POWLEY v NZ POLICE [2023] NZHC 1943

POWLEY v NZ POLICE [2023] NZHC 1943 [25 July 2023]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2023-412-16[2023] NZHC 1943BETWEEN MARTIN SINCLAIR POWLEYAppellantAND NEW ZEALAND POLICERespondentHearing: 27 June 2023Appearances: L A Andersen KC and S Gaskell for AppellantR P Bates for RespondentJudgment: 25 July 2023JUDGMENT OF EATON JThis judgment was delivered by me on 25 July 2023 at 11:30 ampursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: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. Bothmen, and a third associate, Mr Holden, were charged with unlawful hunting.1 Thecharge against Mr Holden, who had been driving the vehicle in which the three menwere travelling, was withdrawn. Mr A'Court, who fired the two shots that killed thedeer, pleaded guilty. Mr Powley, who claimed he was asleep in the back of the carwhen the deer was shot, maintained a not guilty plea. Following a defended hearing,Judge Robinson reserved his decision. Without hearing further from counsel, theJudge amended the charge, found the amended charge proven and convictedMr Powley.2[2] Mr Powley appeals that conviction. Central to this appeal is whether the Judgeerred 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 onPuerua Road. He then saw lights flashing onto his crop paddock and thoughtsomebody 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 andfound Mr Powley and Mr A'Court in the paddock with the deer carcass, which was inpieces.[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 organisedby 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 askedby Mr Holden to take a spotlight to help Mr A'Court with a deer. He said they got1 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 knewwas that it had been shot. Mr Powley said he asked Mr Holden where the deer wasand that Mr Holden directed him to the deer. Mr A'Court then cut up the deer. He saidthe 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 threemen had any intention to go hunting.[6] In cross-examination, Mr Powley said he did not know there was a gun andspotlights in the vehicle. He said he may have heard one of the shots fired. He saidhe had no idea where the deer had been when it was shot. He acknowledged he couldprobably tell that the deer was on private property and that permission had not beensought from the owner to enter onto that property. He agreed his objective was to helpfind the deer that he understood to be somewhere in the paddock and that he was toldto hold the spotlight for Mr A'Court to cut the deer up. He said it took at least10 minutes to find the deer; it was pitch dark and he was using a spotlight to illuminatethe 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 thiscar and you are going down the road...you were hunting...Mr Holden is driving, Mr A'court has the gun, and you arespotlighting up the paddock...you need two hands to operate this gun,you need two hands to operate a vehicle like this and that leaves youas the only remaining pair of hands in that vehicle....So, you get to this area. Mr A'court takes his shot and you bring downthe deer.you[go] up the paddockto find this deer, cut it up and then bringit back to the vehicle.[8] Mr Powley denied that version of events and said that if he was spotlighting inthe backseat, the driver would be unable to see because of the reflection of thespotlight. Mr Powley said he was sleeping when Mr A'Court shot the deer but agreedthat the purpose of going to the paddock was to find the deer, cut it up and bring itback 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 youknew when you were going into that paddock that the reason you weregoing onto that paddock was to retrieve a piece of deer or maybe the wholedeer 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 sawa deer on the side of the road and shot it. He said the deer was wounded and jumpedover 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 secondshot, he asked Mr Powley to help him, and Mr Powley held a spotlight when theyentered the paddock to get the deer. Mr A'Court confirmed he had pleaded guilty andbeen convicted of unlawful hunting. In cross-examination, he denied a spotlight wasused prior to the deer being shot. He said Mr Powley only got out of the vehicle afterMr 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 wasconcerned about leaving the deer suffering.[11] Mr Holden also gave evidence for the defence. He too confirmed Mr Powleywas in the back seat of the vehicle when Mr A'Court shot the deer. He said Mr Powleyhad not used the spotlight from within the vehicle. He thought Mr Powley would havebeen woken by the first shot. He understood Mr A'Court took the gun when he wentinto the paddock to kill the deer if it was still alive.