Dempsey v Police
[2023] NZHC 486
•14 March 2023
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2022-419-000080
[2023] NZHC 486
BETWEEN LESLIE TERRENCE DEMPSEY
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 23 February 2023 Counsel:
SD Taylor for Appellant DL Young for Respondent
Judgment:
14 March 2023
JUDGMENT OF DOWNS J
This judgment was delivered by me on Tuesday, 14 March 2023 at 11 am.
Registrar/Deputy Registrar
Solicitors/Counsel:
Crown Solicitor, Hamilton. SD Taylor, Hamilton.
DEMPSEY v POLICE [2023] NZHC 486 [14 March 2023]
The appeal
[1] Leslie Dempsey was found guilty of offences of assault with intent to injure1 and driving while forbidden.2 He was found not guilty of a related charge of wilful damage.3 Mr Dempsey appeals conviction. His primary complaint concerns the Judge’s treatment of alibi evidence.
Background
[2]The offending occurred on the evening of 6 October 2021.
[3] Damien Picknell, the complainant, had arranged to fight another young man. That young man was a friend of Mr Dempsey’s son. Mr Picknell went to a school to look for his opponent, whom he could not find. He noticed three figures running on the fields. He ran after them, then returned to his car.
[4] While Mr Picknell was by his car, another car swerved towards him. That car hit the driver’s side. Mr Picknell suffered injuries to his leg. He identified Mr Dempsey as the driver of that car, saying he was 100 percent sure it was him. Mr Picknell said Mr Dempsey then took a baton to Mr Picknell’s car, damaging the windows.
[5] Mr Picknell had borrowed his grandmother’s car, a red Mazda. For convenience, I continue to refer to the car as Mr Picknell’s.
The case in the District Court
[6] Judge S R Clark heard evidence from three prosecution witnesses: Mr Picknell; Sandra Taylor, Mr Picknell’s grandmother; and Constable Dwayne Crabb, the Police officer in charge of the case.
1 Crimes Act 1961, s 193.
2 Land Transport Act 1998, s 52(1)(c).
3 Police v Dempsey [2022] NZDC 23941. Mr Dempsey was sentenced to nine months’ supervision in relation to the violence charge and discharged in relation to the driving charge: Police v Dempsey [2022] NZDC 24003.
[7] Mr Picknell’s evidence requires little elaboration at this stage beyond that he said: (a) he had known Mr Dempsey for four years; (b) Mr Dempsey was driving a white Honda with a number plate beginning “FFS”; and (c) Mr Dempsey referred to his son during the incident, telling Mr Picknell to leave him alone.
[8] Constable Crabb spoke to Mr Dempsey the next day. Mr Dempsey said he was home the previous evening and did not have any knowledge of the incident. Constable Crabb noticed a white Honda at the address with minor damage. Its number plate began “FFS”. Constable Crabb said a female moved the car down the driveway.
[9] Ms Taylor, Mr Picknell’s grandmother, said the red Mazda was undamaged before the incident.
[10] Andrea Liddington, Mr Dempsey’s partner of 14 years, gave alibi evidence on behalf of Mr Dempsey. Ms Liddington said she, Mr Dempsey, his son, and some friends of his son, had dinner together that night. Mr Dempsey was home the entire evening; they watched a movie and went to sleep. However, Mr Dempsey’s son and friends went out after dinner.
[11] Ms Liddington said the white Honda was hers and in moving it when Police arrived, she “wasn’t trying to run away or anything”. Rather, she was moving it “for the kids”.
[12]Mr Dempsey did not testify.
[13] Judge Clark expressed scepticism about Ms Liddington’s evidence and considered this a rare occasion in which a defendant’s election not to give evidence warranted adverse comment.
[14] The Judge acknowledged inconsistences in Mr Picknell’s evidence but considered the violence and driving charges established beyond reasonable doubt. The Judge had a different view about the wilful damage charge, as Mr Picknell had not told Police Mr Dempsey attacked his car with a baton.
Principle
[15] Under s 232(2)(b) of the Criminal Procedure Act 2011, an appeal Court must allow an appeal if the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred. A miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
[16] An appellate Court is entitled to come to a different view of the evidence to the trial Court.4 The onus is on an appellant to show an error has been made.5 Challenges to credibility findings based on contested oral evidence attract “customary caution” in recognition of the advantages trials Courts enjoy in this context.6
The appeal
[17] Mr Dempsey argues the Judge erred in his assessment of the evidence to the extent a miscarriage occurred. On his behalf, Mr Taylor advances a number of alleged errors, foremost of which is the Judge’s treatment of the alibi evidence.
