Powley v Police

[2023] NZHC 1943

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2023-412-16

[2023] NZHC 1943

BETWEEN

MARTIN SINCLAIR POWLEY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	27 June 2023
Appearances:	L A Andersen KC and S Gaskell for Appellant R P Bates for Respondent
Judgment:	25 July 2023

JUDGMENT OF EATON J

This judgment was delivered by me on 25 July 2023 at 11:30 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

POWLEY v NZ POLICE [2023] NZHC 1943 [25 July 2023]

Introduction

[1]    On 3 April 2022, a deer was shot and killed. The appellant, Martin Powley, and an associate, Mr A’Court, were found on private property with the carcass. Both men, and a third associate, Mr Holden, were charged with unlawful hunting.1 The charge against Mr Holden, who had been driving the vehicle in which the three men were travelling, was withdrawn. Mr A’Court, who fired the two shots that killed the deer, pleaded guilty. Mr Powley, who claimed he was asleep in the back of the car when the deer was shot, maintained a not guilty plea. Following a defended hearing, Judge Robinson reserved his decision. Without hearing further from counsel, the Judge amended the  charge,  found  the  amended  charge  proven  and  convicted  Mr Powley.2

[2]    Mr Powley appeals that conviction. Central to this appeal is whether the Judge erred in amending the charge.

What happened?

[3]    At about 10.30 pm on 3 April 2022, Mr Given, a sheep, beef and crop farmer, farming inland from Owaka, was at home. He heard a  truck  driving  past  on  Puerua Road. He then saw lights flashing onto his crop paddock and thought somebody was spotlighting for deer. He heard a gunshot and possibly a second shot. After an initial reconnaissance, the Police were called. Three officers attended.

[4]    The Police entered the paddock where Mr Given had seen the spotlights and found Mr Powley and Mr A’Court in the paddock with the deer carcass, which was in pieces.

[5]    Mr Powley gave evidence and called Mr A’Court and Mr Holden as witnesses. The defence evidence was the that the men had been attending a trap shoot organised by the Gore Town and Country Trap Shooting Club and had then gone “on a cruise”. Mr Powley was in the back seat of the vehicle, sleeping. He said he awoke when asked by Mr Holden to take a spotlight to help Mr A’Court with a deer. He said they got

1      Wild Animal Control Act 1977, s 8(2).

2      New Zealand Police v Powley [2023] NZDC 1026.

over a fence and walked into the paddock to recover the deer. He claims all he knew was that it had been shot. Mr Powley said he asked Mr Holden where the deer was and that Mr Holden directed him to the deer. Mr A’Court then cut up the deer. He said the Police then arrived, and he and  Mr A’Court  were escorted  off  the  paddock.  Mr Powley said he had no involvement in the shooting of the deer and denied the three men had any intention to go hunting.

[6]    In cross-examination, Mr Powley said he did not know there was a gun and spotlights in the vehicle. He said he may have heard one of the shots fired. He said he had no idea where the deer had been when it was shot. He acknowledged he could probably tell that the deer was on private property and that permission had not been sought from the owner to enter onto that property. He agreed his objective was to help find the deer that he understood to be somewhere in the paddock and that he was told to hold the spotlight for Mr A’Court  to  cut  the deer up.  He said  it  took at  least  10 minutes to find the deer; it was pitch dark and he was using a spotlight to illuminate the area.

[7]The prosecutor then put what was described as the “Police version” of events:

…, the three of you, Mr Holden, Mr A’Court and yourself are in this car and you are going down the road...you were hunting...

…

Mr Holden is driving, Mr A’court has the gun, and you are spotlighting up the paddock...you need two hands to operate this gun, you need two hands to operate a vehicle like this and that leaves you as the only remaining pair of hands in that vehicle.

...

So, you get to this area. Mr A’court takes his shot and you bring down the deer.

…

you…[go] up the paddock…to find this deer, cut it up and then bring it back to the vehicle.

[8]    Mr Powley denied that version of events and said that if he was spotlighting in the backseat, the driver would be unable to see because of the reflection of the spotlight. Mr Powley said he was sleeping when Mr A’Court shot the deer but agreed

that the purpose of going to the paddock was to find the deer, cut it up and bring it back to the vehicle.

[9]The prosecutor concluded his cross-examination with the following exchange,

Q. Ok, well, and most importantly for the charge, the police say that you knew when you were going into that paddock that the reason you were going onto that paddock was to retrieve a piece of deer or maybe the whole deer from private property. Do you accept that?

