Drever v R [2016] NZCA 249 (9 June 2016)

Last Updated: 24 June 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA457/2014 [2016] NZCA 249
BETWEEN	DEAN JOHN DREVER Appellant
AND	THE QUEEN Respondent

Hearing:	31 May 2016
Court:	Randerson, Woodhouse and Wylie JJ
Counsel:	M B Meyrick for Appellant A J Ewing for Respondent
Judgment:	9 June 2016 at 9:00 am

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

[1] Mr Drever appeals against his conviction after a jury trial in the District Court in May 2014 on one count of arson under s 267(1)(a) of the Crimes Act 1961.^[1] Judge Collins presided and sentenced Mr Drever on 25 July 2014 to five years imprisonment with a minimum period of imprisonment of three years.^[2]
[2] Mr Meyrick advanced Mr Drever’s appeal against conviction on the ground that a miscarriage of justice had arisen because:

• (a) The evidence of a Mr Devich should not have been admitted. This related to an occasion when Mr Drever expressed an intention to kill the victim of the arson (Mr Marsh).
• (b) A defence expert was not permitted to visit the scene of the fire before giving his opinion.

[3] The only ground raised in support of the sentence appeal is that the Judge erred in imposing the three year minimum period of imprisonment.

The facts

[4] The Crown case was that Mr Marsh occupied a workshop unit at Avondale. At about 6.45 am on 13 November 2011 he was woken to the sound of breaking glass and someone yelling “are you in there cunt?”. He saw a man crouched outside the window of the unit doing something with various items including an aerosol can, tape and a jerry can. He recognised this person as Mr Drever whom he had known for about 20 years.
[5] Within a short period, the unit burst into flames. Mr Marsh saw Mr Drever leaping the fence and leaving the property. An occupant of a neighbouring workshop unit, Mr Cosgrove, also recognised Mr Drever and came to the aid of Mr Marsh. He was eventually able to extinguish the fire. A fire investigation expert concluded the fire had been deliberately lit and that hydrocarbons found at the scene were consistent with petrol being used as an accelerant.
[6] Although Mr Marsh had known Mr Drever for many years, he ceased contact with him about five years before the date of the fire when Mr Drever began to make unfounded allegations against him. Mr Marsh’s evidence was that Mr Drever had also threatened to kill him.
[7] When interviewed by the police, Mr Drever denied responsibility for the offending. He said he had been at the casino that day. He did not give evidence at trial but called evidence from an expert witness (Mr Mackay). Apart from a casino ticket issued that day, no evidence was called to support a defence of alibi. The casino ticket did not prove anything. Mr Drever’s defence at trial was based on two points:

• (a) There was insufficient evidence to identify him as the offender.
• (b) If the jury concluded Mr Drever was responsible then it was not proved beyond reasonable doubt that he appreciated anyone was in the unit who might be harmed by the fire.

[8] As to the first issue, the Crown relied on the eyewitness identification of Mr Marsh and Mr Cosgrove. This was bolstered by CCTV evidence confirming Mr Drever had left his apartment on the day in question in time to start the fire. As well, tape found in the boot of his car was similar in composition to tape found at the scene. The Crown also relied in part on the evidence of Mr Devich which it was said demonstrated Mr Drever’s hostility towards Mr Marsh and was probative of the Crown’s case in several ways we discuss below. As to the risk to life in consequence of the fire, the Crown suggested the members of the jury need only apply their commonsense. It was submitted that any reasonable person would have appreciated that the fire presented a risk to life.