[12] On 19 December 2022, the Judge reserved his decision. In delivering thedecision in open court on 23 January 2023, the Judge pronounced that he had amendedthe charge and found the amended charge proven. Counsel had not been given theopportunity to be heard on the proposed amendment.Principles on appeal[13] Section 232 of the Criminal Procedure Act 2011 (CPA) provides that theHigh 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 ofjustice 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 relationto the trial that has created a real risk that the outcome of the trial was affected, or hasresulted in an unfair trial.3[14] The appeal proceeds by way of rehearing, and this Court is required to form aview of the facts.4 If this Court reaches a different view on the evidence, it followsthe trial judge necessarily will have erred and the appeal must be allowed.5 The onusis 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 "nearto or on Given Farm" and that the deer ultimately fell in a paddock. The Judge foundMr Powley and Mr A'Court then entered onto the farm "to search for and retrieve thedeer". The Judge observed that the charge against Mr Holden had been withdrawnand 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 WarrenA'Court and Tony Wilson Holden) did hunt a wild animal namely a deer onland namely Given Farm Puerua Valley Road Owaka without the expressauthority 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 Animal3 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 thedefendant's liability could fall to be considered".6[18] The Judge described the prosecutor as first cross-examining Mr Powley on thebasis he was a party to the shooting, but later put the case as one alleging Mr Powleyhad searched for the deer. The Judge observed it was the defence case that Mr Powleydid not know the deer had been shot unlawfully while it was on private property, thathis only involvement was holding a spotlight after the deer was shot, and he wastherefore not a party to hunting.[19] The Judge said:7Given the different bases for assessing liability, it is necessary to amend the chargefor clarity. It is apparent that the defence appears to have been attempting to meet acase 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 defencehad been given pre-trial notice the prosecution did not consider there to be a singleunlawful 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 FarmPuerua Valley Road Owaka without the express authority of the owner of thatland.ParticularsEntering on to Given Farm to search for a deer[23] The Judge described the amended charge as an offence of strict liability andthat Mr Powley's liability was now that of a principal, meaning party liability did notfall 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 insearch of the deer carcass, meeting the definition of hunting, and that there was alsosufficient evidence to prove hunting in that Mr Powley had, in his possession, thewhole or any part of the carcass. Those findings reflected what the Judge describedas the extended definition of hunting in the Wild Animal Control Act.[25] The Judge acknowledged Mr Andersen KC's argument that Mr Powley couldnot be found guilty as he had no knowledge the deer had been shot unlawfully butobserved that knowledge was not an element of the amended charge. The Judgeaccepted the prosecution would have had to prove knowledge if Mr Powley wascharged as a party but found that "that is not the basis on which the prosecution hasproceeded".9 The Judge then noted that, had it been necessary to make a factualfinding as to whether Mr Powley had knowledge, the evidence did point to Mr Powleyhaving 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 theimpression he was "playing possum" when they attempted to locate him on the night.10Mr 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 andthe other men were on a "boys' hunting trip on the back roads".11[26] The amended charge was found to be proven.SubmissionsAppellant'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 Courtdid not remedy;9 At [32].10 At [34].11 At [36].(b) the Court has no jurisdiction to amend the charge when delivering a reserveddecision; and(c) the amended charge is not an offence. He submits that to search for a deer/deercarcass 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, thedefendant 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 theevidence and that did not change. Additionally, Mr Andersen should have been awareof 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 asubmission that a charge may be amended at any time before delivery of a Court'sdecision.14 This includes the period following the cessation of the hearing and thereserving of judgment.[30] Mr Bates submits Judge Robinson's interpretation of the Act is correct and thatevery activity in the definition of "hunt or kill" may be considered individually on alogical, correct and purposive interpretation of the statute. He supports the findingthat 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 sufficientto 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 PestsDestruction Act 1967, nothing in subsection (1) shall authorise any person tohunt or kill or have in his possession any wild animal on any land, or dischargea firearm into or over or across any land, without the express authority of theowner or occupier of that land. Every person commits an offence against thisAct 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 expressauthority 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 anysuch 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 