a lawful rebellion against government corruption. However, as best as can be ascertained, Mr Berrett has the following specific complaints about the trial.
[16] First, he submits that the Crown failed to prove that he sent each of the four emails that were the subject of the charges. He says he had no prior knowledge of the contents of any of the four emails before they were sent. He does not know the identity of the individuals responsible for sending the emails, but believes it could be the police. Emails had been sent from the email address connected with him on numerous occasions when he had no internet access, such as when he was at a meeting inside the Whanganui Police Station or present in the District Court at Whanganui for a callover. He also says he lost access to that email account in December 2016.
[17] In particular, at the time of the first email, he had already travelled to Masterton with the intention of going fruit picking. He could not have been responsible for sending the email as it would have been impossible for him to do so. He did not have any direct access to the internet during this time, nor did he have access to any device capable of doing so.
[18] He also had no direct contact with the complainant, Mr Gauldie, after a telephone call on 8 December 2014. He says that he was only ever copied into correspondence with various other parties, such as the police and politicians. The two allegedly threatening emails received by Mr Gauldie did not resemble any email that he has ever written and violated his own code of ethics and rules he had set for the Lawful Rebellion.
[19] Furthermore, the attempting to pervert the course of justice email was copied and pasted by unknown individuals directly from his website. Mr Berrett says he posted documents online so that others who wished to join the Lawful Rebellion could imitate his writing style and be free to protest while remaining completely anonymous.
[20] More generally, Mr Berrett submits that the Crown has not traced any of the emails to an internet service provider or a particular device that was used to send them. The Crown’s computer expert was wrong to say that it was very difficult to tell which computer an email was sent from if it had been sent using a web browser. Mr Berrett says it was relatively straightforward to establish. If the Crown had produced this information, Mr Berrett says he could prove that he did not use any computer or device that was used to commit the alleged offence.
[21] A second broad complaint by Mr Berrett is about the Crown prosecutor who, he says, wrongly characterised his actions as “all about money”. He did not have a bank account or any personal assets and had always donated or gifted any spare money he had to those in need. She also intentionally misled the jury by withholding evidence from them and by substituting the word “concede” with “pretended” as she read from documentation in her hand. Moreover, she was wrong to take certain lines from an email dated 28 March 2015 addressed to Detective MacArthur out of context.^[4] The entire content of the email had no basis in either fact or reality.
[22] Thirdly, Mr Berrett submits that the formal written statements of a number of witnesses, such as Mr Gauldie, contained multiple contradictions to the statements they later made under oath at trial.
[23] Fourthly, Mr Berrett submits that the Crown failed to prove that he had stood to gain any personal benefit by sending the emails. Further, he submits that if he was responsible for sending them, then it must be considered that the making of the threats was, in the circumstances, a reasonable and proper means for effecting his purpose.
[24] Finally, Mr Berrett submits that the jury foreperson had since told members of Mr Berrett’s family that the jury had rendered the wrong verdict.

Discussion

Lack of proof as to sender of emails

[25] As to the general submission that the Crown failed to prove that Mr Berrett had sent each of the four emails that were the subject of the charges, there was more than sufficient evidence for the jury to conclude that they were sent by Mr Berrett. They were in his name and sent from his email address. Mr Berrett corresponded with the police using that email address.
[26] The police organised a meeting between Mr Berrett and RSA representatives, following the email dated 1 March 2015 in which he threatened to burn down an RSA building. At that meeting, Mr Berrett did not deny sending the email, commenting only that he did not consider he had made a threat because he had not put a date on it. When the police interviewed Mr Berrett, he did say he had sent two emails to Mr Gauldie and specifically accepted that he had sent the 16 April 2015 email. As Mr Berrett implicitly conceded, the fourth email was in his writing style. He says it must have been copied and pasted from documents he had posted on his website by someone wanting to remain anonymous.
[27] The suggestion that any of the emails may have been manufactured by the police is farfetched and completely without substance. While a computer and cell phones seized by police pursuant to a search warrant from the home of Mr Berrett’s mother were not shown to be connected with the emails, the evidence led at trial disclosed that the emails could have been sent from any computer or mobile device with internet access through a web browser.