First ground of appeal – the evidence of Mr Devich

[9] Before discussing the evidence of Mr Devich, we outline Mr Marsh’s evidence about his relationship with Mr Drever. Mr Marsh said that the hostility between himself and Mr Drever began in 2004 and continued until at least 2008. Mr Drever began accusing Mr Marsh of sleeping with Mr Drever’s partner. On at least one occasion around 2004 or 2005, Mr Drever had arrived at Mr Marsh’s unit in a frantic state, looking for his partner. Mr Marsh said these accusations were untrue. He also said that between 2005 and 2008 Mr Drever had telephoned him a number of times telling him to stop using the name “Scott” because it was his (Mr Drever’s) name.
[10] During the same period Mr Drever regularly threatened to kill Mr Marsh. The last time Mr Marsh had seen Mr Drever was around 2006 when he arrived at Mr Marsh’s unit to discuss a debt relating to a television set. Mr Marsh said the debt was promptly paid. Although Mr Marsh’s evidence was challenged, in the absence of any contradictory evidence from Mr Drever or anyone else, it was plainly open to the jury to accept Mr Marsh’s evidence.
[11] The challenged evidence from Mr Devich supported Mr Marsh’s account. It was admitted in terms of a pre-trial ruling given by Judge C Ryan on 24 April 2014.^[3] She found the evidence was properly admitted on a propensity basis. Mr Devich knew both Mr Drever and Mr Marsh. In about 2007 Mr Drever had come to Mr Devich’s workshop and asked for his “shooter” (miming a pistol). Mr Drever told Mr Devich he wanted the gun because he was going to go and kill Mr Marsh. Mr Devich said Mr Drever seemed agitated, angry and delusional. For example, Mr Drever told Mr Devich the gun was in Mr Devich’s basement even though Mr Devich did not have a basement; Mr Drever alleged Mr Marsh had stolen his name and that his name now was John Jean Mulligan; and Mr Drever told Mr Devich he had seen Mr Devich and Mr Devich’s girlfriend on the internet. Mr Devich was unaware what Mr Drever could be referring to in this last respect. Mr Devich said that after Mr Drever had left he telephoned Mr Marsh and warned him about Mr Drever’s visit. There was little challenge to Mr Devich’s evidence at trial.
[12] Mr Meyrick submitted on behalf of Mr Drever that Mr Devich’s evidence should not have been admitted because its probative value was weak and was clearly outweighed by its unfairly prejudicial effect on Mr Drever. Mr Meyrick took us through the list of nonmandatory considerations under s 43(3) of the Evidence Act 2006. He submitted that Mr Devich’s evidence about the threat to Mr Marsh’s life had occurred only once; it was between four and five years before the arson; there was no similarity between the threat to kill and an attempt to set fire to a building; there was only one person making the allegation; the threat was of a vague general nature and it was not particularly unusual. Mr Meyrick also emphasised that the nature of the allegations Mr Drever was alleged to have made were bizarre to the point of being delusional such that no particular weight should be attached to them. There was, he said, only a tenuous connection with the arson.

Discussion

[13] We accept Ms Ewing’s submission for the Crown that Mr Devich’s evidence was properly admitted. In terms of the definition of propensity evidence in s 40 of the Evidence Act, it was evidence tending to show Mr Drever’s propensity to have a particular state of mind. We agree that, in cases where the evidence is not of an orthodox “similar fact” nature, the list of considerations in s 43(3) of the Evidence Act has little practical significance. As this Court noted in R v Martin, evidence of the kind at issue here was not introduced in order to demonstrate that the defendant has behaved in a similar way to that involved in the offence for which he or she is being tried.^[4] Ideas of coincidence and probability that generally underpin evidence of this kind are not material in such a case. This Court held in Martin that evidence relating to motive may be highly relevant, especially in a case where the identity of the offender is at issue.^[5]
[14] We accept Ms Ewing’s submission that Mr Devich’s evidence has significant probative value. It supported Mr Marsh’s own evidence of Mr Drever’s hostility towards him. In that respect it was relevant and probative in at least three ways:

• (a) It made it more likely it was Mr Drever rather than another randomly selected individual who was responsible for the fire.
• (b) It explained what would otherwise have appeared implausible, namely that a long-standing associate of Mr Marsh was attempting to set fire to his property.
• (c) It supported the Crown’s submission that Mr Drever must have known the fire would cause risk to life by providing a basis for the jury to conclude that this was Mr Drever’s purpose in lighting the fire.

[15] We acknowledge that the threat was made some five years before the fire, but it was consistent with Mr Marsh’s own evidence and it was open to the jury to treat it as evidence of Mr Drever’s longstanding and deep-seated hostility towards Mr Marsh.
[16] We accept there was potential for Mr Devich’s evidence to be prejudicial but we do not consider it was unfairly prejudicial. In particular, we do not consider the evidence was likely to unfairly predispose the jury against Mr Drever or to cause the jury to give disproportionate weight to the evidence in reaching its verdict.^[6] We note that in summing up, Judge Collins appropriately warned the jury not to engage in illegitimate reasoning in these terms:

