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TERRY v R [2005] NZCA 76 (20 April 2005)

Last Updated: 9 May 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA490/04

THE QUEEN



v



ROBERT FRANK TERRY

Hearing: 18 April 2005

Court: Hammond, Robertson and Potter JJ

Counsel: Appellant in Person
E M Thomas for Crown

Judgment: 20 April 2005

Appeals against both conviction and sentence are dismissed.

REASONS
(Given by Robertson J)

Introduction

[1]	The appellant, together with his brother, Brian Raymond Terry, were convicted after trial before a Judge and jury of 12 in the District Court at Greymouth on 24 May 1996 on a charge of assaulting with intent to injure contrary to s 193 of the Crimes Act 1961. Robert Terry was sentenced to 12 months’ imprisonment and Brian Terry to 15 months’ imprisonment.
[2]	On 1 October 1996, appeals by both of the brothers were dismissed by this Court in an ex parte judgment (CA206/96 and CA207/96).
[3]	Mr Robert Terry has now sought a rehearing of his appeal in accordance with this Court’s decision in R v Smith [2003] 3 NZLR 617. He prepared written submissions which were lodged and appeared in person at the hearing to make submissions.

Factual circumstances

[4]

The offending occurred on 18 April 1995 and was the culmination of a series of disputes between the complainant and the Terry brothers involving the boundary between their properties in the bed of a creek. Blows were struck. The fundamental issues were whether the Terrys acted in self-defence and the complainant had been the aggressor, or whether there were unjustified attacks by them.

The appeal

[5]	The exact nature of the appellant’s concerns were not easy to identify, but from the written material and in light of the oral submissions at the hearing, his grounds were identified by the Bench, and agreed by Mr Terry to be:

(a) An error by the District Court Judge in not permitting statements made by his co-offender to Constable Anderson to be available to the jury.
(b) Allowing in evidence an unsigned statement by the appellant.
(c) Inappropriate interviewing of the appellant by Constable Watson.
(d) Failures with regard to ESR analysis and a lack of timely disclosure of an ESR opinion.
(e) Evidence at trial that the appellant was left-handed but an allegation that the complainant was struck by a right hand.

Non-admission of statements

[6]	The first concern relates to the jury not hearing the contents of two statements made to Constable Anderson by the appellant’s brother. The admissibility of this material was subject to a specific ruling by Judge Holderness on 22 May 1996.
[7]	Constable Anderson had interviewed Mr Brian Terry. The police officer was in Australia at the time of trial. Under s 184(1) of the Summary Proceedings Act 1957, an application could have been made for a direction with regard to the reading of that material. The material was entirely exculpatory. The Crown did not propose to seek an order.
[8]	The Judge’s Minute records that both the appellant and his brother "made it quite plain that they would not consent to the Constable’s deposition being read".
[9]	The Judge concluded that, in the absence of an application by the Crown, and in view of the accused’s firm opposition, it would be inappropriate for him to direct that the Constable’s deposition be read. We can see no basis upon which complaint can now be made with regard to that decision.
[10]	Further, as this Court recently noted in R v Sturgeon [2005] 1 NZLR 767, there is no basis for the admission of a totally exculpatory statement in any event.
[11]	The entire issue would be of only academic interest now as the jury would have to be directed that out-of-court statements have no evidential value in the trial of a co-accused. What was said by Mr Brian Terry in a police interview would be irrelevant to the case of Mr Robert Terry.

Evidence of the unsigned statement by the appellant

[12]	In the course of giving evidence, Constable Watson spoke of discussions he had had with the appellant and his brother on 20 April 1995 when he had travelled to their home two days after the alleged offending.
[13]	The police officer was granted leave to refer to notes made at the time. These were substantially what he had written down in the course of questioning the suspects.
[14]	At the end of the interview the appellant was given the opportunity to sign the notes but did not do so. In accordance with well established practice, there was therefore not a written statement which could be produced as an exhibit. The document was not produced. The police officer (with the Court’s permission) referred to it as notes to refresh his memory as to the conversation which had taken place between them.
[15]	The evidence of what was said was as a statement against interest in the traditional confessional sense. No error is demonstrated in the way this aspect was dealt with in the trial.

Conduct of the interview by Constable Watson

[16]	A number of shortcomings were alleged to occur with regard to this interview.
[17]	First, a remark about Robert Terry being charged and the appellant’s reply. This point was specifically dealt with in a voir dire conducted on 23 May 1996 in the course of the hearing. The Judge held that this material should not be admitted in evidence. There is no suggestion that his ruling was not complied with.
[18]	Secondly, complaint is made that there was no video recording of the statement. We accept the Crown’s submission that there is no requirement for this to be done although it is a prudent course of conduct to follow when practicable. There was specific evidence that there was no equipment available at Reefton. The evidence was that, at times when equipment would have been available, there was no indication from the appellant that he wished to avail himself of such a facility.
[19]	Thirdly, it is complained that the notes from which the Constable refreshed his memory were made 20 minutes after the interview. The evidence was that the notes were not written up from memory but rather that informal notes were taken on a separate piece of paper and used as an aide memoir when the police officer committed to a more permanent form in his notebook what had been said.
[20]	The appellant was given an opportunity to read those notes. There is no suggestion that there was any hint in the evidence that they were not accurate or that Mr Terry wished to sign a typed version rather than a handwritten version of them.
[21]	Finally, the fact that because an interview which had taken 20 minutes to conduct led to material which could be read back in four minutes appears to be of no probative significance.

ESR involvement

[22]	There was an ESR analysis of a red polyester sweatshirt and woollen jersey seized by the Police from the appellant’s co-accused which found that the fibres discovered on the rock used in the second phase of the assault could not have come from these items of clothing.
[23]	That ESR report was only made available to the appellant and his brother at the trial. It is dated 3 October 1995. It should have been released much earlier. The evidence was that it was received by the Crown from the Police on the same day that it was disclosed to the defence in the District Court.
[24]	We accept the Crown’s submission that, although this sequence of events and delay was regrettable, no injustice could have resulted from the late disclosure. The existence and provenance of fibres on the rock could not have been of material significance in the determination of the central issue at the trial as to who had been the aggressor and whether the acts of the Terrys had been in self-defence.
[25]	There was a secondary aspect concerning the ESR, namely that there was no analysis performed in respect of a pink cotton t-shirt which was introduced into the trial by the appellant. As the Crown noted, it had always been open to Mr Robert Terry to request that there be an analysis of that garment if he considered the result could be of probative value. There is no suggestion that ever occurred. But equally an ESR report on the pink t-shirt would not have been of assistance in resolving a crucial fact in issue.

The preferred hand of each brother

[26]

The fact that Mr Brian Terry was right–handed was specifically raised in evidence when Mr Robert Terry was cross-examined by the appellant. Further, Mr Brian Terry gave uncontroverted evidence that Mr Robert Terry was left-handed. There was evidence as to the nature of the initial assault and particularly whether a punch was delivered by a right or left fist to which this could have been relevant. These matters were all before the jury to be assessed as it saw fit and no admissibility or trial fairness issue arises with regard to the point.

Conclusion

[27]	We are accordingly satisfied that, taken separately or as a whole, nothing by way of significant error has been demonstrated and the extent to which there had been any deviation from best practice has not led to any miscarriage of justice.
[28]	The appeal against conviction must accordingly be dismissed.

Sentence appeal

[29]	The appeal document was equivocal as to whether there was also an appeal against the sentence imposed. At the hearing before us Mr Terry confirmed that there was no challenge to the sentence so that aspect of the appeal is also dismissed.

Solicitors:
Crown Law Office, Wellington