Verschaffelt v R [2015] NZCA 53 (10 March 2015)

Last Updated: 17 March 2015

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

1. The appeal is dismissed.
2. The 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.

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REASONS OF THE COURT

(Given by Dobson J)

Introduction

[1] 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.
[2] 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?

[3] 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.
[4] 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 ...

[5] 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.
[6] 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]
[7] We tested Mr Cassidy at some length on the impact of the lack of reference to party liability in the indictment, and on his allied concern at the extent to which he perceived the Crown case to have changed between opening and closing. As a result, we are satisfied that these factors did not lead to any realistic risk of a miscarriage of justice.
[8] A fundamental element of the charge was proving that methamphetamine had been manufactured at the residential property Messrs Verschaffelt and Atkinson shared, on at least one occasion in the period to which the charge related. Mr Verschaffelt’s defence focused on challenging that element of the charge. In closing, Mr Cassidy invited the jury to interpret the combined effect of extensive text communications as showing that Messrs Verschaffelt and Atkinson were subjected to substantial pressure from others to manufacture methamphetamine at the property, but that their intentions to do so were frustrated. Mr Cassidy submitted that the preferable interpretation of all the communications was that manufacturing had not occurred. Some of the communications referred to one defendant buying methamphetamine in the relevant period, and it was argued that that activity would make no sense if the defendants were successful in manufacturing their own methamphetamine. At the least, it was argued that there was a reasonable doubt that manufacturing had occurred.
[9] We do not accept that there was a material change in the Crown case between its opening and closing. The prospect of attributing liability to Mr Verschaffelt as a party to the manufacture of methamphetamine was raised sufficiently in opening for it to be an issue in the case. The Crown’s closing did not stray from the opening proposition to an extent that Mr Verschaffelt could complain that the Crown closed on a basis that had not been foreshadowed in opening. Further, the Judge’s question trail on this count explicitly addressed the elements in terms of Mr Verschaffelt being liable as a party. It appears that the question trail was settled with counsel prior to their closing addresses.
[10] We accept Mr Cassidy’s point that, by an early stage of the trial, “the die was cast” on an election as to how Mr Verschaffelt’s defence would be run. However, we are not persuaded that the options open to Mr Verschaffelt in defending the charge would have been exercised differently had the terms of the indictment addressed the alternative of liability as a party from the outset of the trial.

Limit on admissibility of Mr Atkinson’s texts

[11] The second ground of appeal is that the Court erred in allowing Mr Atkinson’s contribution to extensive text communications, which were produced by the Crown, to be relied upon as an aspect of its case against Mr Verschaffelt. The defence did not object to the admission of these texts on the grounds that they were of a hearsay nature before or during trial. In addition, Mr Verschaffelt’s defence placed substantial reliance on the combined impact of both Mr Verschaffelt’s and Mr Atkinson’s contributions to the text communications, including in Mr Cassidy’s closing address. It was only after the jury had retired that Mr Cassidy applied for the Judge to direct the jury to distinguish Mr Verschaffelt’s contribution to the communications from those that the Crown presented as Mr Atkinson’s contributions.
[12] We understand that the Judge agreed to give a direction in these terms, over muted opposition from the Crown.^[2]
[13] Mr Cathcart did not concede that Mr Atkinson’s contributions to the string of text communications were necessarily inadmissible against Mr Verschaffelt,^[3] and argued that Mr Verschaffelt’s extensive reliance on the content of the text communications belied any belated claim that their admissibility caused prejudice to him or a miscarriage of justice.
[14] There is force in Mr Cathcart’s argument that, in the circumstances of this case, Mr Atkinson’s contributions to the text communications should not be treated as inadmissible against Mr Verschaffelt. In any event, Mr Verschaffelt’s positive reliance on a combination of texts from and to both defendants to raise a doubt that the manufacture had occurred negates the claim that the purported inadmissibility of Mr Atkinson’s texts ought to have been addressed before closing addresses. Mr Cassidy’s belated stance that the jury should not take Mr Atkinson’s texts into account in the case against Mr Verschaffelt was conveyed to the jury while they were still deliberating.
[15] The test in considering such criticisms is whether there has been a substantial miscarriage of justice. We are readily satisfied that no such prospect arises.

Result

[16] Accordingly, the appeal is dismissed.
[17] When his appeal was lodged, Mr Verschaffelt was granted bail by the trial Judge. That suspended the term of home detention that had been imposed, on terms requiring him to surrender himself to the Court on the day allocated for the hearing of the appeal.
[18] At the conclusion of the hearing, the Court directed that the present terms of bail were to continue until delivery of the judgment. The 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.

Solicitors:
Public Defence Service, Manukau for Appellant
Crown Law Office, Wellington for Respondent

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^[1] See generally Bruce Robertson (ed) Adams on Criminal Law (looseleaf ed, Brookers) at [CA66.10(1)].

^[2] The terms of the Judge’s direction were not transcribed, but counsel were in broad agreement as to its effect.

^[3] He invited an analogy with the reasoning in R v Messenger [2008] NZCA 13, [2011] 3 NZLR 779.