Drever v R [2016] NZCA 469 (29 September 2016)

Last Updated: 6 October 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA364/2015 [2016] NZCA 469
BETWEEN	DEAN JOHN DREVER Appellant
AND	THE QUEEN Respondent

Hearing:	22 September 2016
Court:	Harrison, Brown and Brewer JJ
Counsel:	Appellant in person Z R Johnston for Respondent
Judgment:	29 September 2016 at 3.00 pm

JUDGMENT OF THE COURT

1. The application for an extension of time to appeal is granted.

2. The appeal against conviction is dismissed.

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REASONS OF THE COURT

(Given by Brown J)

Introduction

[1] During 2012 Mr Drever’s company, World Energy and Petroleum Supply Ltd, imported four consignments, (180 litres) of hypophosphorous acid, a chemical which can be used in the manufacture of methamphetamine. On 26 June 2012 police accompanied the fourth consignment (40 litres) as it was delivered by courier and observed Mr Drever signing for it. He was arrested and a warranted search of his apartment located a glass pipe, analysis of which detected methamphetamine.
[2] Consequently, Mr Drever was found guilty by a jury following a trial in the Auckland District Court in February 2015 on two counts:

• (a) being in possession of material (approximately 40 litres of hypophosphorous acid) capable of being used in, or for, the manufacture of the Class A controlled drug methamphetamine with the intention that the material was to be used in or for that purpose;^[1] and
• (b) had in his possession a glass pipe for the purpose of consuming a controlled drug namely methamphetamine.^[2]

[3] Mr Drever now appeals against his conviction. His notice of appeal was filed out of time. As the delay was minimal, we grant an extension of time within which to file the notice of appeal.
[4] Mr Drever’s notice of appeal included eight typed pages of grounds of appeal and his written submissions in support of his appeal comprised 637 pages. He failed to comply with a direction on 1 September 2016 that he file a summary of his key points not exceeding 20 pages. At the hearing he made oral submissions directed to his primary grounds of appeal.

Primary grounds of appeal

“Material”

[5] Mr Drever first argued that hypophosphorous acid is not a “material” for the purposes of s 12A(2)(a) of the Misuse of Drugs Act 1975. That contention was rejected by Judge Hinton in a pre-trial ruling delivered on 23 September 2013 which was not challenged. We agree with the Judge’s view that “material” is not limited to items such as books or paper. Hypophosphorous acid is a substance which is capable of being used for the manufacture of methamphetamine and thus qualifies as a “material” for the purposes of s 12A(2)(a).

Propensity evidence

[6] Mr Drever next challenged the admissibility of propensity evidence arising from his conviction in 2003 for possession of equipment or material for manufacture of methamphetamine. That ground of complaint, which was not included in the extensive grounds of appeal, was also the subject of the pre-trial ruling by Judge Hinton who held that a prior conviction for possessing hypophosphorous acid intending it to be used for manufacture was admissible.
[7] We agree that the propensity evidence was properly admitted.^[3] Indeed, as the Crown submission emphasised by reference to both the closing addresses and to the summingup, the propensity evidence was proved in a way that limited any unfairness to Mr Drever and no miscarriage of justice arose.

Unlawful “controlled delivery”

[8] Mr Drever next contended that the police had conducted an unlawful “controlled delivery” of the fourth consignment of hypophosphorous acid. While in the course of the Crown opening the prosecutor inaccurately described the delivery of the acid as a “controlled delivery”, in fact this was not a case where the goods remained subject to Customs’ control. Rather, the police simply observed the delivery of the materials which had been released from Customs’ control into the hands of a courier. We accept Ms Johnston’s submission for the Crown that the police did not take possession of the acid and they required no explicit authority to act as they did. They simply observed the consignment of acid being delivered into Mr Drever’s possession and arrested him once there were sufficient grounds to suspect the commission of a crime.

Expert evidence

[9] Mr Drever also took issue with the evidence of the expert witness employed by the Institute of Environmental Science and Research (ESR) who was an authorised analyst for the purposes of the Misuse of Drugs Act. The point taken in the grounds of appeal was that this evidence perverted the course of justice by not allowing the jury to reach their own conclusion on the basis of their own knowledge about the connection between hypophosphorous acid and methamphetamine.
[10] The analyst’s evidence was admitted at trial unopposed. We accept Ms Johnston’s submission that it covered relevant matters outside the jury’s knowledge and was therefore substantially helpful.^[4] The admission of this evidence did not cause any miscarriage of justice. In the course of argument Mr Drever advanced a different point, namely that the expert evidence was not properly received because the analysis had not been undertaken by the witness himself. However it is clear from the evidence that the witness did conduct the analysis of the hypophosphorous acid, although he did not personally conduct the analysis of the pipe. We do not consider that this provides any basis for challenging the convictions.

Other grounds

[11] Several other matters were addressed in the Crown’s submissions in anticipation of matters contained in the prolix written submissions. In addition, a number of points were raised by Mr Drever in argument which were not included in the grounds of appeal, such as the manner in which the police obtained entry to Mr Drever’s apartment building and an alleged unlawful search of Mr Drever’s cellphone and the downloading of emails from that cellphone. We have considered all these points but conclude that none of them provide any grounds for a successful challenge to Mr Drever’s convictions.

Result

[12] Accordingly, Mr Drever’s appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Misuse of Drugs Act 1975, s 12A(2)(a).

^[2] Section 13(1)(a).

^[3] Evidence Act 2006, s 43.

^[4] As required for the evidence to be admissible under s 25(1) of the Evidence Act.