Devries v R
[2014] NZCA 324
•14 July 2014 at 12.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA542/2013 [2014] NZCA 324 |
| BETWEEN | BERNARD ALAN DEVRIES |
| AND | THE QUEEN |
| Hearing: | 17 June 2014 |
Court: | Harrison, Keane and MacKenzie JJ |
Counsel: | J H Wiles for Appellant |
Judgment: | 14 July 2014 at 12.00 pm |
JUDGMENT OF THE COURT
AAppeal against conviction dismissed.
B Appeal against sentence dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Keane J)
Bernard Devries was found guilty at his retrial before a Judge and jury in the Papakura District Court on charges of manufacturing methamphetamine in Karaka. He was convicted and sentenced to 16 years imprisonment with a minimum period of eight years, along with concurrent terms of between three and five years for possessing related equipment, precursor substances and materials, and for possessing and supplying methamphetamine.[1] He appeals his conviction and sentence.
[1]R v Devries DC Manukau CRI-2010-057-1017, 22 July 2013 [Sentencing Notes].
On 20 May 2010 the police searched under warrant the Karaka property at which manufacture had occurred. In the basement garage they found a laboratory of unusually large capacity, considerable related material, and evidence of manufacture, namely 113 grams of pseudoephedrine extract. Also found were a bag containing a Mercedes Benz car first aid kit in which there was 165 milligrams of methamphetamine and $94,840 cash. There was evidence of wider related offending elsewhere.
After the search the police arrested those at the address, the tenants, Jeremy Smith and Arlene Crosbie, Mr Devries and a fourth person, Boyd Norgrove. In statements Mr Smith and Ms Crosbie made to the police soon afterwards they admitted that they had permitted Mr Devries to manufacture methamphetamine in their basement garage between 28 March–20 May 2010 and that Mr Smith had assisted Mr Devries, as had Mr Norgrove.
At Mr Devries’ retrial in Papakura, as at his initial trial in Manukau, Mr Smith and Ms Crosbie were the Crown’s principal witnesses. By then Mr Smith had been sentenced to imprisonment for five years for manufacturing, possessing and supplying methamphetamine and Ms Crosbie sentenced to home detention for nine months for permitting the Karaka property to be used for manufacture. Each had received a 60 per cent discount for pleading guilty at the earliest opportunity, for co‑operating with the police, and for offering to give evidence against Mr Devries.
At trial the Crown also linked Mr Devries to the laboratory, and the bag containing the methamphetamine and cash, in other ways. One was that in the garage there was a Louis Vuitton bag containing 12.7 grams of methamphetamine, a set of scales, and a power account in Mr Devries’ name. The Crown’s case also was that the first aid kit containing the methamphetamine and the cash must have come from a Mercedes Benz car parked outside the house at the time of the search and that this was equally significant.
In the boot of that car there was further laboratory equipment and 19 kilograms of iodine. In another Louis Vuitton bag on the back seat of the car there was pseudoephedrine and iodine. The car was registered in Mr Smith’s name, but the Crown’s case was that it belonged to Mr Devries. His driver’s licence was in the sun visor. His cell phone was in the centre console, and it contained texts he had sent and photographs of his girlfriend. There was a set of keys with a Louis Vuitton key holder. He was wearing rings for which there were recent receipts or certificates of ownership in the car. He is an occasional artist and, in the bag on the back seat, there were art materials consistent with canvasses found in the bag in the garage containing the methamphetamine and cash. On a half envelope, on which his girlfriend’s fingerprint appeared, there were estimates of manufacture costs and yields.
At his retrial, in contrast to his first trial, Mr Devries did not give evidence. Nor did he call evidence. His defence at trial was that Mr Smith and Ms Crosbie were the manufacturers and suppliers, that he played no part in their offending, and that they had made him their scapegoat to obtain much lighter sentences. It was Mr Smith who owned the Louis Vuitton bag in the garage; he was to pay the power bill to offset a debt owed to Mr Devries by his brother. It was Mr Smith who owned and used the Mercedes Benz car. The jury was unconvinced.
