Powle v R [2017] NZCA 96 (29 March 2017)

Last Updated: 11 April 2017

IN THE COURT OF APPEAL OF NEW ZEALAND
CA565/2016 [2017] NZCA 96
BETWEEN	ANTOINETTE HAYLEY POWLE Appellant
AND	THE QUEEN Respondent

Hearing:	16 March 2017
Court:	Cooper, Woodhouse and Collins JJ
Counsel:	P K Hamlin for Appellant K S Grau for Respondent
Judgment:	29 March 2017 at 4 pm

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

[1] On 19 September 2016 Ms Powle was convicted of attempting to pervert the course of justice^[1] and 10 related drugs offences charges — ranging from supplying methamphetamine^[2] to selling BZP^[3] — following a trial by jury conducted in the District Court at Manukau before Judge McAuslan. Ms Powle was sentenced to four years’ imprisonment on the methamphetamine charges, 18 months’ imprisonment on the BZP charges and 15 months’ imprisonment in relation to the attempting to pervert the course of justice charge.^[4] Ms Powle appeals only her conviction for attempting to pervert the course of justice. She also appeals her sentence on the basis that it is manifestly excessive if her appeal against conviction is allowed, but this was not the subject of submissions before us.

Background

[2] On 17 October 2013 the police executed a search warrant at the home of Ms Powle and her partner Mr Abernethy. The police found a first aid kit inside a rubbish bin containing drug-related items including ziplock bags containing methamphetamine, scales, BZP pills and notes that were consistent with records of supplying drugs (a tick list). The handwriting on the tick list was consistent with Ms Powle’s handwriting. The police then examined data from cellphones located at the address and found evidence of methamphetamine dealing and two sales of BZP. Ms Powle and Mr Abernethy pleaded not guilty. Mr Abernethy was remanded in custody. Ms Powle was granted bail.
[3] Mr Abernethy applied for bail. His bail application was to be heard on 19 December 2013. On 17 December 2013 Mr Evans, an employee of Mr Abernethy and Ms Powle, signed an affidavit in support of Mr Abernethy’s bail application. Mr Evans claimed that the drugs and related items in the first aid kit belonged to him.
[4] The police investigated the contents of Mr Evans’ affidavit and the circumstances in which it was made. They concluded the affidavit was untruthful. This led to Mr Evans, Mr Abernethy and Ms Powle being jointly charged with attempting to pervert the course of justice. Mr Evans pleaded guilty to that charge. The evidence of Mr Evans’ conviction was ruled admissible in the trial of Mr Abernethy and Ms Powle.^[5]
[5] The evidence against Ms Powle and Mr Abernethy included the contents of intercepted telephone conversations, which disclosed the couple discussing getting someone to take the blame for the drugs and contents of the first aid kit. In a conversation on 27 October 2013 Ms Powle and Mr Abernethy talked about a “stool pigeon” who they were “gonna get” and how much it might cost. On 22 November 2013 the couple talked about getting Mr Evans “to put his hand up”. The discussions between Mr Abernethy and Ms Powle about getting Mr Evans involved continued on 24 November 2013 when Ms Powle talked about Mr Evans going to his lawyer, Mr Tait, and Mr Abernethy saying it was “10 grand”. On 5 December 2013 Ms Powle said in a conversation with Mr Abernethy that she had spoken to Mr Tait and had sent to him the summary of facts so he could “march [Mr Evans] into the police station”.
[6] The Crown also relied on a number of text messages between Ms Powle and Mr Evans, including a text message from Mr Evans to Ms Powle on 22 November 2013 in which he talked about a debt he owed being taken out of the “confession payment”.
[7] Mr Evans was a witness at the trial. He said Mr Abernethy and Ms Powle had nothing to do with the affidavit and that he knew it was to be used for Mr Abernethy’s bail application. He acknowledged pleading guilty to perverting the course of justice and to a charge of supplying methamphetamine. Mr Evans declined to answer any questions about the first aid kit found in the rubbish bin.
[8] Ms Powle also gave evidence. She acknowledged that she had lent Mr Evans money to pay for Mr Tait. Ms Powle maintained Mr Evans owned the drugs and items found in the first aid kit. She acknowledged, however, she had passed on messages to Mr Tait and sent him the summary of facts. Ms Powle denied paying Mr Evans to make a false affidavit.
[9] In summing up, Judge McAuslan instructed the jury:

[27] Now the questions then are different for attempting to pervert the course of justice. The first one is, “Are you sure Ms Powle caused an affidavit with false information to be submitted to the Manukau District Court?” Only if you answer that question “Yes” do you have to go on to the second one which is, “Are you sure by doing that Ms Powle intended to adversely influence the capacity of the Court to do justice?”

[28] Now this charge is aimed at wilful deliberate conduct intended to secure a wrong or unjust result in legal proceedings. The Crown says to you that here this is offering Mr Evans money to swear an affidavit saying the drugs were his; this is the “stool pigeon” conversations we heard so much about, so Joshua Evans is to say they were his, all his and therefore Mr Abernethy would be considered innocent and his bail application would have more prospect of success, that’s what the Crown says, she is intending to influence the Court into releasing Mr Abernethy then by submitting false information in that the drugs were Joshua Evans’ and nothing to do with Mr Abernethy, nor indeed her. If you find that Ms Powle’s conduct led to the creation of that false affidavit and she intended by that to affect the course of Mr Abernethy’s bail hearing that is sufficient; remembering that the Crown is saying to you that only she and Mr Abernethy is to gain anything by the creation of that affidavit and even on the face of it it’s apparent that Mr Evans knew the jeopardy that he was in, and indeed proved to be the case, by swearing that.

