R v Veza

[2007] NZCA 426

ORDER PROHIBITING PUBLICATION OF THE CONTENTS OF PARA [10] AND THE LAST SENTENCE OF PARA [19] IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF RETRIAL.  PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA306/07 [2007] NZCA 426

THE QUEEN

v

MARTIN ROYCE VEZA

Hearing:         18 September 2007

Court:            O’Regan, Potter and Keane JJ Counsel:  M S Gibson for Appellant

M F Laracy for Crown

Judgment:      1 October 2007         at 11 am

JUDGMENT OF THE COURT

AThe  application  for  leave  to  adduce  new  evidence  in  support  of  the appeal is granted.

B        The appeal against conviction is allowed. C The conviction is quashed.

D        A new trial is ordered.

R V MARTIN ROYCE VEZA CA CA306/07  1 October 2007

EThe appellant will remain on bail subject to the conditions set out in the judgment of O’Regan J of 12 September 2007 until the next callover in the High Court in respect of the charge to which this appeal relates and thereafter the basis on which he is to be remanded pending the retrial will be determined by the High Court.  Those conditions are:

(i)       He is to reside at 5 Thompson Road, Pamapuria RD2 Kaitaia.

(ii)He is to be present at that address from 8 pm to 7 am daily, and to present at the door if requested to do so by the police.

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1]      Mr Veza appeals against his conviction on one count of supplying one gram of methamphetamine to an undercover police agent, who was using the name “Fraser”.  The appeal was initially advanced on two bases.  The first was that trial counsel had, contrary to instructions from Mr Veza, failed to call two witnesses, Mr Rimene and Mr Keogh.  The second was that the police failed to disclose text messages which had been sent between phones owned by Mr Rimene and Mr Keogh respectively.   The ground of appeal is essentially that the text message evidence supports  the  defence  case,  and,  if  it  had  been  heard  by  the  jury,  would  have materially affected the jury’s consideration of the defence.  No issue is taken with the way in which the trial was conducted by the trial Judge, Randerson J.

[2]      The Crown’s written submissions filed on 7 September 2007 included an acknowledgement that, in relation to the second ground of appeal, “the appeal is difficult to resist”.   The Crown accepted that the text messages may well have influenced the jury’s deliberations.

[3]      In light of the Crown’s concession, counsel for Mr Veza indicated to the Court that it was not intended to pursue the first ground of appeal.  We therefore say no more about it.   The only issues remaining for us to determine are, therefore, whether, in light of the Crown’s concession, the appeal should be allowed and, if so, whether a retrial should be ordered.  In order to determine whether the appeal should be allowed, we also need to determine whether Mr Veza should be permitted to adduce new evidence in support of the appeal.

[4]      After the Crown’s written submissions were received, Mr Gibson made an application on Mr Veza’s behalf for bail, and bail was granted by O’Regan J on

12 September 2007 pending the delivery of this decision.  We were told by counsel that Mr Veza was subsequently granted bail in the High Court on other matters for which he had been remanded in custody and released from prison prior to the hearing of the appeal.   He had served about four months of the sentence of two  years imprisonment imposed by the trial Judge.

Should the appeal be allowed?

[5]      The Crown case arose from an undercover police operation.   The sale of methamphetamine which led to the charge occurred at Kaitaia on 19 November

2005.   Mr Rimene supplied one gram of methamphetamine to Fraser at Rimene’s home at approximately 9.30 pm.  There was no issue that Mr Rimene had obtained the drug from a third party.  While Fraser and another undercover officer (AJ) were in the house, Mr Rimene was sending text messages to organise the deal with a third party.   Mr Rimene told Fraser that “Roly” was bringing the drugs to his house. Fraser paid $750 for the methamphetamine and gave $100 to Mr Rimene for organising the deal.