A. Yes, ‘cos I asked to go up and hold the spotlight. (emphasis added)

[10]   Mr A’Court was called as a witness for the defence and gave evidence he saw a deer on the side of the road and shot it. He said the deer was wounded and jumped over a fence. He then fired a second shot because he did not want the deer to suffer. He said Mr Powley was in the back seat at that time. After he had fired the second shot, he asked Mr Powley to help him, and Mr Powley held a spotlight when they entered the paddock to get the deer. Mr A’Court confirmed he had pleaded guilty and been convicted of unlawful hunting. In cross-examination, he denied a spotlight was used prior to the deer being shot. He said Mr Powley only got out of the vehicle after Mr A’Court asked him to help. Mr A’Court said he could not leave the deer wounded. He acknowledged being in the wrong in going into the farmer’s paddock but was concerned about leaving the deer suffering.

[11]   Mr Holden also gave evidence for the defence. He too confirmed Mr Powley was in the back seat of the vehicle when Mr A’Court shot the deer. He said Mr Powley had not used the spotlight from within the vehicle. He thought Mr Powley would have been woken by the first shot. He understood Mr A’Court took the gun when he went into the paddock to kill the deer if it was still alive.

[12]   On 19 December 2022, the Judge reserved his decision. In delivering the decision in open court on 23 January 2023, the Judge pronounced that he had amended the charge and found the amended charge proven. Counsel had not been given the opportunity to be heard on the proposed amendment.

Principles on appeal

[13]   Section 232 of the Criminal Procedure Act 2011 (CPA) provides that the  High Court may only allow an appeal against conviction if satisfied that the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.” A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.3

[14]   The appeal proceeds by way of rehearing, and this Court is required to form a view of the facts.4 If this Court reaches a different view on the evidence, it follows the trial judge necessarily will have erred and the appeal must be allowed.5 The onus is on the appellant to show that an error occurred.

District Court decision

[15]   In summarising the background, the Judge said Mr A’Court shot a deer “near to or on Given Farm” and that the deer ultimately fell in a paddock. The Judge found Mr Powley and Mr A’Court then entered onto the farm “to search for and retrieve the deer”. The Judge observed that the charge against Mr Holden had been withdrawn and that Mr A’Court had pleaded guilty.

[16]The Judge set out the charge in full:

[Mr Powley on 3 April 2022 at Owaka] (jointly offended with Michael Warren A’Court and Tony Wilson Holden) did hunt a wild animal namely a deer on land namely Given Farm Puerua Valley Road Owaka without the express authority of the owner of that land.

[17]   Judge Robinson then set out the statutory definition of “hunt or kill” and of “wild animals”, observing that the wording of the charge under the Wild Animal

3      Criminal Procedure Act 2011, s 232(4).

4      Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]-[32].

5 At [38].

Control Act 1977 (the Act) gave rise to “a number of scenarios under which the defendant’s liability could fall to be considered”.6

[18]   The Judge described the prosecutor as first cross-examining Mr Powley on the basis he was a party to the shooting, but later put the case as one alleging Mr Powley had searched for the deer. The Judge observed it was the defence case that Mr Powley did not know the deer had been shot unlawfully while it was on private property, that his only involvement was holding a spotlight after the deer was shot, and he was therefore not a party to hunting.

[19]The Judge said:7

Given the different bases for assessing liability, it is necessary to amend the charge for clarity. It is apparent that the defence appears to have been attempting to meet a case that was not run by the prosecution, therefore the question of prejudice arises.

[20]   The Judge did not consider the defence was prejudiced because the defence had been given pre-trial notice the prosecution did not consider there to be a single unlawful act that fell within the definition of to “hunt or kill”.

[21]   Judge Robinson amended the charge to allege Mr Powley searched for the deer, “as that was the theory emphasised by Mr Collins”.8

[22]The charge was amended to read:

[Mr Powley] did hunt a wild animal namely a deer on land namely Given Farm Puerua Valley Road Owaka without the express authority of the owner of that land.

Particulars

Entering on to Given Farm to search for a deer

[23]   The Judge described the amended charge as an offence of strict liability and that Mr Powley’s liability was now that of a principal, meaning party liability did not fall for consideration.