Analysis
[18] As will be apparent, two competing versions were given at trial. Mr Picknell said Mr Dempsey drove a white Honda at him, injuring his legs and damaging the car; got out of the Honda; and then using a baton, broke some of his car’s windows. Ms Liddington said Mr Dempsey was with her the whole evening. Plainly, both cannot be correct. Materially, the prosecution had to exclude, to the criminal standard, the possibility Mr Dempsey was at home as Ms Liddington claimed.
4 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575.
5 Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [8].
6 Sena v Police, above n 4, at [38]–[40].
[19]The Judge said he was “sceptical” of Ms Liddington’s evidence:7
The evidence in relation to the alibi comes from his partner. I am sceptical about that evidence. She of course was Mr Dempsey’s partner at the time and the mother of one of the young boys DJ involved in this incident. She in answer to questions from the police has conceded that she has made a statement in June of this year talking about the incident being some time ago and yet today she is able to recall with precision who was home, when people left, what she and the defendant were doing, what they were eating.
I was a little bit sceptical about what happened when the police arrived. She (Ms Liddington) was driving down the driveway, I have not heard evidence to say that she left but she did not answer a question of clarification saying that she could not drive away because the police were there. In those circumstances I am sceptical about the alibi evidence that she has given.
[20] Mr Taylor contends this treatment does not amount to exclusion of the alibi evidence beyond reasonable doubt and the Judge should, therefore, have dismissed the charges.
[21] I accept the Judge’s use of the term “sceptical” was infelicitous because this would ordinarily imply doubt about the evidence, which, obviously, was not synonymous with the evidence’s disproof beyond reasonable doubt. Therein lies Mr Taylor’s argument. However, once the judgment is read as a whole—the approach required of any impugned decision—it is clear the Judge did reject the alibi evidence and find the charges proved to the required standard.
[22]First, the Judge said this before the impugned observations:8
I just want to talk briefly about alibi evidence. The mere fact that alibi evidence has been called does not change the onus of proof and a verdict of guilty is only appropriate if I am satisfied that Mr Dempsey was where the police claim he was on the evening in question. I remind myself that I should not conclude that he is guilty even if I reject the alibi evidence. I remind myself it is for the police to rebut the alibi defence and that if I reject the alibi evidence it does not automatically follow that Mr Dempsey is guilty.
These remarks demonstrate the Judge’s appreciation of the burden and standard of proof in this context; more particularly, of the need for the alibi evidence to be disproved beyond reasonable doubt.
7 Police v Dempsey [2022] NZDC 23941 at [18]–[19].
8 At [13].
[23]Second, the Judge said this after the impugned observations:9
Having said that I must remind myself that I still must assess the evidence that the police have led. The rejection of any alibi evidence does not add to the case against Mr Dempsey. I have to examine what the police say in relation to the three charges.
As I have said the primary police witness is not the only evidence. The primary police evidence comes from Mr Picknell. He has given evidence that the car that swerved towards him and struck the car belonging to his grandmother was a white car with a Honda badge, licence plate FFS. Mrs Liddington confirms that she owns a white Honda with a licence plate commencing FFS which can be seen in the photograph booklet at photograph 7.
More to the point Mr Picknell says that he recognised that Mr Dempsey or to use his words: “Les was the driver.” He said that he saw Les fighting to get out of the driver’s window after the impact.
Mr Picknell says that he said or to use his words: “Screamed” words to the effect of: “Why are you here? It’s got nothing to do with your son.” I infer from that he has clearly recognised Mr Dempsey and that Mr Dempsey said to him: “I’ve told you to leave my son alone.”
This is not a situation in which they are strangers to each other, that is Mr Picknell and Mr Dempsey. Mr Picknell says he has known the defendant for about four years since late 2017 and that he was 100 per cent sure it was Mr Dempsey who was the driver.
…
Having said that, although there were some inconsistencies established Mr Picknell at the end of the day did not waver from the proposition that he knows the defendant Mr Dempsey, that it was him who was the driver, that it was him who got out of the car, that it was him who he spoke to.
[24] The Judge’s reference to “the rejection of the alibi evidence”, and to this factor not adding to the prosecution’s case, imply the Judge rejected the alibi evidence. So too the Judge’s subsequent analysis of the prosecution’s evidence, which his Honour clearly accepted.
[25] Mr Taylor is also critical of the Judge’s remarks about the absence of evidence from Mr Dempsey. The Judge said this:10
Before I comment further on that I think this one of those situations, albeit rare, that I am entitled to comment on the fact that Mr Dempsey could have given evidence to support the explanations suggesting that he was not there,
9 Police v Dempsey, above n 7, at [20]–[24] and [27].
10 At [17].
but he did not do so. It is he who is saying he was not there, and he is content to rely on the alibi evidence of his partner. I do not know why he has not given evidence. He does not have to, but he has put forward a positive defence that he was not there and then has not commented further.