suchanimal, whether or not this results in capturing or killing any suchanimal:attempting to hunt or capture or kill any such animal while engaged inrecreational, commercial, or guided hunting or hunting to capture live wildanimals for export, farming, sale, breeding, exchange, public display,scientific, or other purposes:engaging in a wild animal recovery operationwild 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 ofthe Act is broad. It encompasses several different acts that do not necessarily fallcomfortably within the generally accepted meaning of those words. That there arealternative bases upon which the offence of unlawful hunting of a wild animal may beproven does not however detract from the obligation of the prosecution to fully andfairly inform the defendant of the substance of the charge proffered.[35] I have concluded the Judge was wrong to amend the charge and that amiscarriage of justice has occurred. I will nevertheless briefly respond to the furthergrounds advanced by Mr Andersen. First, I think it helpful to set out the relevanthistory of the charge and the events that gave rise to the amendment.[36] The original charge alleged Mr Powley, jointly with Mr A'Court andMr Holden, "did kill a wild animal namely a deer" without authority. Pretrial, thecharge was amended to substitute "hunt" for "kill". Although the charging documentdid not make express reference to s 66 of the Crimes Act 1961, it alleged party liabilityin describing Mr Powley as being charged jointly. No particulars were provided.[37] The original summary of facts (naming all three defendants) alleged the triohad 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 twoshots, killing the animal, and that Mr Powley and Mr A'Court "then walked up to thedead animal and began cutting it up". Notably, the allegation was that the deer wasshot on private land.[38] The charge against Mr Holden (the driver) was then withdrawn. Mr A'Courtentered a guilty plea. An amended summary of facts prepared for his sentencingrecorded that Mr A'Court had seen a deer grazing on the road, that he had then shotthe animal which had caused it to flee onto a nearby crop paddock, which was privateland. The summary recorded Mr A'Court then fired a second shot, killing the animalin the paddock. Mr A'Court and Mr Powley then exited the vehicle, entered thepaddock and cut up the dead animal. The Police case had shifted to an allegation thefirst shot was fired when the deer was on the road (not private land), but the secondshot was fired when the deer was on private land.[39] Mr Powley maintained his not guilty plea. In a case managementmemorandum, the defence position was summarised as follows:Denies that he was party to the unlawful act (the second shot) which resultedin the hunting being unlawful.[40] That position accords with the prosecution case as outlined in the summary offacts prepared for Mr A'Court's sentencing, that it was the second shot that was theunlawful 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 orkill" found in s 2 of the Wild Animal Control Act 1977.[42] The prosecutor provided no detail as to what other unlawful acts, beyond thesecond shot, were alleged to have fallen within the definition of to "hunt or kill". Therewas 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 aparty to hunting.[44] Mr Andersen's opening address at the conclusion of the prosecution case isrecorded as:Powley had no knowledge of it being shot – will call evidence.Def will say had no real knowledge of the circumstances, other will sayexactly 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 beingasked 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-examinationinitially advanced the Police theory that Mr Powley had been spotlighting forMr A'Court.15 That was denied by Mr Powley. The prosecutor then put to Mr Powleythat he had gone into the paddock to find the deer, cut it up, and bring it back to thevehicle. The last proposition put in cross-examination of Mr Powley, described by theprosecutor as most important for the charge, was that Mr Powley had gone into thepaddock to retrieve the deer.16 Notwithstanding that line of cross-examination andwhat I find was Mr Powley's general acknowledgment of that proposition, theprosecutor 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 thatMr Powley was liable for searching for the deer. I agree the prosecutor did changetack. But notably, the prosecutor made a decision, I consider deliberately, not to usethe word "searching" when cross-examining Mr Powley or the other defencewitnesses.[48] From that summary, I accept the prosecution case, as set out in the pretrialcharging document and the disclosed summaries of fact, was that Mr Powley wasinvolved in a joint enterprise hunting trip. It was alleged Mr Holden was driving thevehicle, Mr Powley was using a spotlight to find deer, and Mr A'Court was armed asthe shooter. Mr Powley was alleged to have been spotlighting to assist Mr A'Court tofire (at least) the second shot, at which point the deer was on private property. Thereis no doubt as to what the defence understood was the charge it was being asked toanswer. As the Judge recorded, the defence case was that Mr Powley did not knowthe deer had been shot (in the sense of being shot unlawfully while on the privateproperty) as he was asleep and that he was not a party to the hunting as his onlyinvolvement was holding the spotlight after the deer was shot. He had no knowledge15 At [7] above.16 At [9] above.of the unlawful hunting carried out by Mr A'Court and was, therefore, not guilty ofbeing a party to unlawful hunting.