Drever v The Queen - [2016] NZCA 249

IN THE COURT OF APPEAL OF NEW ZEALAND

CA457/2014
[2016] NZCA 249

BETWEEN	DEAN JOHN DREVER Appellant
AND	THE QUEEN Respondent

Hearing:	31 May 2016
Court:	Randerson, Woodhouse and Wylie JJ
Counsel:	M B Meyrick for Appellant A J Ewing for Respondent
Judgment:	9 June 2016 at 9:00 am

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

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REASONS OF THE COURT

(Given by Randerson J)

Mr Drever appeals against his conviction after a jury trial in the District Court in May 2014 on one count of arson under s 267(1)(a) of the Crimes Act 1961.[1] Judge Collins presided and sentenced Mr Drever on 25 July 2014 to five years imprisonment with a minimum period of imprisonment of three years.[2]
[1]At an earlier trial in 2013 the jury was unable to agree.
[2]R v Drever DC Auckland CRI 2011-004-021680, 25 July 2014.
Mr Meyrick advanced Mr Drever’s appeal against conviction on the ground that a miscarriage of justice had arisen because:
(a)The evidence of a Mr Devich should not have been admitted. This related to an occasion when Mr Drever expressed an intention to kill the victim of the arson (Mr Marsh).
(b)A defence expert was not permitted to visit the scene of the fire before giving his opinion.
The only ground raised in support of the sentence appeal is that the Judge erred in imposing the three year minimum period of imprisonment.

The facts

The Crown case was that Mr Marsh occupied a workshop unit at Avondale. At about 6.45 am on 13 November 2011 he was woken to the sound of breaking glass and someone yelling “are you in there cunt?”. He saw a man crouched outside the window of the unit doing something with various items including an aerosol can, tape and a jerry can. He recognised this person as Mr Drever whom he had known for about 20 years.
Within a short period, the unit burst into flames. Mr Marsh saw Mr Drever leaping the fence and leaving the property. An occupant of a neighbouring workshop unit, Mr Cosgrove, also recognised Mr Drever and came to the aid of Mr Marsh. He was eventually able to extinguish the fire. A fire investigation expert concluded the fire had been deliberately lit and that hydrocarbons found at the scene were consistent with petrol being used as an accelerant.
Although Mr Marsh had known Mr Drever for many years, he ceased contact with him about five years before the date of the fire when Mr Drever began to make unfounded allegations against him. Mr Marsh’s evidence was that Mr Drever had also threatened to kill him.
When interviewed by the police, Mr Drever denied responsibility for the offending. He said he had been at the casino that day. He did not give evidence at trial but called evidence from an expert witness (Mr Mackay). Apart from a casino ticket issued that day, no evidence was called to support a defence of alibi. The casino…

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 Drever v The Queen

Details

AGLC: Drever v The Queen [2016] NZCA 249
Case: [2016] NZCA 249
Decision Date: 9 June 2016 at 9:00 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Dean John Drever appealed against his conviction and sentence for arson, which were made by Judge Collins in the District Court in May 2014. The appeal was heard on 31 May 2016 by Randerson, Woodhouse, and Wylie JJ. The central issue in the appeal was whether the trial judge erred in admitting evidence of a prior threat made by Drever against the victim, Mr. Marsh, and in not permitting the defence expert to visit the site of the fire. The Crown argued that the evidence was relevant to show Drever's motive and propensity for hostility towards Marsh. The court held that the evidence was properly admitted as it was relevant to the issues of identification and the intent behind the arson. The court further held that there was no basis for appellate intervention on the ground that the defence expert was not permitted to visit the site of the fire as there was no evidence to suggest that a site visit would have made a difference to the expert's opinion.

The court also considered Drever's argument that the judge erred in imposing a three-year minimum period of imprisonment. The court found that the judge was entitled to consider the severity of the impact on the victim, the brazen and premeditated nature of the crime, and the risk to life created by the arson. The court concluded that the sentence imposed was justified and there was no error of approach by the judge.

The appeal against conviction and sentence was dismissed. No further orders were made.

Orders