[54] The first matter is the relationship context between Mr Marsh and Mr Drever and the evidence of Mr Devich. What [the prosecutor] says to you how you can use it is that it provides a context. And members of the jury you may think that context is always important. And she said it provides context in relation to the question of identification. What you must not do is say, well look if we accept Mr Devich’s evidence that Mr Drever did that, so therefore he must be guilty. That is not what [the prosecutor] is saying. She is saying that the evidence of the breakdown in the relationship, the animosity between the two, or on Mr Drever’s part, was supported by the evidence of Mr Devich, shows that malice existed, helps you understand the events that occurred, helps you understand the actions which were unprovoked and without much rationality and that circumstantial evidence supports the identification of Mr Marsh and Mr Cosgrove. And the Crown says that is an answer to [defence counsel’s] submission that, why would Mr Drever, out of the blue, on the Sunday morning, come along and light this fire? So, as I say, you can use it in that way as context and that it confirms a history of ill-feeling between the complainant and the defendant and it rebuts the proposition that Mr Drever had no reason for out of the blue starting this fire.

[17] We conclude there was no material risk of a miscarriage of justice through the introduction of the evidence of Mr Devich.

Second ground of appeal – Mr Drever’s expert unable to access the site of the fire

[18] At trial there was considerable focus on the sequence of events that led to the shattering of louvre windows at Mr Marsh’s unit. It was not in dispute that the glass had broken but the defence disagreed with the Crown expert that Mr Drever had broken the windows deliberately and then started the fire with the use of petrol. The defence submission was that the windows had not been broken deliberately but had shattered as a consequence of the fire. It was contended that if this was correct, the person responsible for the fire could not have splashed petrol into the dwelling. It followed that, in the defence submission, it was less likely the offender reasonably anticipated a danger to the life of any person.
[19] The Crown called an expert fire investigator, Ms McHugh, who arrived at the scene shortly after the fire. She took photographs and used a device which detected hydrocarbons she said were consistent with the presence of an accelerant such as petrol. In her opinion, the windows had broken prior to the fire. This was consistent with Mr Marsh’s evidence that he was awoken by the sound of breaking glass with the fire occurring subsequently. Mr Cosgrove’s evidence was to the same effect: he heard glass smashing, this was followed by a “whoosh” sound, and then he saw the fire.
[20] The defence expert Mr Mackay described himself as a traffic accident investigator. Mr Mackay expressed the view that the presence of hydrocarbons found inside the unit was not necessarily consistent with petrol having been spread or splashed into the interior of the unit. He advanced other explanations as to how hydrocarbons might have been found.
[21] Mr Mackay said that he had originally been retained in April 2013, about 17 months after the fire in November 2011. In cross-examination, he accepted the fire had been deliberately lit and that petrol had been used as an accelerant to get the fire started. He also agreed that during the fire the curtains inside had caught alight and effectively burned away. He agreed that Mr Cosgrove’s evidence tended to suggest the glass was broken prior to the fire.
[22] Mr Mackay was cross-examined extensively on the sequence of events with regard to the breaking of the glass but maintained his opinion about the sequence and manner in which the louvres had been broken.
[23] Significantly, he answered questions from the Judge to this effect:

17. Mr McKay you agree that this isn’t a sophisticated effort to set fire to this building is it?
1. A. No Your Honour.
17. And if the jury accept that the fire’s been deliberately lit whether or not the person who tried to lit the fire has tried to pour petrol inside or only pour it on the outside really only goes to just how the determined the efforts were to set a fire doesn’t it?
1. Indeed, yes.

[24] Mr Mackay said he had not inspected the site but there was no evidence to the effect that he was denied access to the premises. Although Mr Meyrick’s written submissions referred to an affidavit from Mr Mackay on the issue of access, no affidavit has been filed despite a direction given on 5 May 2016 that any application to adduce further evidence on appeal was to be filed and served by 9 May 2016.
[25] We accept Ms Ewing’s submission that in the absence of affidavit evidence supporting the assertion that Mr Mackay was denied access to the site, and in the absence of evidence indicating what difference a site visit would have made, there is no basis for appellate intervention on this ground. Mr Mackay’s evidence was based on the summary of facts, statements of witnesses and police officers present at the scene, ESR reports, photo booklets and Ms McHugh’s investigation report. It is reasonable to infer that by the time Mr Mackay was retained, the glass in the louvre windows would have been repaired. Given the materials he had available to him, it is unlikely a site visit would have assisted.
[26] In any event, the answers Mr Mackay gave to Judge Collins as quoted in [23] above are telling. It was open on the evidence for the jury to conclude that Mr Drever intended to damage the building. Mr Marsh’s evidence that Mr Drever had called out to him at 6.45 am on a Sunday morning prior to the fire shows he knew it was probable or at least possible Mr Marsh was in the premises. Whether or not petrol was splashed inside the building, it was open for the jury to conclude Mr Drever knew or ought to have known that danger to life was likely to ensue from his actions in deliberately setting fire to the building.