[6]      Both Fraser and AJ completed statements shortly after the transaction in which they identified Mr Veza as the man who  arrived in a car to deliver the methamphetamine to Mr Rimene for on-supply to Fraser.  Neither Fraser nor AJ had seen Mr Veza before, but had been shown photographs of him on two separate occasions  prior  to  the  night  in  question  by  the  detective  to  whom  they  were

reporting.  They also identified Mr Veza from a photo montage some time after the incident.

[7]      The person who arrived to deliver the methamphetamine to Mr Rimene was in a white Holden Commodore car, with the registration plate “SCAMIN” and with a line of red trim around the base.

[8]      Mr Veza gave evidence that he had never met Mr Rimene or Mr Keogh, had never been to Mr Rimene’s house, and was not involved in the transaction.  He gave evidence that he had been travelling back from a day in Auckland at the time of the transaction, having left Auckland about  6.30 or 7.00 pm.  The trip from Auckland to Kaitaia could be expected to have taken about four hours.

[9]      The evidence which supported Mr Veza’s position was that the Holden Commodore was Mr Keogh’s car, and that statements made by Mr Rimene at the time of the transaction supported the contention that the person who delivered the methamphetamine was, in fact, Mr Keogh.  Mr Rimene told Fraser that “Roly” was coming (Mr Keogh is known as Roly) and also told Fraser that Fraser had met “Roly’s missus”.  Fraser accepted in evidence that he had previously done a face to face  drug deal  with  Mr  Keogh  and  had  separately  conducted  a  drug  deal  with Mr Keogh’s wife.

[10]     In his pre-trial evidence, Mr Keogh was not prepared to say who was driving the car at the time, but was adamant it was not Mr Veza.

[11]     Mr Veza sought leave to adduce in this Court an affidavit from Mr Rimene outlining the evidence he could have given at trial if he had been called.   He is a serving prisoner.    He was convicted for the supply of the one gram of methamphetamine to Fraser on 19 November 2005.  His evidence is that the person who delivered the methamphetamine to him in the white Holden Commodore car was Mr Keogh.

[12]     The text message evidence which has now come to light is contained in an affidavit by a Vodafone representative, Ms Dean.  Vodafone’s records confirm that

messages  that  were  sent  between  Mr  Rimene’s  phone  and  a  phone  owned  by Mr Keogh just prior to the transaction which founded the charge against Mr Veza. The text of these messages is now before the Court as an exhibit to Ms Dean’s affidavit.  Application has been made to admit the affidavit as fresh evidence on the appeal.

[13]     The text messages indicate that Mr Rimene sent a message to Mr Keogh’s cellphone at the time of the transaction asking about the supply of one gram of methamphetamine,  and  that  Mr  Keogh  was  bringing  the  methamphetamine  to Mr Rimene in person.  It is clear that the messages support the defence theory that it was  Mr  Keogh,  not  Mr  Veza,  who  made  the  supply  of  methamphetamine  to Mr Rimene.  That, in turn, is supported by Mr Rimene’s reference to “Roly” and to Mr Keogh’s wife in his contemporaneous discussions with Fraser.

[14]     In his evidence at trial, the officer in charge of the case said that the text messages sent from Mr Rimene’s phone were not accessed by the police through lack of resources.  As it turns out, however, the text messages had been intercepted as part of a different police operation under the control of another detective and thus other police officers had a record of the text messages and the phones to and from which they were sent.

[15]     The evidence of the text messages is fresh (in that it was not available to trial counsel at the time of the trial), credible and cogent.  It therefore clearly meets the test for admissibility in R v Bain [2004] 1 NZLR 638 (CA). The affidavit from Mr Rimene was available at trial, and therefore is not fresh in the Bain sense, but we are satisfied that it is in the interests of justice to admit it on the appeal because of its cogency when read in conjunction with the text message evidence.   Its credibility appears to be supported by the text message evidence.

