A South Otago farmer has had his poaching conviction lifted after a judge unfairly intervened in his trial.
Martin Sinclair Powley’s near 18-month legal battle ended in the High Court at Dunedin with the recent release of Justice Jonathan Eaton’s appeal judgement.
He ruled Judge David Robinson’s decision to change the specifics of the charge at the end of the December trial resulted in a miscarriage of justice.
On April 3 last year, Powley hosted 20 friends taking part in an event organised by the Gore Town & Country Trap Shooting Club.
Later, he set out for a "cruise" with Michael A’Court, 41, and Tony Holden, 57, around the local back roads.
They had a firearm, ammunition, knives and spotlights but Powley was adamant it was not a hunting trip.
He told the court he fell asleep in the back of the vehicle during the journey.
The court heard A’Court saw a deer at the side of Puerua Valley Rd. They checked there was no-one around and shot it, wounding the animal.
He said he shot it again when it was on private land to ensure minimal suffering.
Powley said he was then awoken, given a spotlight and helped his mate retrieve the carcass.
However, the commotion had caught the attention of landowner Christopher Given who directed his partner to call the police.
Three officers — one armed with a Glock pistol the others with Bushmaster rifles — found Powley and A’Court, along with the deer in several pieces.
Powley was originally charged as a party to the offence of unlawful hunting meaning police had to prove he had knowledge of the poaching.
The defence case, run by counsel Len Andersen KC, was based around the premise his client was asleep and therefore could not have known the deer had been unlawfully shot on private property.
Once all the evidence had been called, Judge Robinson amended the charge of unlawful hunting to include "entering on to Given Farm to search for a deer".
Justice Eaton said that was an error.
"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.
"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."
Justice Eaton was also critical of Judge Robinson’s decision not to allow the defence a chance to be heard on the change.
He quashed Powley’s conviction and $2000 fine and, given the "lower-level nature of the charge", as well as the fact A’Court had pleaded guilty to the offence, ruled no retrial was necessary.
A’Court was previously fined $2250. A charge against Holden was withdrawn.
rob.kidd@odt.co.nz , Court reporter
