Filer v The Queen
[2012] NZCA 517
•7 November 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA153/2012 [2012] NZCA 517 |
| BETWEEN SCOTT WARREN FILER |
| AND THE QUEEN |
| Hearing: 31 October 2012 |
| Court: Harrison, Chisholm and Ronald Young JJ |
| Counsel: R M Mansfield for Appellant |
| 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 2011. Messrs Kaye and Meyer appeared for Mr Mehrtens in his absence; Mr Balme represented Mr Filer. As noted, Mr Mansfield represented Mr Ly.
Three relevant facts must be noted at this juncture. First, Mr Filer’s counsel knew in advance that the trial would proceed in Mr Mehrtens’ absence. Keane J held conferences on 1 November and 10 November 2011 to consider pre-trial issues or procedures. Counsel did not raise any objection to Mr Filer being tried in Mr Mehrtens’ absence.
During argument before us Mr Mansfield suggested that Mr Filer should have applied for severance or a stay. However, Mr Mansfield did not lay a factual foundation for this proposition. Mr Filer was represented by experienced counsel. Without evidence to the contrary, we can only infer that he decided not to challenge the trial process. And we agree with Mr Lillico that there would have been sound reasons not to apply for either remedy.
Second, Mr Filer faced trial on 13 counts. The jury acquitted him on six counts – namely, two separate counts of offering to supply methamphetamine and, most significantly, four counts jointly with Mr Mehrtens of supplying or possessing for supply methamphetamine. On two of those latter four joint counts the jury found Mr Mehrtens guilty. And on another joint count, it found Mr Filer guilty but acquitted Mr Mehrtens. Both were found guilty on the remaining three joint charges.
Third, Mr Mansfield advises that Mr Mehrtens was recently arrested; that he is due to be sentenced in December 2012; and that he intends to appeal against his conviction on the ground that Priestley J’s decision was wrong. Accordingly, Mr Mansfield applied to adjourn Mr Filer’s appeal pending the result of Mr Mehrtens’ planned appeal.
We dismissed Mr Mansfield’s application. Mr Mehrtens’ fate and future plans are problematic. Moreover, the issue of whether Mr Mehrtens should have been tried in his absence is discrete from the issue of whether the trial against Mr Filer should have proceeded in Mr Mehrtens’ absence.
Decision
Mr Mansfield advances Mr Filer’s conviction appeal on two grounds.
First, Mr Mansfield submits that when granting the Crown’s application for an order that Mr Mehrtens trial proceed in his absence Priestley J failed to give any or proper weight to the risk of illegitimate prejudice resulting to Mr Filer from a joint trial with a co-accused who was absent, thereby endangering his right to a fair trial.[3] Allied to this submission is a claim that Mr Filer was not served with a copy of the Crown’s application for a pre-trial ruling or provided with an opportunity to be heard.
[3] Section 25(e) of the New Zealand Bill of Rights Act 1990.
Mr Mansfield’s written submissions were silent on identifying the prejudice to Mr Filer’s fair trial rights said to arise from Priestley J’s decision. When pressed in argument, he said that (a) the jury might infer from Mr Mehrtens’ absence that he had absconded himself because he was guilty of the charges; and (b) therefore, given that the Crown’s case was of a close interconnection between Messrs Filer and Mehrtens, the jury might consequently and unfairly infer that Mr Filer was also guilty.
This submission depends on speculation, not on logic or a balanced acknowledgement of the constitutional protections of the trial process. Mr Mansfield accepts that Priestley J delivered judgment on the premise that the trial Judge would direct the jury against drawing any adverse inferences against Mr Mehrtens because of his absence. And it follows that if that safeguard was present for Mr Mehrtens, it would be equally present for Mr Filer.
We respectfully adopt Priestley J’s summary of the relevant factors to be taken into account as follows:
[16] In a helpful distillation of the principles involved (which Mr Kaye accepts) the Crown submits relevant factors in this case are first that the accused’s absence (assuming he does not attend his trial) seems to flow from deliberate actions on his part which in terms of the jurisprudence can properly be construed as a waiver of his fundamental right to appear. Secondly, adjourning the trial (which was the only proper alternative advanced by Mr Kaye in written submissions) would not only disrupt or delay the right of the remaining accused and indeed the Crown to a prompt trial. It would not in any way guarantee the accused’s attendance. Thirdly, any adverse inference which a jury might reach from the demonstrable absence of the accused at his trial would be an improper conclusion to draw and would be met by a strong and firm direction by the trial judge. Fourthly, in a trial such as this, it is difficult to see that the accused’s absence would result in unfairness or any discernable degree of prejudice. In a drug trial such as this relying on interception evidence, the normal stance by counsel is to put the Crown to the proof. Certainly Mr Kaye at trial would not have the benefit of updated instructions and would not have the opportunity to review on a daily basis the progress of the trial. But in most cases such as this the input of an accused might not add much to the general retainer which experienced defence counsel would have.