[49] In my view, it is clear that both before and during trial the defence focus wason 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 andshift the focus away from the shooting of the deer. As a consequence, Mr Powley'sknowledge of Mr A'Court's acts were no longer relevant. At issue in assessingwhether the amended charge was proven was whether Mr Powley had engaged insearching for (and taking possession of) the deer carcass on private property withoutauthority. 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 ina charging document under section 16(2)) may be amended by thecourt at any stage in a proceeding before the delivery of the verdict ordecision of the court.(2) The amendment may be made on the court's own motion or on theapplication of the prosecutor or the defendant.(3) A Registrar may, in respect of any offence other than a category 4offence, exercise the power under subsection (1) if the prosecutor andthe 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 amendedto substitute one offence for another offence only if—(a) there appears to be a variance between the proof and thecharge; 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'sopinion the defendant will not be or has not been misled or prejudicedin his or her defence by the amendment.(3) Subsection (4) applies if, in the court's opinion, the defendant hasbeen misled or prejudiced in his or her defence by any amendment ofa charge made during the trial under section 133.(4) If, in the court's opinion, the effect of the defendant having beenmisled or prejudiced might be removed by adjourning or postponingthe 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 isvariance between the proof and the charge.[53] A proposed amendment (either to the charge, including the particulars, or thesubstitution of an offence) might be considered an amendment as to form and notsubstance, such that it is not necessary to give counsel an opportunity to be heard asto whether the defendant is misled or prejudiced by the proposed amendment.Generally, however, a Judge considering amendment of a charge or offence shouldgive counsel an opportunity to be heard. A Judge should not assume a defendant isnot misled or prejudiced.[54] The Judge did not give Mr Powley's trial counsel an opportunity to be heardon 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 relianceon s 136. However, s 136 only applies if the amendment substitutes one offence foranother. Otherwise, amendment is guided by s 133. In this case, Mr Powley faced acharge under s 8(2) of the Act alleging unlawful hunting. The amendment did notsubstitute that offence. Rather, the basis of liability and the particulars of the offencewere amended. The offence remained one of unlawful hunting. In my view s 136 didnot apply.[56] Furthermore, a charge may not be amended under s 136 unless there appearsto be variance between the proof and the charge, and the amendment will make thecharge fit with the proof. The Judge did not refer to variance. Rather, the Judgeconsidered it appropriate to amend for "clarity". More particularly, the Judge was ofthe view that the defence had run a defence to a case that it was not being asked toanswer. That reasoning for the amendment supports my view the Judge did not relyon s 136.[57] The Judge resolved to amend the charge for clarity, given the different basesfor liability and amended the charge to allege "searching" for the deer because thatwas the theory emphasised by the prosecutor. The only reason there may have been alack of clarity was because the prosecutor sought to advance a case theory that was atodds 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 theoryemphasised by the prosecutor from part-way through the proceeding. A charge is notamenable 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 misleadinghas occurred. But variance was not raised or considered in this case. That there wasnot 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 rejectedMr 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. Inmy 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, soI 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 factualbasis for liability. The risk the defence would be prejudiced and misled by theproposed amendment required careful consideration.