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,…

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 R v Veza

Details

AGLC: R v Veza [2007] NZCA 426
Case: [2007] NZCA 426
Decision Date: 1 October 2007

CaseChat Overview and Summary

In the appeal of the Crown v Martin Royce Veza, the Court of Appeal of New Zealand heard an appeal against the conviction of Mr Veza for supplying one gram of methamphetamine to an undercover police agent. The appeal was based on the failure of trial counsel to call two witnesses and the non-disclosure of text messages between two other individuals. The Crown conceded that the text messages might have influenced the jury's deliberations. The Court allowed the appeal, quashed the conviction, and ordered a retrial. The Court was satisfied that the text message evidence was credible and cogent, and that the jury might have reached a different verdict if they had had the opportunity to consider it. However, the Court found that there remained issues in dispute that should be resolved by a jury at a retrial rather than by the Court. Therefore, a retrial was ordered, and the matter will proceed depending on the prosecutorial discretion.

The Court granted Mr Veza's application to adduce new evidence in support of the appeal, including an affidavit from one of the witnesses and the text message evidence. The Court found that the new evidence met the test for admissibility and that it was in the interests of justice to admit it on the appeal. The Court noted that a substantial miscarriage of justice would occur if fresh, admissible, and apparently credible evidence was admitted, which the jury convicting a defendant had no opportunity to consider but which might have led it to reach a different verdict if it had had the opportunity to consider it. The Court accepted the Crown's submission that the text message evidence, though helpful to the defence, was well short of conclusive, and 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.

Orders