Grounds of appeal
On his appeal against conviction, for the manufacture offence principally, Mr Devries first contends that the trial Judge, Judge Moses, misdirected the jury, or did not direct it adequately, when in his question trail he instructed the jury to decide whether Mr Devries was guilty of that offence by first answering the question, “Are you sure that Mr Devries was involved in this manufacture?” That took no account of the part played by Mr Smith and Ms Crosbie.
Secondly, Mr Devries contends, the Judge should have directed the jury to be cautious when deciding whether to accept the evidence of Mr Smith and Ms Crosbie, and when deciding what weight to give their evidence. To justify the heavily reduced sentences they had received, they had every reason to continue to make him their scapegoat; to minimise their part in the manufacture and to maximise his; in short, to lie.
Thirdly, Mr Devries contends, his trial counsel, Paul Dacre QC, did not, as he was instructed to do, call a witness called Daniel Moore who was crucial to his defence, especially as Mr Devries elected not to give evidence himself. Mr Moore was to confirm that until March 2010 Mr Devries owned and drove a BMW car, and had no interest in or any need for the Mercedes Benz car. He was also to confirm that Mr Devries had carried out significant work for Mr Smith’s brother for which Mr Smith had agreed to accept some responsibility by paying the power bill found in the bag in the garage.
Fourthly, Mr Devries contends, Mr Dacre also failed to cross-examine Mr Smith’s brother, who was a Crown witness, as to the extent of the work that Mr Devries had carried out over a period of 18 months on four properties in Whitianga belonging to the Smith family, in respect of which Mr Smith’s brother still owed him a significant debt. He contends that he gave to Mr Dacre for his retrial a detailed account of that work, in diary format, which Mr Dacre photocopied and was instructed to use.
On his sentence appeal Mr Devries contends that the Judge wrongly held him accountable for manufacturing 1.5 kilograms of methamphetamine, the quantity admitted by Mr Smith. He contends that Mr Smith was unreliable and inconsistent and that no safe inference as to the quantity manufactured could be taken from the scale of the laboratory or of the materials for manufacture. There was a critical lack of pseudoephedrine.
Finally, Mr Devries contends that there is an unjustifiable disparity between his sentence for the manufacturing offence and that imposed on Mr Smith. He accepts, however, that this ground has no basis if he fails on his conviction appeal. If he succeeds, of course, it will become redundant.
First ground: question trail
In his first ground of appeal, Mr Devries contends that, in directing the jury to decide first of all whether he was “involved in the manufacture”, the Judge did not identify what part he had to have played in the manufacture in order to have committed the offence with which he was charged. That question took no account of the admitted parts of Mr Smith and Ms Crosbie. We are unable to agree.
In summing up on that count the Judge began by saying that it was a representative count. The Crown’s case was that there had been manufacture at the property between 28 March–20 May 2010 but could not be specific as to when. The Judge told the jury, however, that their task was simplified by the fact that Mr Devries had admitted that methamphetamine had been manufactured at the address between 28 March–20 May 2010 on at least one occasion.
What they needed to decide, the Judge told the jury, was whether Mr Devries was “involved in that manufacture”; and as to that he began by saying this: “To find Mr Devries guilty on this count you must be satisfied beyond reasonable doubt that he … manufactured methamphetamine on at least one occasion between those two dates.”[2] After that he read out to the jury the first question he posed in the question trail, the adequacy of which is in issue, and immediately identified what part the Crown contended Mr Devries must have played in order to be guilty of the offence: “Mr Devries was the kingpin of the operation … the cook and operator.”[3]
[2]R v Devries DC Papakura CRI-2010-057-1017, 17 April 2013 [Summing-up] at [25].
[3]At [26].
After that the Judge summarised the evidence on which the Crown relied to establish that Mr Devries was the principal offender: that of Mr Smith and Ms Crosbie, the linking evidence found on the search, and significant text traffic. He next put the defence case, that Mr Smith and Ms Crosbie were the true manufacturers with a motive to lie, and the defence attack on the ways in which the Crown linked him by inference to the manufacture. Once the Judge had done that, he returned to his question for the jury and instructed them that they had to be sure that Mr Devries was “involved” in the manufacture and that, if they were not sure, they were to acquit.
