Powle v The Queen - [2017] NZCA 96

IN THE COURT OF APPEAL OF NEW ZEALAND

CA565/2016
[2017] NZCA 96

BETWEEN	ANTOINETTE HAYLEY POWLE Appellant
AND	THE QUEEN Respondent

Hearing:	16 March 2017
Court:	Cooper, Woodhouse and Collins JJ
Counsel:	P K Hamlin for Appellant K S Grau for Respondent
Judgment:	29 March 2017 at 4 pm

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

On 19 September 2016 Ms Powle was convicted of attempting to pervert the course of justice[1] and 10 related drugs offences charges — ranging from supplying methamphetamine[2] to selling BZP[3] — following a trial by jury conducted in the District Court at Manukau before Judge McAuslan. Ms Powle was sentenced to four years’ imprisonment on the methamphetamine charges, 18 months’ imprisonment on the BZP charges and 15 months’ imprisonment in relation to the attempting to pervert the course of justice charge.[4] Ms Powle appeals only her conviction for attempting to pervert the course of justice. She also appeals her sentence on the basis that it is manifestly excessive if her appeal against conviction is allowed, but this was not the subject of submissions before us.

Background

[1]Crimes Act 1961, s 117(e), which carries a maximum penalty of seven years’ imprisonment.

[2]Misuse of Drugs Act 1975, s 6(1)(c), which carries a maximum penalty of life imprisonment.

[3]Section 6(1)(e), which carries a maximum penalty of eight years’ imprisonment.

[4]R v Powle [2016] NZDC 20936.

On 17 October 2013 the police executed a search warrant at the home of Ms Powle and her partner Mr Abernethy. The police found a first aid kit inside a rubbish bin containing drug-related items including ziplock bags containing methamphetamine, scales, BZP pills and notes that were consistent with records of supplying drugs (a tick list). The handwriting on the tick list was consistent with Ms Powle’s handwriting. The police then examined data from cellphones located at the address and found evidence of methamphetamine dealing and two sales of BZP. Ms Powle and Mr Abernethy pleaded not guilty. Mr Abernethy was remanded in custody. Ms Powle was granted bail.
Mr Abernethy applied for bail. His bail application was to be heard on 19 December 2013. On 17 December 2013 Mr Evans, an employee of Mr Abernethy and Ms Powle, signed an affidavit in support of Mr Abernethy’s bail application. Mr Evans claimed that the drugs and related items in the first aid kit belonged to him.
The police investigated the contents of Mr Evans’ affidavit and the circumstances in which it was made. They concluded the affidavit was untruthful. This led to Mr Evans, Mr Abernethy and Ms Powle being jointly charged with attempting to pervert the course of justice. Mr Evans pleaded guilty to that charge. The evidence of Mr Evans’ conviction was ruled admissible in the trial of Mr Abernethy and Ms Powle.[5]
[5]R v Powle DC Manukau CRI-2013-092-11416, 8 December 2015.
The evidence against Ms Powle and Mr Abernethy included the contents…

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 Powle v The Queen

Details

AGLC: Powle v The Queen [2017] NZCA 96
Case: [2017] NZCA 96
Decision Date: 29 March 2017 at 4 pm

CaseChat Overview and Summary

The appeal in Powle v The Queen involved Antoinette Hayley Powle, the appellant, who was contesting her conviction for attempting to pervert the course of justice and related drug offences. The case was heard by the Court of Appeal of New Zealand, with Cooper, Woodhouse, and Collins JJ presiding. Powle was convicted in the District Court at Manukau following a jury trial, and she appealed against her conviction for attempting to pervert the course of justice, as well as her sentence. The central legal issues revolved around whether Powle's actions led to the submission of a false affidavit to the court, and whether she intended to influence the outcome of her partner's bail application.

The court found that Powle had indeed taken significant steps to have Mr Evans swear a false affidavit, including communicating with him, providing information to his lawyer, and funding his legal fees. Furthermore, the court held that Powle's actions were part of a plan to influence the outcome of her partner's bail application. The court also determined that the preparation of the false affidavit by Mr Tait did not break the chain of causation between Powle's conduct and the filing of the affidavit in the District Court. As a result, the Court of Appeal dismissed Powle's appeal against her conviction for attempting to pervert the course of justice. Consequently, her appeal against her sentence was also dismissed.

Orders