6      At [6]

7 At [9].

8      At [13], Mr Collins was the Police prosecutor.

[24]   The Judge then found that the case was resolved on the defence evidence. Judge Robinson found that, by Mr Powley’s own admission, he entered the farm in search of the deer carcass, meeting the definition of hunting, and that there was also sufficient evidence to prove hunting in that Mr Powley had, in his possession, the whole or any part of the carcass. Those findings reflected what the Judge described as the extended definition of hunting in the Wild Animal Control Act.

[25]   The Judge acknowledged Mr Andersen KC’s argument that Mr Powley could not be found guilty as he had no knowledge the deer had been shot unlawfully but observed that knowledge was not an element of the amended charge. The Judge accepted the prosecution would have had to prove knowledge if Mr Powley was charged as a party but found that “that is not the basis on which the prosecution has proceeded”.9 The Judge then noted that, had it been necessary to make a factual finding as to whether Mr Powley had knowledge, the evidence did point to Mr Powley having knowledge of the second shot. The Judge doubted Mr Powley’s evidence, noting his inconsistency, attempts to minimise his role and the fact the Police had the impression he was “playing possum” when they attempted to locate him on the night.10 Mr Powley’s assertion that he had no knowledge of the firearm and ammunition was, according to the Judge, implausible given the Judge’s impression that Mr Powley and the other men were on a “boys’ hunting trip on the back roads”.11

[26]The amended charge was found to be proven.

Submissions

Appellant’s submissions

[27]Mr Andersen KC on behalf of Mr Powley advances four grounds of appeal:

(a)the amendment to the charge caused prejudice to the appellant which the Court did not remedy;

9 At [32].

10 At [34].

11 At [36].

(b)the Court has no jurisdiction to amend the charge when delivering a reserved decision; and

(c)the amended charge is not an offence. He submits that to search for a deer/deer carcass does not fall within the definition of hunting;

(d)the amended charge was not proven on the evidence (sufficiency of evidence).

Respondent’s submissions

[28]   With reference to s 136 CPA, R v Lewis,12 and Johnson v Police,13 Mr Bates, for the Police, submits a charge must be amended if, in the Court’s opinion, the defendant will not be misled or prejudiced in his or her defence by the amendment. Mr Bates contends no prejudice can have arisen because Mr Powley had notice of the evidence and that did not change. Additionally, Mr Andersen should have been aware of the wider definition of hunting and the subsequent basis for broader liability.

[29]   Mr Bates cites ss 133 and 234(2) CPA, and Jones v Police, in support of a submission that a charge may be amended at any time before delivery of a Court’s decision.14 This includes the period following the cessation of the hearing and the reserving of judgment.

[30]   Mr Bates submits Judge Robinson’s interpretation of the Act is correct and that every activity in the definition of “hunt or kill” may be considered individually on a logical, correct and purposive interpretation of the statute. He supports the finding that searching is hunting.

[31]   As to sufficiency of evidence, Mr Bates says that although not using the word “searching”, Mr Powley admitted he was “trying to find” the deer, and that is sufficient to prove searching.

12     R v Lewis [2014] NZHC 2331.

13     Johnson v Police [2016] NZHC 1631.

14     Jones v Police [1998] 1 NZLR 447 (CA).

Analysis

[32]Mr Powley was charged under is s 8(2) of the Act, which provides:

Except as provided in section 16, and section 56 of the Agricultural Pests Destruction Act 1967, nothing in subsection (1) shall authorise any person to hunt or kill or have in his possession any wild animal on any land, or discharge a firearm into or over or across any land, without the express authority of the owner or occupier of that land. Every person commits an offence against this Act who hunts or kills or has in his possession any wild animal on any land, or discharges a firearm into or over or across any land, without the express authority of the owner or occupier of that land.

[33]The interpretation section provides:

hunt or kill, in relation to wild animals, includes—

(a)hunting or searching for any wild animal, and killing, taking, trapping, capturing, having in possession, tranquillising, or immobilising any such animal by any means:

(b)pursuing, disturbing, or molesting any such animal:

(c)taking or using any dog, firearm, vehicle, vessel, aircraft, net, snare, trap, poison, or like method while engaged in hunting any such animal, whether or not this results in capturing or killing any such animal:

attempting to hunt or capture or kill any such animal while engaged in recreational, commercial, or guided hunting or hunting to capture live wild animals for export, farming, sale, breeding, exchange, public display, scientific, or other purposes:

engaging in a wild animal recovery operation

…

wild animal—

(a)means—

(i)any deer (including wapiti or moose):

…

(b)includes the whole or any part of the carcass of any such animal:

…

[34]   I agree with the Judge that the definition of to “hunt or kill” as set out s 2 of the Act is broad. It encompasses several different acts that do not necessarily fall

comfortably within the generally accepted meaning of those words. That there are alternative bases upon which the offence of unlawful hunting of a wild animal may be proven does not however detract from the obligation of the prosecution to fully and fairly inform the defendant of the substance of the charge proffered.

[35]   I have concluded the Judge was wrong to amend the charge and that a miscarriage of justice has occurred. I will nevertheless briefly respond to the further grounds advanced by Mr Andersen. First, I think it helpful to set out the relevant history of the charge and the events that gave rise to the amendment.

[36]   The original charge  alleged  Mr  Powley,  jointly  with  Mr  A’Court  and  Mr Holden, “did kill a wild animal namely a deer” without authority. Pretrial, the charge was amended to substitute “hunt” for “kill”. Although the charging document did not make express reference to s 66 of the Crimes Act 1961, it alleged party liability in describing Mr Powley as being charged jointly. No particulars were provided.

[37]   The original summary of facts (naming all three defendants) alleged the trio had come across a deer grazing on a crop paddock, with one of the defendants driving, one shining a spotlight into the crop paddock and another with easy access to a high- powered rifle. That summary of facts alleged one of the defendants had fired two shots, killing the animal, and that Mr Powley and Mr A’Court “then walked up to the dead animal and began cutting it up”. Notably, the allegation was that the deer was shot on private land.

[38]   The charge against Mr Holden (the driver) was then withdrawn. Mr A’Court entered a guilty plea. An amended summary of facts prepared for his sentencing recorded that Mr A’Court had seen a deer grazing on the road, that he had then shot the animal which had caused it to flee onto a nearby crop paddock, which was private land. The summary recorded Mr A’Court then fired a second shot, killing the animal in the paddock. Mr A’Court and Mr Powley then exited the vehicle, entered the paddock and cut up the dead animal. The Police case had shifted to an allegation the first shot was fired when the deer was on the road (not private land), but the second shot was fired when the deer was on private land.

[39]   Mr Powley maintained his not guilty plea. In a case management memorandum, the defence position was summarised as follows:

Denies that he was party to the unlawful act (the second shot) which resulted in the hunting being unlawful.

[40]   That position accords with the prosecution case as outlined in the summary of facts prepared for Mr A’Court’s sentencing, that it was the second shot that was the unlawful act alleged by the prosecution.

[41]In a memorandum by way of reply, the Police said:

Police do not accept this was only unlawful act within definition of “hunt or kill” found in s 2 of the Wild Animal Control Act 1977.

[42]   The prosecutor provided no detail as to what other unlawful acts, beyond the second shot, were alleged to have fallen within the definition of to “hunt or kill”. There was no application to amend the charge to include an alternative basis of liability.

[43]   The notes made by the Judge at trial (contained in a Judge-alone trial record), record Mr Andersen making an opening statement on behalf of Mr Powley:

Issue is def did not know the deer had been shot until after it had been shot. His involvement was in holding the spotlight after deer shot, therefore not a party to hunting.

[44]   Mr Andersen’s opening address at the conclusion of the prosecution case is recorded as:

Powley had no knowledge of it being shot – will call evidence.

Def will say had no real knowledge of the circumstances, other will say exactly what happened.

[45]   The final two questions Mr Andersen asked of Mr Powley in his evidence-in- chief provide further insight as to the defence understanding of the case it was being asked to answer:

Q.       Did you have any involvement at all in the shooting of the deer?

A.       No.

Q.       When you went for the drive was there any intention to go hunting?

A.       No. No.

[46]   The prosecutor’s version of events as put to Mr Powley in cross-examination initially advanced the Police theory  that  Mr  Powley  had  been  spotlighting  for  Mr A’Court.15 That was denied by Mr Powley. The prosecutor then put to Mr Powley that he had gone into the paddock to find the deer, cut it up, and bring it back to the vehicle. The last proposition put in cross-examination of Mr Powley, described by the prosecutor as most important for the charge, was that Mr Powley had gone into the paddock to retrieve the deer.16 Notwithstanding that line of cross-examination and what I find was Mr Powley’s general acknowledgment of that proposition, the prosecutor made no application to amend the charge to allege hunting by searching.

[47]   In the reserved decision, the Judge acknowledged the prosecutor initially cross- examined Mr Powley alleging he was a party to the shooting but later put the case that Mr Powley was liable for searching for the deer. I agree the prosecutor did change tack. But notably, the prosecutor made a decision, I consider deliberately, not to use the word “searching” when cross-examining Mr Powley or the other defence witnesses.

[48]   From that summary, I accept the prosecution case, as set out in the pretrial charging document and the disclosed summaries of fact, was that Mr Powley was involved in a joint enterprise hunting trip. It was alleged Mr Holden was driving the vehicle, Mr Powley was using a spotlight to find deer, and Mr A’Court was armed as the shooter. Mr Powley was alleged to have been spotlighting to assist Mr A’Court to fire (at least) the second shot, at which point the deer was on private property. There is no doubt as to what the defence understood was the charge it was being asked to answer. As the Judge recorded, the defence case was that Mr Powley did not know the deer had been shot (in the sense of being shot unlawfully while on the private property) as he was asleep and that he was not a party to the hunting as his only involvement was holding the spotlight after the deer was shot. He had no knowledge

15     At [7] above.

16     At [9] above.

of the unlawful hunting carried out by Mr A’Court and was, therefore, not guilty of being a party to unlawful hunting.

[49]   In my view, it is clear that both before and during trial the defence focus was on whether Mr Powley had been a party to Mr A’Court shooting the deer.

[50]   The effect of the amendment was to remove the allegation of party liability and shift the focus away from the shooting of the deer. As a consequence, Mr Powley’s knowledge of Mr A’Court’s acts were no longer relevant. At issue in assessing whether the amended charge was proven was whether Mr Powley had engaged in searching for (and taking possession of) the deer carcass on private property without authority. The amended charge involved a quite different factual and legal enquiry.

Was the amendment an error?

[51]   The Judge did not refer to the statutory authority for amendment of a charge. The relevant provisions are ss 133 and 136 CPA:

133     Amendment of charge

(1)A charge (including any of the particulars required to be specified in a charging document under section 16(2)) may be amended by the court at any stage in a proceeding before the delivery of the verdict or decision of the court.

(2)The amendment may be made on the court’s own motion or on the application of the prosecutor or the defendant.

(3)A Registrar may, in respect of any offence other than a category 4 offence, exercise the power under subsection (1) if the prosecutor and the defendant consent to the amendment.

…

136     Procedure if charge amended during trial

(1)Despite sections 21 and 133, during the trial a charge may be amended to substitute one offence for another offence only if—

(a)there appears to be a variance between the proof and the charge; and

(b)the amendment will make the charge fit with the proof.

(2)A charge must be amended under subsection (1) if in the court’s opinion the defendant will not be or has not been misled or prejudiced in his or her defence by the amendment.

(3)Subsection (4) applies if, in the court’s opinion, the defendant has been misled or prejudiced in his or her defence by any amendment of a charge made during the trial under section 133.

(4)If, in the court’s opinion, the effect of the defendant having been misled or prejudiced might be removed by adjourning or postponing the trial, the court may make the amendment and—

(a)adjourn the trial; or

(b)postpone the trial and discharge the jury.

[52]   Section 133 permits the amendment of the charge, including the particulars. Section 136 permits the substitution of one offence for another, but only if there is variance between the proof and the charge.

[53]   A proposed amendment (either to the charge, including the particulars, or the substitution of an offence) might be considered an amendment as to form and not substance, such that it is not necessary to give counsel an opportunity to be heard as to whether the defendant is misled or prejudiced by the proposed amendment. Generally, however, a Judge considering amendment of a charge or offence should give counsel an opportunity to be heard. A Judge should not assume a defendant is not misled or prejudiced.

[54]   The Judge did not give Mr Powley’s trial counsel an opportunity to be heard on the amendment. In my view the Judge fell into error in failing to do so.

Did s 136 apply?

[55]   Mr Andersen and Mr Bates submit the Judge made the amendment in reliance on s 136. However, s 136 only applies if the amendment substitutes one offence for another. Otherwise, amendment is guided by s 133. In this case, Mr Powley faced a charge under s 8(2) of the Act alleging unlawful hunting. The amendment did not substitute that offence. Rather, the basis of liability and the particulars of the offence were amended. The offence remained one of unlawful hunting. In my view s 136 did not apply.

[56]   Furthermore, a charge may not be amended under s 136 unless there appears to be variance between the proof and the charge, and the amendment will make the charge fit with the proof. The Judge did not refer to variance. Rather, the Judge considered it appropriate to amend for “clarity”. More particularly, the Judge was of the view that the defence had run a defence to a case that it was not being asked to answer. That reasoning for the amendment supports my view the Judge did not rely on s 136.

[57]   The Judge resolved to amend the charge for clarity, given the different bases for liability and amended the charge to allege “searching” for the deer because that was the theory emphasised by the prosecutor. The only reason there may have been a lack of clarity was because the prosecutor sought to advance a case theory that was at odds with the charging document. That was not grounds to amend the charge. Further, it was not appropriate for the Judge to then amend the charge to fit the theory emphasised by the prosecutor from part-way through the proceeding. A charge is not amenable to amendment to fit a prosecutor’s theory. Variance, as described in s 136, may permit amendment, but then only subject to prejudice and whether misleading has occurred. But variance was not raised or considered in this case. That there was not variance that would permit the Court to amend under s 136 is confirmed in that, having found Mr Powley guilty  on the amended  charge,  the Judge also  rejected  Mr Powley’s denial of knowledge relevant to the original charge.

[58]   I do not agree with the Judge as to the rationale for amending the charge. In my view the Judge should have determined the case on the unamended charge.

Prejudice or misleading?

[59]   Mr Andersen focussed on the prejudice to and misleading of the appellant, so I turn to consider that issue. The Judge did turn his mind to prejudice to the defence. It was appropriate and necessary to do so. The amendment shifted the legal and factual basis for liability. The risk the defence would be prejudiced and misled by the proposed amendment required careful consideration.

[60]   The Judge did not consider the defence was prejudiced because in response to the defence case management memorandum recording an understanding the second

shot was the alleged unlawful act, the prosecution gave notice it did not accept the second shot was the only unlawful act. Therefore, the Judge found, “[a]ttention was clearly directed to the broader bases of liability”.17

[61]   Mr Bates supports the findings of the Judge and submits there was no prejudice to the defence for several reasons. The appellant had notice of the evidence to be called, counsel must have been aware of the broader basis of liability including “searching” for a wild animal, that “searching” as a basis for liability was “squarely before the Court”, and because the defence had been attempting to meet a case that was not being advanced by the prosecution. Finally, he submits the factual basis for the amendment was  “supported” by evidence given by the appellant.  Generally,   Mr Bates submits that the evidence disclosed pre-trial and offered at trial, together with the evidence given by the appellant at trial, must have made it apparent that   Mr Powley’s actions were likely to fall within the definition of “search” in the Act. Mr Andersen strongly disputes that submission and says the defence were both misled and prejudiced.

[62]   It is a fundamental obligation of the prosecution to ensure the charging document fully and fairly informs the defendant of the substance of the offence alleged. That is a statutory obligation as prescribed by s 17 of the CPA. Section 17

(4) of CPA provides:

17       Content of charge

…

(4)A charge must contain sufficient particulars to fully and fairly inform the defendant of the substance of the offence that it is alleged that the defendant has committed.

[63]   A defendant should need to go no further than the charging document in order to understand the factual and legal basis of alleged criminal liability. In my view, the unamended charging document was clear and, although lacking particulars, informed Mr Powley that he was alleged to have assisted the named co-offenders in hunting for a wild animal. That was the case initially advanced by the prosecution. Mr Powley

17 At [12].

was alleged to have assisted Mr A’Court by acting as a “spotter” when Mr A’Court shot and killed the injured deer.

[64]   If, as suggested, the prosecution had, pre-trial, identified alternative bases of liability, it was the responsibility and obligation of the prosecution to apply to amend the charge to include the alternative bases. It is not enough to simply note in a case management memorandum that there might be an unspecified alternative basis of liability.

[65]   The prosecution then advanced the case in accordance with the charging document and as advanced against Mr A’Court, alleging Mr Powley was guilty as a party in relation to the second shot. It was only later in cross-examination, that the prosecutor introduced an alternative basis of liability, searching for a carcass.

[66]   The Judge erred in finding Mr Powley was advancing a defence to a case he was not being asked to answer. The defence case was appropriately focussed on the charge as set out in the charging document and as confirmed in the summaries of fact. Rather, the prosecution was seeking to pivot to a factual and legal basis for liability that fell outside the scope of the charging document. Mr Bates submits that the issue of guilt by virtue of “searching” was squarely before the Court. I disagree. To put hunting by searching “squarely before the Court” required the prosecution to incorporate that allegation within the charging documents.

[67]   The consequence in this case is that Mr Powley elected to give and call evidence, answering the case as alleged in the charging document, only to face a quite distinct Police case theory in cross-examination.

[68]   A feature of the cases relied on by Mr Bates is that the defence advanced at trial necessarily addressed the substituted offence. In Johnson v Police, Clark J found that defence counsel had adduced evidence in the course of the trial which spoke to the charge as amended, and that merely being able to undertake a more focussed cross- examination would not have affected the outcome.18 The charge involved a breach of a protection order by following the complainant. The charge was amended to

18     Johnson v Police, above n 13.

breaching a protection order by inflicting psychological abuse. Clark J found the victim’s state of mind was “if not centre-stage during the trial, at least a focal point”.19 A protection order was in place and deliberately breached three times in one day. The possible amendment should have been clear to counsel.

[69]   In R v Lewis, the defendant was facing charges of sexual violation.20 Those charges were amended and substituted by a charge of sexual contact with a young person, following trial and after the Judge reserved his decision. The defence at trial was one of denial of any sexual contact. In considering prejudice to the defendant in amending the charges, Brewer J said:

[40]      I do not find that amending the charges would mean Mr Lewis was misled or prejudiced in his defence:

(a)The charges were sexual violation. I propose to substitute lesser charges.

(b)The trial tactic adopted by Mr Dacre was aimed at an end result of insufficiency of evidence on the element of penetration. The tactic succeeded.

(c)The overall defence was a complete denial that any sexual contact occurred. Mr Lewis gave evidence to that effect. This is not a case where it can be claimed that if the serious charges had not been brought the defendant would have given evidence in a bid to inject doubt on the lesser charges because the cross-examination risk was less.

(d)It might be that if Mr Lewis had faced from the beginning only the lesser charges then a more aggressive defence might have been mounted. But, in this case, the defence was not acceptance of some sexual contact but a denial of sexual violation. The defence was a total denial of contact. I do not see prejudice in this case which is material to the decision I have to make.

[70]   In any case in which amendment is proposed, great care must be exercised to ensure the defence will not be prejudiced. It is well established that a defendant may be prejudiced by an amendment if counsel has prepared and presented the case in accordance with a theory of the case which is no longer appropriate, and counsel cannot recast the case to meet the new charge(s).21

19 At [21].

20     R v Lewis, above n 12.

21     R v Johnston [1974] 2 NZLR 660 (CA) at 664; and R v Hadfield [2007] NZCA 414 at [51].

[71]   Mr Powley’s defence was that he was asleep when the second shot was fired and, therefore, did not have knowledge of the actions of his co-defendant. It was the defence case that his acts in going onto the private property to locate and retrieve the carcass of the deer were acts that took place after the alleged offence, namely the shooting of the deer. Knowledge was the central issue.

[72]   The amendment removed the obligation on the prosecution to prove party liability. Consequently, knowledge was a non-issue. That was the critical issue which was the focus of the defence case. Mr Powley conducted his defence understanding he was alleged to have been a party to the second shot fired by Mr A’Court. He was not required to and did not  attempt  to  meet  a  charge  of  hunting  by searching. Mr Powley was not given a fair opportunity to address that allegation. The amendment was made at a stage at which it was too late for the defence to respond.

[73]   I accept the defence would have approached the case differently if aware that the case was to be advanced and determined on an alternative basis. In my view, the defence was both misled and prejudiced by the amendment.

[74]   In summary, I do not accept that it is appropriate to amend a charge to allege a different basis of liability on the grounds the defence should have known that it might be asked to answer a different case in circumstances where the issue of alternative bases for liability has been raised but not the subject of amendment pre-trial. In this case, the prosecution, whilst committing to a case theory of party liability within the charging document, had in mind alternative bases of factual and legal liability, and was permitted to wait and prefer a particular theory of its case after the defence had elected to give and call evidence. In my view, that process effectively negates the onus of proof and permits the original charging document to be no more than a holding document pending a form of enquiry. Any lack of clarity or misunderstanding on behalf of the defence was, in my view, a consequence of the prosecution’s failure to meet its obligations under the CPA. It was not appropriate for the Judge to amend the charge in those circumstances. The defence was both prejudiced and misled. A miscarriage of justice has occurred.