[60] The Judge did not consider the defence was prejudiced because in response tothe defence case management memorandum recording an understanding the secondshot was the alleged unlawful act, the prosecution gave notice it did not accept thesecond shot was the only unlawful act. Therefore, the Judge found, "[a]ttention wasclearly directed to the broader bases of liability".17[61] Mr Bates supports the findings of the Judge and submits there was no prejudiceto the defence for several reasons. The appellant had notice of the evidence to becalled, 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 "squarelybefore the Court", and because the defence had been attempting to meet a case thatwas not being advanced by the prosecution. Finally, he submits the factual basis forthe amendment was "supported" by evidence given by the appellant. Generally,Mr Bates submits that the evidence disclosed pre-trial and offered at trial, togetherwith the evidence given by the appellant at trial, must have made it apparent thatMr 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 misledand prejudiced.[62] It is a fundamental obligation of the prosecution to ensure the chargingdocument fully and fairly informs the defendant of the substance of the offencealleged. 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 informthe defendant of the substance of the offence that it is alleged that thedefendant has committed.[63] A defendant should need to go no further than the charging document in orderto understand the factual and legal basis of alleged criminal liability. In my view, theunamended charging document was clear and, although lacking particulars, informedMr Powley that he was alleged to have assisted the named co-offenders in hunting fora wild animal. That was the case initially advanced by the prosecution. Mr Powley17 At [12].was alleged to have assisted Mr A'Court by acting as a "spotter" when Mr A'Courtshot and killed the injured deer.[64] If, as suggested, the prosecution had, pre-trial, identified alternative bases ofliability, it was the responsibility and obligation of the prosecution to apply to amendthe charge to include the alternative bases. It is not enough to simply note in a casemanagement memorandum that there might be an unspecified alternative basis ofliability.[65] The prosecution then advanced the case in accordance with the chargingdocument and as advanced against Mr A'Court, alleging Mr Powley was guilty as aparty in relation to the second shot. It was only later in cross-examination, that theprosecutor 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 hewas not being asked to answer. The defence case was appropriately focussed on thecharge 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 liabilitythat fell outside the scope of the charging document. Mr Bates submits that the issueof guilt by virtue of "searching" was squarely before the Court. I disagree. To puthunting by searching "squarely before the Court" required the prosecution toincorporate that allegation within the charging documents.[67] The consequence in this case is that Mr Powley elected to give and callevidence, answering the case as alleged in the charging document, only to face a quitedistinct Police case theory in cross-examination.[68] A feature of the cases relied on by Mr Bates is that the defence advanced attrial necessarily addressed the substituted offence. In Johnson v Police, Clark J foundthat defence counsel had adduced evidence in the course of the trial which spoke tothe 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 ofa protection order by following the complainant. The charge was amended to18 Johnson v Police, above n 13.breaching a protection order by inflicting psychological abuse. Clark J found thevictim's state of mind was "if not centre-stage during the trial, at least a focal point".19A protection order was in place and deliberately breached three times in one day. Thepossible amendment should have been clear to counsel.[69] In R v Lewis, the defendant was facing charges of sexual violation.20 Thosecharges were amended and substituted by a charge of sexual contact with a youngperson, following trial and after the Judge reserved his decision. The defence at trialwas one of denial of any sexual contact. In considering prejudice to the defendant inamending the charges, Brewer J said:[40] I do not find that amending the charges would mean Mr Lewis wasmisled or prejudiced in his defence:(a) The charges were sexual violation. I propose to substitutelesser charges.(b) The trial tactic adopted by Mr Dacre was aimed at an endresult of insufficiency of evidence on the element ofpenetration. The tactic succeeded.(c) The overall defence was a complete denial that any sexualcontact occurred. Mr Lewis gave evidence to that effect. Thisis not a case where it can be claimed that if the serious chargeshad not been brought the defendant would have givenevidence in a bid to inject doubt on the lesser charges becausethe cross-examination risk was less.(d) It might be that if Mr Lewis had faced from the beginningonly the lesser charges then a more aggressive defence mighthave been mounted. But, in this case, the defence was notacceptance of some sexual contact but a denial of sexualviolation. The defence was a total denial of contact. I do notsee prejudice in this case which is material to the decision Ihave to make.