Crown prosecutor actions

[28] The Crown prosecutor was able to, in our view, legitimately characterise Mr Berrett’s actions as motivated by financial benefit. In the first email dated 1 March 2015, he states “one way or another I will be compensated for all that you have cost me”. In another email dated 24 March 2015, Mr Berrett states “I have now been removed from the project entirely. I have lost income, I have not received any compensation to date: as was promised by Matt Gauldie himself”.
[29] In the second email dated 16 April 2015 addressed to Mr Gauldie, Mr Berrett states “[n]ow we both know what you have taken from me. You know what you have cost me. You know you have lied to me. You know you stole my idea. Now I am giving you ONE last chance to give me what you promised me”. In his police statement, Mr Berrett said that Mr Gauldie had promised him money and mentioned the sum of $10,000, which is what he says he needed for his life. The natural implication of the emails is that a financial benefit is sought. Mr Berrett chose not to give evidence at trial, so there is no evidential foundation to displace the natural inference offered on the emails.
[30] There is no substance in the other complaints about the Crown prosecutor. The evidence she is said to have withheld from the jury is not specified. Mr Berrett was entitled, subject to the rules of evidence and procedure, to adduce evidence at trial, either through cross-examination or by calling other witnesses. The fact that the Crown prosecutor did not adduce (unspecified) evidence does not amount to any prosecutorial error or misconduct amounting to a miscarriage of justice.
[31] Finally, as to criticism made of the Crown prosecutor’s selective use of certain lines in Mr Berrett’s email of 28 March 2015, we think there was real evidential significance in the email. We do not accept Mr Berrett’s submission that the entire contents of the email are either fabricated or intentionally obtuse and there is no basis of fact for any of the statements in the email as being true or even relevant to the case.

Formal witness statements

[32] Mr Berrett does not specify how the formal written statement of Mr Gauldie or other witnesses differed from their evidence at trial. However, it is often the case at trial that the evidence of a witness may differ in certain respects from their earlier statements. Such differences may, for example, come about through questioning by either the prosecutor or defence counsel when other evidence may be put to them. That does not mean that the witness has deliberately misled the court. Such differences can, however, enable defence counsel to make submissions about a witness’ reliability. In this case, unspecified differences cannot give rise to an error, irregularity or occurrence that could cause justice to miscarry.

Personal benefit/reasonable means

[33] As noted earlier, there was evidence from which a jury could reasonably conclude that Mr Berrett was motived by financial benefit. If that is the case, Mr Berrett then submits that the threats to Mr Gauldie were a reasonable and proper means of effecting his purpose. He relies on s 237(2) of the Crimes Act 1961, which provides:

237 Blackmail

...

(2) Every one who acts in the manner described in subsection (1) is guilty of blackmail, even though that person believes that he or she is entitled to the benefit or to cause the loss, unless the making of the threat is, in the circumstances, a reasonable and proper means for effecting his or her purpose.

...

[34] He says his purpose was to resolve the dispute as to the attribution of credit for the genesis of the Anzac Salute project, but we have no doubt that the threats he made were neither a proper nor reasonable means of resolving the dispute.

Jury foreperson

[35] In a written statement dated 22 April 2019, Mr Berrett’s mother says that at sentencing her aunt, her cousin and herself all spoke with a man who identified himself as the foreperson of the jury. He is said to have apologised to her and stated that “they [the jury] got the verdict wrong”.
[36] In the absence of further evidence in affidavit form, we cannot accept the statement from Mr Berrett’s mother is of any evidential significance on the question whether the trial may have miscarried. A post-verdict statement of regret by a single juror (if indeed the person was a juror) does not call into question the safety of the verdict reached at trial on the evidence which was led. There is also no foundation for an enquiry into the jury deliberations in terms of s 76 of the Evidence Act 2006.

Sentence appeal

[37] Mr Berrett does not advance any particular grounds relating to sentence. The two charges of blackmail each carried a maximum sentence of 14 years’ imprisonment, while Mr Berrett was liable to a maximum sentence of seven years’ imprisonment on the charge of perverting the course of justice.^[5] In the circumstances, a sentence of two years’ intensive supervision and 180 hours’ community work is not manifestly excessive. Indeed it might be seen to be lenient, reflecting Mr Berrett’s plainly genuine animus about what had happened, but badly misguided attempt to achieve satisfaction.

Result

[38] Leave to appeal out of time is granted.
[39] The application to adduce further evidence on appeal is declined.
[40] The appeal against conviction is dismissed.

[41] The appeal against sentence is dismissed.

Solicitors:
Crown Solicitor, Wellington for Respondent

---

^[1] R v Berrett [2018] NZDC 21444 [Sentencing notes].

^[2] Criminal Procedure Act 2011, s 232(2).

^[3] Section 232(4).

^[4] See above at [10].

^[5] Crimes Act 1961, ss 238 and 117 respectively.