In these directions, taken as a whole, the Judge directed the jury fully and clearly as to what they had to decide. His first question in the question trail was not, as Mr Devries contends, simplistically abstract. When set against his summary of the Crown and defence cases, as it must be right to do,[4] the question trail was clear and concrete. To find Mr Devries guilty of the offence, the jury had first to be sure that he was the kingpin, the cook and the operator. If they were not sure, they were to acquit. Nothing more was called for.
Second ground: Smith-Crosbie caution
[4]Singh v R [2014] NZCA 306 at [12] and [29].
Secondly, Mr Devries contends, the Judge failed to instruct the jury that the Crown’s case rested principally on the evidence of Mr Smith and Ms Crosbie, who had every reason to make him a scapegoat, and that they had to be cautious when deciding whether to accept that evidence or give any weight to it.[5] Here too we are unable to agree.
[5]Evidence Act 2006, s 122.
Here too the Judge began by fully summarising the Crown and defence cases on the issue, beginning with the Crown case:[6]
… the Crown says to you that both Mr Smith and Ms Crosbie can be relied upon, they both had agreed to tell the truth and were disarmingly candid about what had gone on and their own involvement. … [T]hey were ideally placed to comment on what was going on at the house, and the Crown says that they may have already received a discount for their assistance but there was nothing unusual about this and it is no easy task, “No walk in the park” was the way in which it was described for someone who was a sentenced prisoner such as Mr Smith to give evidence. The Crown says that Mr Smith and Ms Crosbie have been left to carry responsibility for what was Mr Devries’ operation and that their sense of injustice at that drove them to give evidence against Mr Devries.
[6]Summing-up, above n 2, at [28].
The Judge then reminded the jury that Mr Devries’ case was that the manufacture was “Mr Smith’s operation” and that the Mercedes Benz belonged to Mr Smith, and then said this:[7]
The defence says that the evidence of Mr Smith and Ms Crosbie should not be accepted. The suggestion that he is a man to be relied upon … is ironic. … he was not as up front about what was going on, about who was at the house, as both he and the Crown would suggest to you. The defence says that both … Ms Crosbie and Mr Smith gained sentencing benefits for testifying, they were both long-term addicts who wanted to distance themselves from what they were involved in by placing responsibility for their own actions on to Mr Devries.
[7]At [34].
Against that background the Judge then gave the jury this direction:[8]
It is accepted … by the Crown that both Mr Smith and Ms Crosbie did receive a benefit in term of the sentences they received from the Court because of their willingness to give evidence against Mr Devries. It is not accepted by the Crown that there was any other benefit for Mr Smith or Ms Crosbie. The defence point here to the reduction in sentence as being a motive for them to lie and to place responsibility for their own roles on Mr Devries. I have already covered what the Crown has said in response to this, but because they have received a benefit in terms of the reduction to their sentences for agreeing to testify, whilst you may accept everything that they say I do caution you to be careful before you decide to accept their evidence and be careful in deciding how much weight you should place on that evidence.
[8]At [40].
Here too, we are satisfied the Judge directed the jury fully and accurately as to why they needed to be cautious when deciding whether to accept the evidence of Mr Smith and Ms Crosbie and what weight, if any, to give their evidence. Here too nothing more was called for.
Third ground: uncalled Moore evidence
Thirdly, Mr Devries contends in his affidavit on the appeal, he instructed Mr Dacre before the retrial to call Daniel Moore to confirm that he had carried out extensive work for Mr Smith’s brother in Whitianga, and had owned and used his BMW car until it was repossessed in March 2010.
In his affidavit, Mr Devries said, Mr Moore was ready to give this evidence at his first trial and had stayed in Auckland during that week. At his retrial Mr Moore was to be equally available, but was on standby in Whitianga on two hours notice. In his affidavit in response Mr Dacre accepts that Mr Devries did mention Mr Moore to him. But, he says, Mr Devries never identified Mr Moore as a potential witness who might be able to give relevant evidence and, significantly Mr Devries had made an admission of fact that his BMW car had been repossessed in mid or late 2009. In his written submissions, Mr Wiles challenged the decision to make that admission, because the appellant maintained the repossession occurred later, in March 2010. He did not pursue that ground in his oral submissions.
