R v Povey

[2009] NZCA 362

IN THE COURT OF APPEAL OF NEW ZEALAND

CA212/2009
[2009] NZCA 362

THE QUEEN

v

GRANT SELWYN POVEY

Hearing:10 August 2009

Court:Baragwanath, Randerson and Panckhurst JJ

Counsel:D J Allan for Appellant

H A Wrigley for Crown

Judgment:19 August 2009 at 12 noon

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

____________________________________________________________________

JUDGMENT OF THE COURT

(Given by Baragwanath J)

[1]       The appellant was convicted in the District Court of burglary of a property at Thames and sentenced by Judge Tompkins to three years imprisonment.  The appeal is against conviction and sentence. 

The appeal against conviction

[2]       Several notified grounds of appeal were abandoned.  Mr Allan’s ultimate submission was in effect two-fold:

(a)That the Judge wrongly failed to direct the jury that an inference that the appellant had sustained injury falling from a ladder leading to the burgled premises, was not available;

(b)That the Judge’s direction to the jury failed to warn them against accepting that part of the Crown case.

[3]       The burglary was of an upstairs residential apartment in the former Lady Bowen Tavern in Thames at the intersection of Brown and Albert Streets.  The main frontage is on the western side of Brown Street and it has a southern frontage to Albert Street.  There are fire escape ladders at the southern and northern ends of the Brown Street frontage which give access to a balcony, which in turn gives access to the first floor apartment.

[4]       The appellant was a passenger in a car driven by a Mr Moore which stopped outside the eastern frontage of the building at about 2 am.  Mr Cassidy, the owner of a backpackers diagonally across Brown Street some 50 metres to the north east, heard the car arrive and went outside.  There was little lighting other than cigarette lighters being lit by the two occupants of the car, who walked along the eastern frontage of the apartment building trying to look inside.  The witness saw one of them climbing the ladder at the northern end of the building, climb on to the balcony at the top and go through a door into the building.  He saw the other man disappear out of sight around the southern corner of the building into Albert Street.  He then saw the first man return through the doorway and climb down carrying what looked like a stereo, go back to the car and meet his companion.  The first man returned to the northern ladder to make a second entry.  As he approached the top of the fire escape a police car drove west along Albert Street and right into Brown Street so that its headlights illuminated the eastern side of the building.  The man on the northern fire escape dropped to the ground and lay down.  The witness saw the other man trying to get away but he was hobbling.  The officer recognised the latter as the appellant and asked “What’s happening Grant?”  In the meantime Mr Cassidy heard a female voice screaming…