Pue v The King - [2024] NZCA 123

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA424/2022
[2024] NZCA 123

BETWEEN	ADA SHARON PUE Applicant
AND	THE KING Respondent

Court:	Katz, Palmer and Jagose JJ
Counsel:	S L Abdale for Applicant M R L Davie for Respondent
Judgment: (On the papers)	22 April 2024 at 9.30 am

JUDGMENT OF THE COURT

The application for recall is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Palmer J)

On 12 February 2024, this Court issued a judgment dismissing Ms Ada Pue’s appeal of her conviction and sentence for possessing methamphetamine for supply and supplying methamphetamine.[1] In the same judgment, the Court dismissed Mr Dion Hunt’s appeal of his sentence for the same offences.

The judgment

[1]Hunt v R [2024] NZCA 10.

One of the grounds of Ms Pue’s conviction appeal was that an amendment of the charges she faced was unfair. This Court stated, relevantly:
[14]     During the trial, the charge list was amended to remove a reference to s 66(1) [of the Crimes Act 1961] in relation to the possession for supply charge. There is a lack of clarity about what led to this. Mr Weir, as counsel for Mr Hunt at trial and on appeal, recalls that the Judge raised with counsel for the Crown that, in his view, the way in which the charging document was expressed … presented problems for the Crown, following which the further charging document was filed. Ms Abdale cannot locate her notes of the trial.
Submissions
[15]     Ms Abdale submits the Judge erred in inviting, and then permitting, the Crown to amend the charge notice to remove the alleged party liability nature of the charge of possession for supply under s 66(1). Ms Abdale invites us to obtain a transcript of the Judge’s conversation with counsel and otherwise, effectively, to infer from the Crown’s closing submissions, and from the Judge’s summing up, that the possession for supply charge against Ms Pue was based on party liability under s 66(2) at the end of the trial, as opposed to party liability under s 66(1) for which she was originally charged. She submits that substantially changed the entire nature of the case. It was made too late in the trial and prejudiced the defence.
…
The amendment
…
[19]     We obtained a transcript of the legal discussion between the Judge and counsel, to which Ms Abdale referred. There was no discussion of liability under s 66(2). The Crown stated that, from the outset, its case had always been one of joint possession. Party liability for both Mr Hunt and Ms Pue under s 66(1) was under s 66(1)(a). The Crown submitted it was entitled to preserve its position on the type of party liability under s 66(1) until the Crown closings and defence counsel agreed with this. The Judge agreed that the Crown’s case has been one of joint possession, and said he would prepare his summing up and the question trail on that basis. It…

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 Pue v The King

Details

AGLC: Pue v The King [2024] NZCA 123
Case: [2024] NZCA 123
Decision Date: 22 April 2024 at 9.30 am

CaseChat Overview and Summary

Ada Sharon Pue sought recall of the Court of Appeal's judgment that dismissed her appeal against her conviction and sentence for possessing methamphetamine for supply and supplying methamphetamine. The appeal was heard by Katz, Palmer and Jagose JJ. The Court had dismissed the appeal on 12 February 2024, finding that the amendment of the charges against Ms Pue did not prejudice her defence. Ms Pue's counsel submitted that the Court's failure to obtain transcripts of the Judge's conversation with counsel before the amendment of the charge notice meant the Court had overlooked information that supported Ms Pue's position. Ms Pue's counsel submitted that her error in filing the wrong memorandum was a special reason for justice requiring the judgment to be recalled. The Crown submitted that this did not meet the high threshold for recalling a judgment. The Court found that the substantive discussion between the Judge and counsel took place after Ms Pue's counsel was absent due to illness and that the decision to amend the charge notice was made on that occasion. There was nothing in Ms Pue's counsel's trial notes that suggested the relevant passages were likely to contain any matters of substance that could potentially impact the outcome of the appeal. The Court found that Ms Pue's counsel's mistake in filing the wrong memorandum added nothing to the transcript of the legal discussion obtained by the Court regarding the decision. That discussion was consistent with the Court's judgment. This was not a ground on which the judgment may properly be recalled.

The Court declined the application for recall.

Orders