[16]     In R v Bain (2007) 23 CRNZ 71 at 103, the Privy Council said:

A  substantial  miscarriage  of  justice  will  actually  occur  if  fresh,  and admissible and apparently credible evidence is admitted which the jury convicting a defendant had no opportunity to consider but which might have led it, acting reasonably, to reach a different verdict if it had had the opportunity to consider it.

[17]     In  the  present  case  we  are  satisfied  that  the  text  message  evidence  was evidence on which the jury might reasonably have declined to convict (Bain (PC) at [115]). The Rimene evidence is consistent with the text message evidence. We are satisfied that the Crown properly conceded this point, and that on this basis the appeal must be allowed.

[18]     The appeal was also advanced on the basis that there had been a failure by the police to disclose evidence in circumstances where a disclosure obligation applied. Crown counsel sought to explain the failure to disclose on the basis that the availability of the text message evidence was not known to the officers involved in the operation involving Fraser and AJ.   In view of the decision we have made to allow the appeal it is unnecessary for us to advance this aspect of Mr Veza’s case further.

Should there be a retrial?

[19]     Counsel for Mr Veza, Mr Gibson submitted that it was not an appropriate case for the ordering of a retrial.  In short, his case was that the evidence of Fraser may have been honest but mistaken, and it is unlikely that an honest but mistaken witness  would  retract  his  evidence  on  a  retrial.    He  said  that  Fraser  was  an undercover police officer who was skilled by virtue of his occupation  in  being persuasive and appearing convincing.  He said this would provide difficulties for the defence at a retrial given that crucial evidence will be adduced from Mr Rimene who is a convicted drug dealer.  It is anticipated that Mr Keogh will not give evidence at a re-trial because his position has been to invoke the privilege against self- incrimination and that position is unlikely to change.

[20]     Mr Gibson submitted that the combination of the text messages from a phone unquestionably attributed to Mr Keogh, the ownership of the vehicle with a personalised number plate by Mr Keogh and the uncontested evidence of Mr Rimene that “Roly” was to deliver the methamphetamine points to the person who delivered the methamphetamine being Mr Keogh, not Mr Veza.   In those circumstances he argued that a retrial was inappropriate.   Indeed, he suggested that the evidence

provided a compelling basis for Mr Keogh to be charged with the offence, not

Mr Veza.

[21]     Counsel for the Crown, Ms Laracy, argued that the text message evidence, though helpful to the defence, was well short of conclusive.  She argued that the text messages did not prove that Mr Keogh was the person using the phone on the night in question, nor could it be proven that Mr Keogh’s car was not being used by another person.  Even though the text message came from Mr Keogh’s phone, it did not establish conclusively that Mr  Keogh  was  the  person  who  arrived  with  the methamphetamine.  In that regard she noted that Fraser’s evidence was that he had previously done a drug deal with Mr Keogh, that he knew Mr Keogh personally, and that  it  was  definitely  not  Mr Keogh  who  had  delivered  the  methamphetamine. Mr Keogh apparently bears no resemblance to Mr Veza.   In those circumstances Ms Laracy  submitted  that  it  was  a  matter  for  a  jury  to  determine  whether  the identification evidence of the undercover officers should be accepted, in the face of the text message evidence and the evidence of Mr Rimene.

[22]     We accept the Crown’s submission.  We are satisfied that there remain issues in dispute which should be resolved by a jury at a retrial (after all the evidence has been presented and the witnesses have been cross-examined on it) rather than by this Court.  It is not appropriate for this Court to attempt to resolve those issues.

[23]     We therefore order a retrial.  Whether the matter actually proceeds to a retrial will be a matter of prosecutorial discretion.

Result

[24]     We allow the appeal, quash the conviction and order a retrial.

Bail

[25]     As noted earlier, O’Regan J granted bail to Mr Veza subject to residence and curfew conditions.  We order that Mr Veza remain on bail in respect of the charge to which this appeal relates on the same conditions until the next callover in relation to that charge in the High Court.  The basis on which he is remanded thereafter will be for the High Court to determine.

Solicitors:

Crown Law Office, Wellington