When Mr Dacre was cross-examined he said that, if Mr Moore had been able to give evidence on the issues Mr Devries identifies, he would have been a helpful witness. Mr Dacre would have been more than willing to call him, but not until after he had met him, assessed him and briefed his evidence. That Mr Moore might have had to travel two hours to come to Court was neither here nor there. They never met.
Mr Devries, in his evidence on the appeal, did not say that Mr Dacre ever met Mr Moore. He said that Mr Dacre had told him before the second trial that Mr Moore need not travel to Auckland as he had for the first trial. He could remain in Whitianga, on standby, and come as and when required. The decision not to call Mr Moore, he says, was not his. It was taken by Mr Dacre, or on his advice.
On this issue we accept the evidence of Mr Dacre, and reject that of Mr Devries. Having seen and heard both witnesses under cross-examination, we prefer Mr Dacre’s evidence wherever it differs from that given by Mr Devries. We accept that Mr Devries did not instruct Mr Dacre as he alleges and that Mr Dacre did not advise Mr Devries that Mr Moore need not travel to Auckland and could remain in Whitianga on standby. More importantly, Mr Devries did not file on appeal an affidavit from Mr Moore about the evidence he would have given if called as a witness at trial. It is simply not possible for us to assess whether he would have been able to materially assist Mr Devries defence. And while we do not know what if anything Mr Moore might have said about work Mr Devries did for Mr Smith’s brother, who denied that he did anything of significance, Mr Devries’ own evidence on this appeal does not assist him as to the Mercedes Benz car. As Mr Dacre said in his evidence, it did not matter when the BMW car was repossessed. What mattered was whether Mr Devries had been using the Mercedes Benz car at a time proximate to the search.
On the appeal, Mr Devries’ own evidence was that he had use of the Mercedes Benz car “leading up to the days previous to Jeremy Smith’s house being busted”, but had dropped it off at the Karaka property on 17 March 2010, three days before the search. Yet on the day of the search the police found in that car Mr Devries’ licence and cell phone and other items consistent only with the inference that at that date he still possessed it.
The jury had a sound basis in the evidence on which to conclude that what was found in the Mercedes Benz car linked Mr Devries to the laboratory and the first aid kit in the bag in the basement garage, containing the methamphetamine and cash.
Fourth ground: failure to use work record
Fourthly, Mr Devries contends in his affidavit on the appeal that Mr Dacre did not, as he was instructed to do, challenge the evidence of Mr Smith’s brother at trial using a comprehensive work record, in diary form, that he contends he prepared for the purpose.
In his affidavit in reply, Mr Dacre did not respond to this specifically. Rather, he said that he had put directly to Mr Smith, himself, that he was to pay the power bill to assist his brother with the debt Mr Devries alleged; and that Mr Smith denied it, even though he admitted that he had owed money to Mr Devries in the past and sometimes been slow in paying it.
When cross-examined, Mr Dacre agreed that Mr Devries had said that he had carried out a lot of work on the Smith property in Whitianga. But he could not recall ever having been given a work record of the order Mr Devries alleges, even when told that it was written in red biro. Here too we accept the evidence of Mr Dacre, and reject that of Mr Devries.
If Mr Devries had equipped Mr Dacre with such a distinctive and meticulous record, Mr Dacre would surely have used it to cross-examine Mr Smith’s brother, even though, as he said, there would have been little point because the brother was a believable witness and Mr Devries had elected not to give evidence.
That apart, Mr Devries, in evidence on the appeal, said that when he gave this work record to Mr Dacre, a copy was taken; and whether or not Mr Dacre retained a copy, Mr Devries would surely have done so. He might even perhaps have retained the original. Yet he did not produce it on the appeal. Nor did he explain why he could not do so. All he did was to assert that he had prepared it. We find that implausible.
Fifth ground: scale of manufacture
In his final ground of appeal, that as to sentence, Mr Devries contends that the Judge could not, on the evidence at trial, hold him accountable for the manufacture of 1.5 kilograms of methamphetamine. Mr Smith’s evidence, he contends, was inconsistent and unreliable; and any inference taken from the scale of equipment and materials found had to be speculative. Here too we are unable to agree.
