Dean John Drever v The Queen - [2016] NZSC 92

IN THE SUPREME COURT OF NEW ZEALAND

SC 64/2016
[2016] NZSC 92

BETWEEN	DEAN JOHN DREVER Applicant
AND	THE QUEEN Respondent

Court:	Glazebrook, Arnold and OʼRegan JJ
Counsel:	Applicant in person A J Ewing for Respondent
Judgment:	27 July 2016

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Mr Drever seeks leave to appeal against a Court of Appeal decision dismissing his appeal against conviction and sentence for arson.[1]

Background

[1]Drever v R [2016] NZCA 249 (Randerson, Woodhouse and Wylie JJ).

In November 2011 Mr Marsh woke to the sound of glass breaking. His evidence was that, after going to investigate, he saw Mr Drever setting a fire on his doorstop. The fire spread to the inside of the unit.
Mr Drever was charged with arson under s 267(1)(a) of the Crimes Act 1961. It was alleged that he intentionally or recklessly damaged Mr Marsh’s unit by fire and that he knew or ought to have known that danger to life was likely to ensue.
Mr Drever was convicted and sentenced to five years’ imprisonment with a three year minimum non-parole period. This was his second trial. The jury in the first trial had failed to reach a verdict.
The issues at trial were identity (Mr Drever said he was at the casino at the relevant time) and mens rea (whether the arsonist ought to have realised that the fire outside the unit was likely to cause danger to life).
The Crown called evidence from the victim, Mr Marsh, that there was a long history of hostility between him and Mr Drever and that Mr Drever had threatened on a number of occasions to kill him. There was evidence from another witness (Mr Devich) as to one instance of Mr Drever threatening to kill Mr Marsh.
The propensity evidence of Mr Devich had been ruled inadmissible at the first trial but was admitted at the retrial after a subsequent Court of Appeal decision had clarified that evidence related to motive (such as a defendant’s hostility towards the victim) could be relevant, particularly where (as here) identity was disputed.[2]
[2]R v Martin [2013] NZCA 486 at [22]–[24].
There was also conflicting evidence at trial by experts for the Crown and the defence as to whether the window had been broken before the fire or during and because of the fire.

Court of Appeal decision

Mr Drever was represented in the Court of Appeal but had also been given permission to file his own submissions (and he filed some 300 pages). His counsel in the Court of Appeal told the Court that he had isolated the points in his written submissions that he considered had merit and had dealt with them in argument. The Court was not persuaded that there was anything in Mr Drever’s personal submissions meriting the Court’s attention. The Court said:[3]
Our willingness on this occasion to receive personal submissions from Mr Drever should not be treated as a precedent. In…

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.

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Details

Case: [2016] NZSC 92
Decision Date: 27 July 2016

CaseChat Overview and Summary

Dean John Drever sought leave to appeal against his conviction and sentence for arson. The Supreme Court considered whether the Court of Appeal had erred in dismissing his appeal. Drever's arguments focused on the admission of certain evidence, the failure of his expert to visit the crime scene, and the severity of his sentence. The Crown argued that Drever's arguments were without merit and that the sentence was appropriate. The Court found that the trial judge was not bound by the previous ruling on propensity evidence, and that Drever's expert would not likely have gained anything from visiting the scene. The Court also found that Drever's sentence was appropriate and that there was no risk of a miscarriage of justice. Therefore, the application for leave to appeal was dismissed.

The Supreme Court found that the Court of Appeal had correctly considered the issues raised by Drever. The Court found that the admission of propensity evidence was justified and that there was no miscarriage of justice. The Court also found that the defence expert's failure to visit the crime scene did not result in a miscarriage of justice. The Court found that Drever's sentence was appropriate and that the risks he identified were generic. The Court found that the threshold for leave to appeal had not been met, and dismissed the application.

Orders