In these circumstances it is of academic relevance that Mr Filer was not heard on the Crown’s application. However, as noted, his counsel was served. It appears that he did not take any steps to oppose. It cannot now be said that the process or the result were unfair. We agree with Mr Lillico that Priestley J did not err by hearing the Crown’s application in Mr Filer’s absence. This ground of appeal must fail.
Second, Mr Mansfield submits that Keane J failed to direct the jury adequately about the risk of prejudice arising from Mr Mehrtens’ absence.
We have no hesitation in rejecting this submission. In a minute issued immediately before the trial commenced on 14 November 2011 Keane J recorded as follows:
[2] Mr Kaye proposes, when Mr Mehrtens is notionally arraigned on the first count affecting him, count one, to state that he appears, subject to an order of the Court, to ask that Mr Mehrtens be called and, assuming that Mr Mehrtens remains absent, to confirm that Mr Mehrtens is deemed to deny the charge and any others he faces.
[3] I confirmed that I would then tell the jury that I would speak to them about the significance of Mr Mehrtens’ absence in my opening remarks. Mr Kaye invites me to caution the jury not to speculate as to why Mr Mehrtens is absent and to remind them that he, like any other accused, is entitled to the presumption of innocence. I confirmed that this was what I proposed to do.
[4] I asked other counsel whether they wanted me to caution the jury against assuming that any other accused might have had some part to play in Mr Mehrtens’ absence. All counsel said that they wished any remarks I made to be confirmed to Mr Mehrtens only.
(Emphasis added.)
Against that background, at the opening of the trial the Judge directed the jury in the following way:
[6] I come now to the fact that Mr Mehrtens is not here and the significance of it. The first thing that you should know, as I have said to you, is that it is possible for a trial to be conducted in the absence of a person accused of offences, as Mr Mehrtens is, so that is not an issue in itself. He is not here and that is the fact with which you are going to have to work.
[7] Please don’t speculate about why he may not be here. There are any number of reasons why people are not present at trials and that is just something that you would find unprofitable even to think about.
[8] What I do want to emphasise to you, rather, is that, despite the fact that he is not here, there is no difference between Mr Mehrtens and the other three who are here. You must not make any inference adverse to him because he was not here. You must not assume that he has got something to be concerned about. You must not assume that it says anything about his guilt or innocence of the charges he faces.
[9] You simply treat him as you would any other person who does stand accused at a trial and who is present. You accord to him, just as you accord to them, what we call the presumption of innocence. That means that you treat him as innocent until he is proved guilty. And that is a hugely important presumption. It is the pivotal presumption on which the trial process rests and I will come back to it shortly.
Later the Judge 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.
In summing up to the jury at the conclusion of the trial, Keane J returned to the subject of Mr Mehrtens’ absence as follows:
[16] There is another potential source of prejudice in this case about which you need to take real care. Mr Filer has been at his trial throughout and Mr Mehrtens has not. As I have told you at least twice now, I think, that is not a distinction that can play any part in your thinking.
[17] There may be many reasons why a person is not present at their trial and, though Mr Mehrtens has been absent, his case has been conducted by his counsel, Mr Kaye, as if he were present. Mr Kaye has raised with you a series of issues going to the question whether you can be satisfied that Mr Mehrtens is guilty of the offences with which he is charged. Please assess them as carefully as you assess the defence for Mr Filer.
The Judge later in summing up directed the jury in comprehensive terms on the correct approach to be adopted when assessing counts in a multiple accused trial. At the conclusion of these directions counsel indicated that they did not require the Judge to give any supplementary or correcting directions.
We add that the transcript discloses that Keane J was conscious throughout the trial of the risk of prejudice arising from Mr Mehrtens’ absence, whether to his own defence or that of his co-accused, and directed accordingly. His approach cannot be faulted.
The jury’s verdicts stand as verification of its adoption of the Judge’s directions. As noted, the Crown’s case was largely based upon the interconnection of Messrs Mehrtens and Filer in a sophisticated methamphetamine dealing enterprise. The verdicts show that the jury approached each charge separately and analytically. There was no pattern of wholesale acceptance of the Crown case. To the contrary, the jury’s acquittal of Mr Filer on a number of charges, both of those he faced singularly and jointly with Mr Mehrtens, disclose a careful and discriminating assessment of the evidence. There can be no question of a miscarriage of justice.
This ground must fail also.
Result
The application for an extension of time to appeal is granted.
The appeal against conviction and sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent