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hunting.1 The charge against Mr Holden, who had been driving the vehicle in which the three men were travelling, was withdrawn.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…

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 Powley v Police

Details

AGLC: Powley v Police [2023] NZHC 1943
Case: [2023] NZHC 1943
Decision Date: 25 July 2023

CaseChat Overview and Summary

This appeal concerns the conviction of Martin Sinclair Powley for unlawful hunting of a deer. Powley had appealed his conviction on the basis that the District Court judge erred in amending the charge against him. The District Court had amended the charge from one of party liability to one of strict liability, finding Powley guilty of entering onto private land to search for the deer. Powley's counsel submitted that the amendment was prejudicial and that it was not an offence to search for a deer without the owner's permission. The Police argued that the amendment was appropriate and that searching for a deer was a form of unlawful hunting. Powley's appeal was allowed and his conviction quashed. The Court held that the District Court judge erred in amending the charge without providing counsel with an opportunity to be heard on the proposed amendment. The amendment resulted in prejudice to Powley, as he was not able to properly defend against the amended charge. The Court further held that there was no variance between the proof and the charge as required by s 136 of the Criminal Procedure Act 2011, and therefore that section did not apply. The Court also held that the amended charge was not defective, as searching for a deer could fall within the definition of "hunt or kill" in the Wild Animal Control Act 1977. However, the Court found that the amendment was still inappropriate as it prejudiced Powley's ability to defend himself.

Orders