[70] In any case in which amendment is proposed, great care must be exercised toensure the defence will not be prejudiced. It is well established that a defendant maybe prejudiced by an amendment if counsel has prepared and presented the case inaccordance with a theory of the case which is no longer appropriate, and counselcannot recast the case to meet the new charge(s).2119 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 firedand, therefore, did not have knowledge of the actions of his co-defendant. It was thedefence case that his acts in going onto the private property to locate and retrieve thecarcass of the deer were acts that took place after the alleged offence, namely theshooting of the deer. Knowledge was the central issue.[72] The amendment removed the obligation on the prosecution to prove partyliability. Consequently, knowledge was a non-issue. That was the critical issue whichwas the focus of the defence case. Mr Powley conducted his defence understandinghe was alleged to have been a party to the second shot fired by Mr A'Court. He wasnot 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 amendmentwas 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 thatthe case was to be advanced and determined on an alternative basis. In my view, thedefence 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 adifferent basis of liability on the grounds the defence should have known that it mightbe asked to answer a different case in circumstances where the issue of alternativebases for liability has been raised but not the subject of amendment pre-trial. In thiscase, the prosecution, whilst committing to a case theory of party liability within thecharging document, had in mind alternative bases of factual and legal liability, andwas permitted to wait and prefer a particular theory of its case after the defence hadelected to give and call evidence. In my view, that process effectively negates the onusof proof and permits the original charging document to be no more than a holdingdocument pending a form of enquiry. Any lack of clarity or misunderstanding onbehalf of the defence was, in my view, a consequence of the prosecution's failure tomeet its obligations under the CPA. It was not appropriate for the Judge to amend thecharge in those circumstances. The defence was both prejudiced and misled. Amiscarriage 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 amendmentto be made "before the delivery of the verdict or decision of the Court" and does notpermit 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 Courtto amend an information includes the power to amend after the evidence is concludedand during the course of the Judge giving consideration to a reserved decision.22 Inupholding the Judge's decision to amend, the Court of Appeal observed that it wouldbe "odd" if a charge for which a conviction had been entered could be amended onappeal but could not be amended when the Judge is considering whether to enter aconviction.23[77] Though the Court in Jones was dealing with a since repealed provision of theSummary Proceedings Act, the Criminal Procedure Act 2011 preserves the power ofthe Court on appeal to enter a conviction for a different offence from the offence ofwhich the appellant was found guilty at trial.24[78] Although s 133 refers to amendment being made at any time before the verdictof the delivery of the decision, and s 136 to the substitution of an offence during thetrial, 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 decisionhas been reserved. The error in this case was the failure of the Judge to amend withoutgiving 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 GivenFarm to search for a deer". Mr Andersen submits that the act of searching for a deerdoes not fall within the definition of "hunt or kill" and that the amended charge doesnot 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 thegrounds the Judge was wrong to amend the charge, it is not necessary that I resolvethe statutory interpretation question. I observe, however, that the definition of "huntor 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 anysuch animal by any means:(emphasis added)[84] Mr Andersen submits it would only be an offence of unlawful hunting of a wildanimal 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 "andalso 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 beat odds with not only the ordinary meaning of those words, but with a purposive andtextual interpretation of the Act.26[86] I prefer Mr Bates' submission and would not have found the amended chargewas defective. On any view, the interpretation section is poorly drafted and requiresreform.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 didnot permit a finding that Mr Powley had engaged in searching for the carcass. I donot 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 evidencepermitted 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 bedoing 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 forthe deer. If the amendment was lawful, the Judge did not err in finding the chargeproven.Result[90] The appeal is allowed. The conviction is quashed. Given the lower-levelnature of the charge and that the "shooter" has pleaded guilty to a charge of unlawfulhunting, I do not consider the interests of justice require a retrial....................................................Eaton JSolicitors:RPB Law, DunedinCopy to:Leonard Andersen KC, Barrister, DunedinSavanna Gaskell, Barrister, Dunedin