LESLIE CAVELL AND THE KING - [2024] NZCA 565

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA144/2024
[2024] NZCA 565

BETWEEN	LESLIE CAVELL Appellant
AND	THE KING Respondent

Hearing:	1 October 2024
Court:	Collins, Brewer and Osborne JJ
Counsel:	E J Riddell for Appellant M J Lillico for Respondent
Judgment:	6 November 2024 at 11 am

JUDGMENT OF THE COURT

A The application to adduce further evidence is declined.
B The appeals against conviction and sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Osborne J)

Introduction

Leslie Cavell (now aged 64) was found guilty by a District Court jury on charges of possession of methamphetamine for supply and possession of MDMA for supply. He had pleaded guilty (immediately before trial) to possession of a firearm, ammunition, cannabis, and a methamphetamine pipe. Mr Cavell was sentenced by Judge Rielly to two years and eight months’ imprisonment.[1]
[1]R v Cavell [2024] NZDC 4046 [sentencing notes].
Mr Cavell appeals his conviction on the charges of possession of methamphetamine for supply and possession of MDMA for supply on the basis there was prosecutorial misconduct and fresh evidence is available. The ground based on prosecutorial misconduct relates to passages in the prosecutor’s closing address (set out at [24] below) in which the prosecutor discussed Mr Cavell’s failure to call his partner as a witness. Mr Cavell also appeals his sentence on the basis he should have received an additional, substantial discount for matters identified in a report submitted under s 27 of the Sentencing Act 2002 (s 27 report).

The basic facts of the arrest

Mr Cavell and his partner were stopped in their campervan by police coming off a ferry in Picton on 4 December 2020. The campervan was searched. Police located 35.8 grams of methamphetamine, 18.1 grams of MDMA, $201,074.30 in cash, a Smith & Wesson .44 Magnum revolver, six .44 Magnum rounds, five 12-gauge shotgun shells, sets of digital scales, and a methamphetamine pipe.

The trial

Crown case

The Crown alleged Mr Cavell was both a user and dealer of methamphetamine. He had travelled to the North Island on 25 November 2020 intending to use the large sum of cash in his possession to obtain a substantial quantity of methamphetamine which he would bring back to Nelson to sell. The Crown led evidence of messages between Mr Cavell and a contact “Pedros Kelos”, which discussed methamphetamine supply and pricing (at $6,000 an ounce). The Crown asserted the methamphetamine and MDMA in Mr Cavell’s possession when he was arrested was all he had managed to get hold of, which is why he was returning home with over $200,000 cash. The Crown suggested he had the pistol for protection.
The amounts of methamphetamine and MDMA identified in the charges meant Mr Cavell had the onus of proving he did not possess the two drugs for supply.[2]

Defence case

[2]Misuse of Drugs Act 1975, s 6(6).

Mr Cavell gave evidence. He said the seized methamphetamine and MDMA were for the personal use of himself…

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.

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Details

Case: [2024] NZCA 565
Decision Date: 6 November 2024 at 11 am

CaseChat Overview and Summary

Leslie Cavell appeals against his conviction and sentence for possession of methamphetamine and MDMA for supply, and possession of a firearm and ammunition. He claims prosecutorial misconduct occurred when the prosecutor discussed his failure to call his partner as a witness. He also argues he should have received a substantial discount for matters identified in a report submitted under s 27 of the Sentencing Act 2002. The Court of Appeal dismisses both the conviction and sentence appeals. The Court of Appeal declines the application to adduce further evidence as the evidence was not fresh and was not cogent in relation to the Crown’s allegations. The prosecutor’s comments were found to be inappropriate but were adequately addressed and corrected by the trial Judge’s directions to the jury. The Court of Appeal also finds the sentence was not manifestly excessive despite the Court considering a modest credit for background circumstances was called for.

Orders