No amendment after decision reserved

[75]   Mr Andersen submits the Judge had no jurisdiction to amend the charge, having reserved his decision. He submits that s 133(1) CPA requires an amendment to be made “before the delivery of the verdict or decision of the Court” and does not permit amendment in a reserved decision. He submits the Judge amended the charge “during the decision’.

[76]   I do not accept that argument. The Court of Appeal in Jones v Police found, in relation to s 43 of the Summary Proceedings Act 1957, that the power of the Court to amend an information includes the power to amend after the evidence is concluded and during the course of the Judge giving consideration to a reserved decision.22 In upholding the Judge’s decision to amend, the Court of Appeal observed that it would be “odd” if a charge for which a conviction had been entered could be amended on appeal but could not be amended when the Judge is considering whether to enter a conviction.23

[77]   Though the Court in Jones was dealing with a since repealed provision of the Summary Proceedings Act, the Criminal Procedure Act 2011 preserves the power of the Court on appeal to enter a conviction for a different offence from the offence of which the appellant was found guilty at trial.24

[78]   Although s 133 refers to amendment being made at any time before the verdict of the delivery of the decision, and s 136 to the substitution of an offence during the trial, I do not think the shift in language is of any moment.

[79]   In my view, there is no issue with an amendment to the charge after a decision has been reserved. The error in this case was the failure of the Judge to amend without giving counsel the opportunity to be heard.

22     Jones v Police, above n 14.

23     Jones v Police, above n 14, at 451.

24     Section 234.

Amended charge does not allege an offence

[80]   The Judge amended the charge to include as a particular: “Entering onto Given Farm to search for a deer”. Mr Andersen submits that the act of searching for a deer does not fall within the definition of “hunt or kill” and that the amended charge does not therefore allege an offence.

[81]A charging document that does not disclose an offence is a nullity.25

[82]   In light of the view I have reached that the appeal must be allowed on the grounds the Judge was wrong to amend the charge, it is not necessary that I resolve the statutory interpretation question. I observe, however, that the definition of “hunt or kill” is troublesome.

[83]Section 2 of the Act defines to hunt or kill as including:

(a)hunting or searching for any wild animal, and killing, taking, trapping, capturing, having in possession, tranquillising, or immobilising any such animal by any means:

(emphasis added)

[84]   Mr Andersen submits it would only be an offence of unlawful hunting of a wild animal in the present case to both search for a deer and either kill, take, trap, capture, have possession, tranquilise or immobilise it.

[85]   Mr Bates contends that the word “and” in subs (2)(a) should be read as “and also includes”. Mr Bates submits if that were not the case, “hunting” for or “killing” any wild animal would not fall within the definition of “hunt or kill”. That would be at odds with not only the ordinary meaning of those words, but with a purposive and textual interpretation of the Act.26

[86]   I prefer Mr Bates’ submission and would not have found the amended charge was defective. On any view, the interpretation section is poorly drafted and requires reform.

25     Muirson v Collector of Customs [1982] 2 NZLR 506 (HC).

26     Legislation Act 2019, s 10.

Sufficiency of evidence

[87]   The final ground of appeal advanced by Mr Andersen is that the evidence did not permit a finding that Mr Powley had engaged in searching for the carcass. I do not agree. Although I agree that the term “search” was not used in cross-examination, and therefore not adopted by Mr Powley, I agree with Mr Bates that the evidence permitted the Judge to find Mr Powley had engaged in an act of searching for the deer.

[88]By way of example, in cross-examination, Mr Powley was asked:

Q.…And at the time you cross, you knew what you were going to be doing was trying to find the deer that is somewhere up the paddock.

A.       Yes.

[89]   It was reasonable for the Judge to find Mr Powley had admitted searching for the deer. If the amendment was lawful, the Judge did not err in finding the charge proven.

Result

[90]   The appeal is allowed. The conviction is quashed. Given the lower-level nature of the charge and that the “shooter” has pleaded guilty to a charge of unlawful hunting, I do not consider the interests of justice require a retrial.

...................................................

Eaton J

Solicitors:

RPB Law, Dunedin

Copy to:

Leonard Andersen KC, Barrister, Dunedin Savanna Gaskell, Barrister, Dunedin