Apostolakis v The Queen - [2012] NZCA 138

IN THE COURT OF APPEAL OF NEW ZEALAND

CA407/2011
[2012] NZCA 138

BETWEEN JOHN ANGELO APOSTOLAKIS
Appellant

AND THE QUEEN
Respondent

Hearing: 14 March 2012

Court: O'Regan P, MacKenzie and Asher JJ

Counsel: D A Ewen and G Lowe for Appellant
K A L Bicknell for Respondent

Judgment: 4 April 2012 at 3.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

Table of Contents

Para No
Introduction  [1]
Verdict unreasonable  [13]
     The instruction sheet  [14]
     Other evidence  [22]
     Conclusion on reasonable verdict  [24]
The limitation placed on the defence closing  [25]
Misdirection on s 66(1) liability  [31]
Misdirection as to the meaning of the instruction sheet  [37]
Failure to edit the statement of Mr Kavaleros  [46]
Result  [49]

Introduction

The appellant, Mr Apostolakis, was one of a considerable number of accused who were charged following a Police investigation known as “Operation Pave”. Ultimately the trial to which this appeal relates proceeded against Mr Apostolakis and two other accused, Messrs Kavaleros and Bowyer.
Although there had been a considerable number of charges against Mr Apostolakis initially, at the conclusion of the trial, for various reasons that it is not necessary to traverse, Mr Apostolakis faced only one count of importing the Class B controlled drug MDMA (“ecstasy”) into Auckland on 27 January 2008. The particulars specified “a parcel addressed to Paul Walsh at an address 22/88 Nelson Street, Auckland”. The jury returned a verdict of guilty and this appeal is against his conviction.
The evidence against him was of a narrow compass. On 16 May 2007 a man purporting to be a Paul Walsh agreed to rent room 22 at 88 Nelson Street. A parcel arrived addressed to room 22 at 88 Nelson Street on 29 January 2008. That parcel contained the ecstasy.
There was no direct evidence that Mr Apostolakis was renting the room at the time or occupying it. The Crown did not argue that Mr Apostolakis was in fact Paul Walsh, and put the case on the basis that there was another person, Mr Matthew Frewer, who used the name Paul Walsh. He was said to be a leading figure in the importations before the Court.
The jury was informed that Mr Frewer had been convicted on a number of charges of supplying ecstasy and he was put forward as the central figure in the ring. He was importing large quantities of ecstasy tablets into New Zealand inside Harrods’ gift baskets. This was done by arranging to have the baskets delivered to rental addresses controlled by members of the group. Evidence was given at the trial that on four occasions baskets were delivered by courier to an address. Mr Frewer received the money paid for that ecstasy which he kept at the ASB Bank.
The Crown asserted that Mr Apostolakis was involved in the importation. It relied on two matters.
First, it relied on what was found when the Police carried out a covert search upon Mr Apostolakis’…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Apostolakis v The Queen

Details

AGLC: Apostolakis v The Queen [2012] NZCA 138
Case: [2012] NZCA 138
Decision Date: 4 April 2012

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Apostolakis v The Queen, CA407/2011 [2012] NZCA 138, was heard on 14 March 2012 and judgment was given on 4 April 2012. The appeal was brought by the appellant, Mr Apostolakis, who was convicted of importing the Class B controlled drug MDMA, commonly known as ecstasy, into Auckland on 27 January 2008. The appeal was against his conviction for this offence. The appeal hinged on the interpretation of an instruction sheet found in Mr Apostolakis' car, which allegedly instructed him to place an advertisement in a newspaper for a sub-tenancy, which was part of a scheme to import drugs into New Zealand. Mr Apostolakis argued that the verdict was unreasonable, that there were erroneous rulings, and that there were mistakes in the summing up. The Court found that the instruction sheet was a strong piece of incriminating evidence and that there was sufficient evidence for a jury to conclude beyond reasonable doubt that Mr Apostolakis had been involved in or been a party to the importation of ecstasy. The Court also found that the Judge dealt with the limitation placed on the defence closing correctly, that there was no misdirection on s 66(1) liability, that the Judge did not misdirect on the meaning of the instruction sheet or the inferences to be drawn, and that the failure to edit the statement of Mr Kavaleros did not prejudice the appellant. The appeal was dismissed.

Orders