In setting the starting point for sentence, the Judge began by saying that Mr Dacre had pointed out that the only evidence of actual manufacture was the 113 grams of pseudoephedrine extract located. The Judge also accepted that Ms Coxon, the ESR scientist, had not been able to be specific as to the quantity that might have been manufactured. But, he said, he was able to rely on Mr Smith’s evidence, the amounts of cash and precursor substances located. Taken together, he said, they painted a picture “of a large scale commercial operation” and thus he concluded:[9]
On the evidence I have before me there is certainly evidence that up to one- and-a-half kilograms of methamphetamine had been manufactured, and there was certainly all the equipment, along with other precursor substances, present for the possibility of other ongoing large scale manufacturing …
[9]Sentencing Notes, above n 1, at [8].
Earlier in his remarks on sentence the Judge had set out precisely what he considered that evidence to be:[10]
... the Clan Lab that was located at the address was described by an ESR scientist as being in the top 10 or 20 out of the 800 to 1000 Clandestine laboratories she has attended. There were significant quantities of essential chemicals required to manufacture methamphetamine. They included almost 21 kilos of iodine, which could have yielded more than 15 kilos of methamphetamine, 13 litres of hydro phosphorus acid with a street value of around $60,000, 418 grams of pink tablets containing pseudoephedrine, a glass baking dish containing 113.8 grams of a crystalline material, which was mainly pseudoephedrine hydrochloride. There were other quantities of liquid which were not analysed but from the surrounding circumstances are certainly evidence that they had been used or were involved in the manufacturing process.
In addition Mr Smith … gave evidence that you had been the person responsible for the operation and had conducted five or six cook ups at the address before the police raid in May 2010. Between 100 and 150 grams of methamphetamine were produced in each manufacture. Mr Smith himself pleaded guilty and was sentenced on the basis that he had accepted being involved in the manufacture of some 1.6 kilos of methamphetamine.
In addition there was $94,840 in cash located and approximately 180 grams of methamphetamine as finished product. These items were additional indicators of a large scale commercial operation. …
[10]At [4]–[6].
In this analysis, we are satisfied the Judge had a sound basis in the evidence on which to hold Mr Devries accountable for a large scale commercial manufacture towards the upper end of band four of Fatu.[11] As was said in that case:[12]
Cases involving the manufacture of methamphetamine can be problematical. Whether the scale of offending can be assessed depends very much on chance; the evidence of manufacture on hand at the time of police intervention, volumes of precursor materials located and the availability of extrinsic evidence (e.g. in the form of electronic intercepts).
And yet the Court further held:[13]
Obviously it is open to a sentencing Judge to make findings of fact as to the extent of past offending based on evidence, perhaps in the form of admissions, intercepted communications, cash movements, tick lists and chemical purchases. …
In the same vein, this Court said in Baird v R, “[i]t would be rare for the Crown to be able to prove beyond reasonable doubt the exact amount”.[14]
[11]R v Fatu [2006] 2 NZLR 72 (CA).
[12]At [37].
[13]At [38].
[14]Baird v R [2012] NZCA 430 at [49].
Mr Wiles contends that Mr Smith’s evidence at the retrial, on which the Judge relied, that there were five or six cook ups before the police search, each yielding 100–150 grams, was inconsistent with his first trial evidence of three or four cook ups yielding 60, 180 or 250 grams. But at the retrial Mr Smith also spoke of yields between 100–250 grams; and, more materially, on his own sentence accepted that he was accountable, if only as a party, for the manufacture of 1.6 kilograms.
The Judge was entitled to rely on that concession against interest, set against the wider evidence. He was equally entitled to fix the starting point having regard to Mr Devries’ capacity to continue manufacturing on a large scale. The capacity of the laboratory was unusually large and on the day of the search there were very significant quantities of materials to hand. That there happened not to be an equally large quantity of pseudoephedrine is of no moment.
On any view, the Judge was entitled to conclude, as Lang J had said when sentencing Mr Smith, that Mr Devries, as the principal offender, was to be sentenced from a 16–17 year starting point. The 17 year starting point the Judge took was clearly open to him. As Mr Devries himself accepts, he cannot advance his further disparity argument, having failed on his conviction appeal and we need not refer to it.
Result
We dismiss Mr Devries’ appeal against his conviction and his sentence.
Solicitors:
Crown Law Office, Wellington for Respondent
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