Sentence appeal

[27] The sole ground Mr Meyrick advanced in respect of the sentence appeal was that the imposition of a minimum period of imprisonment was not justified. He submitted that the Judge had erred by giving too much weight to the evidence of Mr Devich and to the level of animosity Mr Drever displayed towards Mr Marsh. It was also submitted that the Judge had placed undue emphasis on the impact of the fire on the complainant and that this ought not to have been taken into account in setting the minimum period. Further, the Judge had wrongly rejected the proposition that there was a need for a psychological report.
[28] In sentencing Mr Drever, the Judge took into account that the impact on Mr Marsh was severe; Mr Drever’s actions were deliberate, premeditated, calculated and determined; they were designed to cause great fear on the part of the complainant and had the potential to cause considerable damage; and they created risk to life because smoke and flames filled the workshop after the fire was lit, effectively trapping Mr Marsh in the premises. It was fortuitous that Mr Cosgrove came to Mr Marsh’s assistance and managed to extinguish the fire. The Judge also found that Mr Drever’s actions were brazen and motivated by malice.
[29] The Judge added that Mr Drever was an intelligent man with a strong will and a very determined personality. He considered this had led him into a willingness to intimidate and engender fear on the part of the victim.
[30] It appears that the possibility of a psychological report was raised by Mr Drever when interviewed by the Probation Service prior to sentencing. On this topic the Judge said:

[25] Other than the matters that I have referred to you were prepared to disclose very little about yourself whatsoever to the report writer. What may be considered an attempt to further manipulate matters to your advantage you suggested to the report writer that a psychological report may be appropriate. That does not fit consistently at all with someone who denies complete responsibility for this, and there had been nothing else put before me whatsoever which would suggest that a psychological report should be called for or is needed in this case.

[31] In addressing the minimum period of imprisonment, the Judge took into account the relevant sentencing purposes under s 86 of the Sentencing Act 2002 in these terms:

[31] Mr Drever I consider you a risk to those in the community that fall out with you. You need to be personally deterred from carrying out this type of pay back crime if I can give it that label. I do need to denounce this conduct, and you do need to be held accountable for what was a very serious arson.

[32] You have been in my view the beneficiary of the lowest starting point I could adopt but I have clearly come to the view that a minimum period of imprisonment in terms of s 86(2) Sentencing Act is required particularly to hold you accountable, to deter you and to protect the community. In those circumstances the minimum period of imprisonment will be one of three years.

[32] We are not persuaded there was any error of approach by the Judge in relation to the minimum period of imprisonment. On the Judge’s findings, a minimum period of imprisonment was clearly justified on the grounds identified by the Judge. Nor could there be any legitimate quarrel with the period of three years.
[33] The Judge was not obliged to obtain a psychological report in the circumstances of the case. We accept Mr Meyrick’s proper concern for Mr Drever’s welfare but there is nothing to suggest that any issues of a psychological nature cannot be addressed by the prison authorities should it be necessary to do so.

Mr Drever’s own submissions

[34] We agreed at Mr Drever’s request to receive submissions from him. He was anxious to do so in addition to the submissions filed by his counsel Mr Meyrick. We made it clear however that we would not permit Mr Drever to address his own submissions except through counsel. In the event, Mr Drever filed some 300 pages of detailed submissions. Mr Meyrick informed us that he and an assistant had thoroughly reviewed all of Mr Drever’s personal submissions. Mr Meyrick said he had isolated the points he considered to have merit in the written submissions he filed. We are not persuaded there is anything in Mr Drever’s personal submissions which warrants our attention. Our willingness on this occasion to receive personal submissions from Mr Drever should not be treated as a precedent. In hindsight, our generosity in departing from usual practice was misplaced.

Result

[35] The appeal against conviction and sentence is dismissed.

Solicitors:
Berman and Burton, Auckland for Appellant
Crown Law Office, Wellington for Respondent

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^[1] At an earlier trial in 2013 the jury was unable to agree.

^[2] R v Drever DC Auckland CRI 2011-004-021680, 25 July 2014.

^[3] R v Drever DC Auckland CRI 2011-2004-021680, 24 April 2014.

^[4] R v Martin [2013] NZCA 486 at [22]; see also Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [76] per William Young J.

^[5] At [23]–[24].

^[6] Section 43(4) of the Evidence Act 2006.