[29] The defence of course is denial. More than that Ms Powle has told you she does not accept that it was a false affidavit; in her evidence before you she claimed to believe that even now that its contents were true and that the drugs were Joshua Evans’. The discussions about money relied on so heavily by the Crown as far as this count is concerned were because they were contemplating offering Frances some money to provide information about JT who apparently they believed at the time to be responsible for the drugs in the first aid kit; it was only later that Ms Powle, she told you, learnt in fact that it was all because of Joshua Evans. Well these are matters entirely for you Mr Foreperson and members of the jury.

[10] The question trail for the charge of attempting to pervert the course of justice asked two questions:

1. Are you sure that Ms Powle caused an affidavit with false information to be submitted to the Manukau District Court?

If “no”, find Ms Powle “not guilty”.

If “yes”, go to question 2.

2. Are you sure that Ms Powle intended to adversely influence the capacity of the Court to do justice?

If “no”, find Ms Powle “not guilty”.

If “yes”, find Ms Powle “guilty”.

Grounds of appeal

[11] The gravamen of the appeal is that a miscarriage of justice occurred because Judge McAuslan’s directions were defective in relation to the issue of Ms Powle’s knowledge and whether she caused the affidavit with false information to be submitted to the District Court at Manukau.
[12] Mr Hamlin, counsel for Ms Powle, explained the grounds of appeal in the following way:

22. [Ms Powle’s] conviction for attempting to pervert the course of justice was a miscarriage of justice because the Judge’s directions were defective in relation to knowledge and causation:

a. The first question in the question trail given to the jury asked, “Are you sure that Ms Powle caused an affidavit with false information to be submitted to the Manukau District Court?”

b. The Judge did not explain that, for the appellant’s conduct to be immediately or proximately connected with the intended object there must be a continuous chain of causation, and that the chain can be broken by an intervening act.

c. The Judge did not adequately summarise the defence case, in particular the fact that Mr Evans had received independent legal advice before swearing the affidavit, and that this fact was material to the question of causation.

Relevant law

[13] The appeal relies on s 232(2)(c) of the Criminal Procedure Act 2011. It is said a miscarriage of justice has arisen because Judge McAuslan’s summing-up in relation to the charge of attempting to pervert the course of justice contained errors that created a “real risk that the outcome of the trial was affected”.^[6]
[14] The charge of attempting to pervert the course of justice in s 117(e) of the Crimes Act 1961 requires the Crown to prove the defendant has wilfully attempted to pervert the course of justice in New Zealand. As this Court explained in R v Meyrick:^[7]

[41] It is clear that despite the use of the word “attempts” in s 117(e), the section creates a substantive offence which requires proof of both an action which has the tendency to pervert the course of justice (the actus reus) and an intention to pervert the course of justice (the mens rea) ... .

Analysis

[15] Mr Hamlin’s submission was predicated on the argument that Mr Tait’s role in preparing the affidavit sworn by Mr Evans broke the chain of causation between Ms Powle’s conduct and the filing of the false affidavit in the District Court. We disagree.
[16] The offence of attempting to pervert the course of justice occurs when a defendant intentionally takes steps to affect the outcome of a case.
[17] There was ample evidence of Ms Powle taking a number of steps to arrange for Mr Evans to swear an affidavit in which he falsely claimed responsibility for the drugs and items found in the first aid kit at the property occupied by Ms Powle and Mr Abernethy. Those actions included communicating with Mr Evans about making the affidavit, supplying information to Mr Tait to assist with the preparation of the affidavit and providing money for Mr Tait’s fees.
[18] There was also considerable evidence to support the Crown’s claim about Ms Powle’s intentions. That evidence demonstrated Ms Powle and Mr Abernethy wanted Mr Evans to claim ownership of the items found in the first aid kit in order to advance the prospects of Mr Abernethy being granted bail. The conversations between Ms Powle and Mr Abernethy and the text messages between Ms Powle and Mr Evans provided a strong evidential foundation for the Crown’s submission at trial that all three were trying to influence the outcome of Mr Abernethy’s bail application.
[19] The fact the false affidavit was prepared by Mr Tait and filed in the District Court by someone other than Ms Powle does not deflect from the fact that Ms Powle took a number of crucial steps in arranging for Mr Evans to swear a false affidavit knowing that it was to be used in support of Mr Abernethy’s bail application. Mr Tait’s role was a part of the chain between Ms Powle and the filing of the affidavit in the District Court. It was not an intervening act but part of the plan devised by Ms Powle and Mr Abernethy to attempt to pervert the outcome of Mr Abernethy’s bail application. Mr Hamlin did not suggest that Mr Tait was himself aware the affidavit was false.
[20] In our assessment Judge McAuslan adequately covered both the actus reus and mens rea elements of the offence in her directions to the jury. Ms Powle’s actions were immediately connected with the intended object, namely the perversion of the course of justice. It was not necessary for the trial Judge to canvas the untenable argument that Mr Tait’s actions absolved Ms Powle from responsibility in the circumstances of this case.
[21] The appeal against conviction is dismissed. It follows that Ms Powle’s sentence appeal, which was premised on a successful appeal against conviction, is also dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Crimes Act 1961, s 117(e), which carries a maximum penalty of seven years’ imprisonment.

^[2] Misuse of Drugs Act 1975, s 6(1)(c), which carries a maximum penalty of life imprisonment.

^[3] Section 6(1)(e), which carries a maximum penalty of eight years’ imprisonment.

^[4] R v Powle [2016] NZDC 20936.

^[5] R v Powle DC Manukau CRI-2013-092-11416, 8 December 2015.

^[6] Criminal Procedure Act 2011, s 232(4)(a).

^[7] R v Meyrick CA513/04, 14 June 2005.