Devries v R - [2014] NZCA 324

IN THE COURT OF APPEAL OF NEW ZEALAND

CA542/2013
[2014] NZCA 324

BETWEEN	BERNARD ALAN DEVRIES Appellant
AND	THE QUEEN Respondent

Hearing:	17 June 2014
Court:	Harrison, Keane and MacKenzie JJ
Counsel:	J H Wiles for Appellant A F Pilditch for Respondent
Judgment:	14 July 2014 at 12.00 pm

JUDGMENT OF THE COURT

AAppeal against conviction dismissed.

B Appeal against sentence dismissed.

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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…

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 Devries v R

Details

AGLC: Devries v R [2014] NZCA 324
Case: [2014] NZCA 324
Decision Date: 14 July 2014 at 12.00 pm

CaseChat Overview and Summary

Bernard Devries appealed against both his conviction and sentence following his retrial for manufacturing methamphetamine in Karaka. The appeal was dismissed by the Court of Appeal of New Zealand, which found no merit in any of the grounds raised. The appellant's first ground of appeal was that the trial Judge misdirected the jury in his question trail by asking if they were sure that the appellant was involved in the manufacture, without specifying the role he needed to have played. The Court found that the Judge's directions were clear and concrete when taken as a whole. The appellant's second ground of appeal was that the Judge failed to caution the jury adequately about the Crown's reliance on the evidence of two co-accused who stood to benefit from testifying against him. The Court found that the Judge had given the jury an adequate direction on this point. The appellant's third ground of appeal was that his trial counsel had failed to call a witness who would have confirmed that the appellant had no interest in the Mercedes Benz car found at the property. The Court found that the appellant had not provided sufficient information to his counsel to enable him to call the witness, and in any event the appellant had not produced the witness on appeal to demonstrate the value of his evidence. The appellant's fourth ground of appeal was that his counsel had failed to use a work record to challenge the evidence of a Crown witness as to the amount of work the appellant had done for his brother. The Court found that the appellant had not produced the work record on appeal, and so could not demonstrate that it would have assisted his defence. The appellant's final ground of appeal was that the trial Judge could not properly hold him accountable for manufacturing 1.5 kilograms of methamphetamine, as the only evidence of actual manufacture was 113 grams of pseudoephedrine extract. The Court found that the Judge had a sound basis in the evidence on which to conclude that a large scale commercial operation was taking place. The appeal against conviction and sentence was dismissed.

Orders