Filer v The Queen - [2012] NZCA 517

IN THE COURT OF APPEAL OF NEW ZEALAND

CA153/2012
[2012] NZCA 517

BETWEEN SCOTT WARREN FILER
Appellant

AND THE QUEEN
Respondent

Hearing: 31 October 2012

Court: Harrison, Chisholm and Ronald Young JJ

Counsel: R M Mansfield for Appellant
M J Lillico for Respondent

Judgment: 7 November 2012 at 3 pm

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.

B The appeal against conviction and sentence is dismissed.

REASONS OF THE COURT

(Given by Harrison J)

Introduction

Scott Filer was found guilty on seven counts of methamphetamine manufacturing and dealing following a trial before Keane J and a jury in the High Court at Auckland in November 2011. He was subsequently convicted and sentenced to a term of 17 years and four months imprisonment on two manufacturing counts with shorter concurrent terms on each of the remaining counts.[1]
[1] R v Filer [2012] NZHC 149.
Mr Filer appeals against his conviction on the grounds that, first, he was unfairly tried jointly with his alleged co-offender, Steven Mehrtens, who was absent; and, second, Keane J’s jury directions at trial were inadequate to protect him against the consequential prejudice. Mr Mansfield accepts that either ground must give rise to a miscarriage of justice.
Mr Filer also filed but now has abandoned an appeal against his sentence.
Mr Filer was sentenced on 3 February 2012. He did not file his appeal until 20 March 2012. The Crown does not oppose his application for leave granting an extension of time to appeal.

Background

Mr Filer was charged jointly with Mr Mehrtens and Messrs Phap Ly and Hoang Quoc Nguyen. The Crown case was that Messrs Filer and Mehrtens were at the centre together of a large scale drug dealing enterprise; Messrs Ly and Nguyen occupied lesser roles. The modus operandi was to purchase large commercial quantities of pseudoephedrine and then arrange for its production into methamphetamine and sale.
As with many cases of this type, the Crown relied heavily on evidence of intercepted communications covering a lengthy period. The police had obtained warrants for the purposes of conducting surveillance of activities in Auckland, the Bay of Plenty, and the Coromandel Peninsula.
Mr Mehrtens was granted electronic bail pending trial. However, he apparently absconded in December 2010. The High Court later issued a warrant for his arrest. However, the police were unable to locate him and execute the warrant. The Crown then applied for a ruling under s 344A of the Crimes Act 1961 that Mr Mehrtens be tried in his absence. Copies of the application were served on counsel for Mr Filer and his two remaining co-accused. Mr Mansfield, who now appears for Mr Filer, was then representing Mr Ly.
Counsel for Mr Filer and his two co-accused did not take any steps to oppose the Crown’s application. Priestley J heard and allowed the application on 8 September 2011.[2]
[2] R v Mehrtens HC Auckland CRI-2011-404-47, 8 September 2011.
The trial duly commenced on 14 November…

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 Filer v The Queen

Details

AGLC: Filer v The Queen [2012] NZCA 517
Case: [2012] NZCA 517
Decision Date: 7 November 2012

CaseChat Overview and Summary

Scott Filer appeals against his conviction on seven counts of methamphetamine manufacturing and dealing, following his trial in the High Court at Auckland. Filer argues that his trial was unfairly conducted jointly with his alleged co-offender, Steven Mehrtens, who was absent. He also contends that the jury directions were inadequate to protect him against the consequential prejudice. Filer's appeal against his sentence has been abandoned. The primary legal issues in this case are whether the trial judge erred in allowing the trial to proceed in Mehrtens' absence, and whether the jury directions were adequate to protect Filer against prejudice arising from Mehrtens' absence.

The Court of Appeal held that Priestley J did not err in allowing the trial to proceed in Mehrtens' absence. The Court found that Mehrtens' absence flowed from deliberate actions on his part, which could be construed as a waiver of his right to appear. The Court further held that adjourning the trial would not guarantee Mehrtens' attendance and would disrupt or delay the right of the remaining accused and the Crown to a prompt trial. The Court noted that any adverse inference drawn from Mehrtens' absence would be an improper conclusion to draw and would be met by a strong and firm direction by the trial judge. The Court also held that Filer was not heard on the Crown's application because his counsel did not take any steps to oppose it. However, it was not unfair to hear the application in Mehrtens' absence as he was represented by counsel.

The Court further held that Keane J adequately directed the jury about the risk of prejudice arising from Mehrtens' absence. The Court noted that Keane J directed the jury not to speculate about why Mehrtens was absent and to treat him as any other person who stood accused at a trial and who was present. The Court also noted that Keane J directed the jury against drawing adverse inferences or conclusions about any association between the accused and emphasised that the case against each must be assessed individually. The Court held that Keane J's approach cannot be faulted and that the jury's verdicts stand as verification of its adoption of the Judge's directions.

The application for an extension of time to appeal is granted. The appeal against conviction and sentence is dismissed.

Orders