Verschaffelt v The Queen

[2015] NZCA 354

IN THE COURT OF APPEAL OF NEW ZEALAND

CA568/2014
[2015] NZCA 354

BETWEEN	PETER VERSCHAFFELT Appellant
AND	THE QUEEN Respondent

Court:

Harrison, Fogarty and Dobson JJ

Counsel:

S D Cassidy for Appellant
J Pike QC for Respondent

Judgment:

(On the papers)

5 August 2015 at 11.30 am

JUDGMENT OF THE COURT

The application for recall of the judgment in [2015] NZCA 53 issued on 10 March 2015 is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dobson J)

1. On 17 July 2015, counsel for Mr Verschaffelt filed an application to recall[1] the Court’s judgment issued on 10 March 2015.[2]  Subsequently, a notice of opposition to the application and submissions on behalf of the respondent were received, dated 23 July 2015. 

   [1]See R v Smith [2003] 3 NZLR 617 (CA) at [36].

   [2]Verschaffelt v R [2015] NZCA 53.

2. Mr Verschaffelt’s application contends that we misapprehended his criticism of the way in which the Crown case was presented at trial.  His concern is that we focused on the prospect of prejudice arising from a change in that the Crown opening was on the basis that Mr Verschaffelt was liable as a principal, whereas the Crown closed on the basis that Mr Verschaffelt was a party to the manufacture of methamphetamine at his residential address.  However, the concern was rather that a shift had occurred from an allegation that Mr Verschaffelt was either a principal in the manufacture together with his co-defendant, Mr Atkinson, or a party to the manufacture by Mr Atkinson, to an allegation that both Messrs Verschaffelt and Atkinson might be found liable as parties to manufacture by third persons who were not before the Court. 

3. However, Mr Cassidy’s submissions in support of the appeal acknowledged that the Crown opened on the basis that the two accused were either involved in the manufacture of methamphetamine at the address themselves, or allowed and facilitated others to use the address for that purpose.  There can be no suggestion that Mr Verschaffelt’s defence was taken by surprise when the Crown case was closed, consistently with that indication in opening. 

4. Nor is there any merit in Mr Cassidy’s complaint that a lack of clarity as to the basis or bases for the Crown’s case led him into error in assessing the admissibility of text messages between the co-defendants and others.  That point was considered and rejected in our judgment.[3]

   [3]At [11]–[15].

5. Accordingly, the application for recall of the judgment in [2015] NZCA 53 issued on 10 March 2015 is declined.

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