Verschaffelt v The Queen - [2015] NZCA 53

IN THE COURT OF APPEAL OF NEW ZEALAND

CA568/2014
[2015] NZCA 53

BETWEEN	PETER VERSCHAFFELT Appellant
AND	THE QUEEN Respondent

Hearing:	3 March 2015
Court:	Harrison, Fogarty and Dobson JJ
Counsel:	S D Cassidy for Appellant W Cathcart for Respondent
Judgment:	10 March 2015 at 10.30 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe appellant is ordered to report to the Probation Service by 10 am on 13 March 2015 for the purpose of serving his sentence of home detention.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dobson J)

Introduction

The appellant (Peter Verschaffelt) was found guilty on one charge of manufacturing methamphetamine following a trial in July 2014 in the Auckland District Court before Judge Moses and a jury. He was jointly charged with a Mr Atkinson, who also faced three further charges. Mr Verschaffelt was sentenced to 10 months’ home detention and 200 hours community work. He appeals his conviction only.
The relevant count in the indictment was that Mr Atkinson, together with Mr Verschaffelt, manufactured methamphetamine within the relevant period at Auckland. It was cast as a representative count. It referred only to s 6(1)(b) of the Misuse of Drugs Act 1975, and there was no reference to the prospect of Mr Verschaffelt being liable as a party. Nor did the accompanying statutory reference indicate reliance on s 66 of the Crimes Act 1961, which provides for party liability.

Decision

Change in Crown case?

The first ground of the appeal was that the nature of the Crown’s case changed between opening and closing to an extent that prejudiced the defence, and accordingly led to a miscarriage of justice.
In the Crown opening, there were references to the prospect of the defendants being liable as parties:
… the two of them were either themselves involved in the manufacture of methamphetamine at the address or allowed and facilitated others to use the address for that purpose.
… the Crown alleges that these two were in some way involved in manufacturing methamphetamine …
Mr Cassidy submitted that these references to the prospect of party liability came as a surprise. Initially, he indicated that no objection was made after the Crown opening to the effect that the indictment did not address the prospect of liability as other than principals. After taking instructions from Mr Verschaffelt during an adjournment in the appeal hearing, Mr Cassidy advised that he had apparently raised a concern of this type with the Judge. There is no record of the point having been considered.
The terms of the count that alleged involvement only as principals were inadequate in this case, given the nature of the Crown case at trial. The obligation to fairly inform the defendant of particulars reasonably needed to prepare his defence extended to amending the terms of the indictment to specify liability as either a principal or a party, and reliance in this alternative aspect on s 66(1) of the Crimes Act.[1]
[1]See generally Bruce Robertson (ed) Adams on Criminal Law (looseleaf…

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 Verschaffelt v The Queen

Details

AGLC: Verschaffelt v The Queen [2015] NZCA 53
Case: [2015] NZCA 53
Decision Date: 10 March 2015 at 10.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Peter Verschaffelt, appealed against his conviction for manufacturing methamphetamine. The appeal was heard by Harrison, Fogarty, and Dobson JJ. Verschaffelt argued that there was a change in the Crown's case between opening and closing, which prejudiced his defence and led to a miscarriage of justice. He also argued that the court erred in allowing Mr Atkinson's contributions to text communications to be relied upon as part of the Crown's case against him.

The court considered whether there was a material change in the Crown's case between opening and closing. The court found that the prospect of attributing liability to Verschaffelt as a party to the manufacture of methamphetamine was raised sufficiently in opening for it to be an issue in the case. The court also found that Verschaffelt's positive reliance on a combination of texts from and to both defendants to raise a doubt that the manufacture had occurred negated the claim that the purported inadmissibility of Mr Atkinson's texts ought to have been addressed before closing addresses.

The court dismissed the appeal and ordered Verschaffelt to report to the Probation Service by 10 am on 13 March 2015 for the purpose of serving his sentence of home detention. The court found that there was no substantial miscarriage of justice and that the appeal was without merit.

Orders