[26] Mr Taylor contends this constitutes improper comment on the defendant’s right to silence at trial, as affirmed by s 33 of the Evidence Act 2006:
33 Restrictions on comment on defendant’s right of silence at trial
In a criminal proceeding, no person other than the defendant or the defendant’s counsel or the Judge may comment on the fact that the defendant did not give evidence at his or her trial.
[27] Section 33 does not preclude a Judge from drawing an adverse inference in relation to a defendant’s election not to testify, a point affirmed recently by the Court of Appeal in Honk Barges Ltd v R:11
It would have been open for the Judge to record that [the defendant] did not give evidence and that no representative from either of the defendant companies gave evidence. She would have had to warn herself not to reason that, because no evidence was given by any of the defendants, they or any one of them was therefore guilty. Nevertheless, in the circumstances of this case, the absence of defence evidence could have been taken into account by the Judge when she was considering whether to accept all or part of the submissions advanced on behalf of [the defendants].
[28] What a Judge may not do is conclude a defendant is guilty because they did not testify, which would be a plain violation of 25(d) of the New Zealand Bill of Rights Act 1990. There can be no suggestion the Judge did so in this case. The only issue then is whether the Judge’s adverse inference, assuming he actually drew one, was justified.
[29] The inference to be drawn from a defendant’s silence depends (a) upon the circumstances of the particular case; and (b) is an issue decided according to notions of common sense.12 This case permitted an adverse inference. Mr Dempsey was in the best position to know where he was that evening; but chose not to testify.
11 Honk Barges Ltd v R [2019] NZCA 157 at [137].
12 R v Gunthorp [2003] 2 NZLR 433 (CA) at [142]; and Honk Barges Ltd v R, above n 11, at [133]-[140].
[30] This leaves one aspect in relation to the alibi evidence. Mr Taylor submits the Judge took irrelevant matters into account in the assessment of the alibi evidence, namely Ms Liddington’s movement of the car and her relationship with Mr Dempsey. There is nothing in this point. Ms Liddington’s 14-year relationship with the defendant was an obvious, legitimate consideration attaching to her credibility. So too her movement of the car. That Ms Liddington offered an innocuous explanation for doing so did not mean the Judge had to accept the explanation.
[31] Mr Taylor’s final argument concerns Mr Picknell’s evidence. Mr Taylor observes Mr Picknell’s evidence contained inconsistencies, a point the Judge recognised:13
Having said that, although there were some inconsistencies established Mr Picknell at the end of the day did not waver from the proposition that he knows the defendant Mr Dempsey, that it was him who was the driver, that it was him who got out of the car, that it was him who he spoke to.
…
In relation to the other two matters, that is the charge of assault with intent to injure, and the charge of driving whilst forbidden as the case has been run clearly the issue here is whether or not it was Mr Dempsey who was the driver of the car in question, and I have said a few months ago I rely upon and am persuaded by the evidence of Mr Picknell on that point.
[32] Mr Taylor argues the inconsistencies were such the Judge was obliged to acquit Mr Dempsey. For example, Mr Picknell did not tell Police Mr Dempsey attacked the car with a baton, and Mr Picknell’s account to his grandmother immediately after the incident did not marry his testimony.
[33] Like the Judge, I do not accept the inconsistencies in Mr Picknell’s evidence meant all his evidence was unreliable. First, many of the inconsistencies are minor, for example, Mr Picknell said the offender’s car had blue headlights whereas the headlights on Ms Liddington’s car’s headlights were yellow. Second, inconsistencies between Mr Picknell’s evidence and his earlier statements to Police and grandmother could well be explained be trauma; most people do not give a picture-perfect account in the wake of violence, anticipated or otherwise. Third, the alleged inconsistences between Mr Picknell’s injuries and his estimation of the speed of the car could equally
13 Police v Dempsey, above n 7, at [27] and [29].
reflect the nature of the incident. The obvious also bears stating: Mr Picknell’s car was not damaged before the incident, a point confirmed by Ms Taylor. Fourth, Mr Picknell’s evidence was clear and coherent in so far as he identified Mr Dempsey as his attacker, and his description of the white Honda and number plate accords Mr Dempsey’s use of the car that evening. Mr Picknell’s observation that Mr Dempsey referred to his son also tended to confirm the accuracy of Mr Picknell’s account. It follows it was open to the Judge to rely on Mr Picknell’s evidence in finding the charge proved beyond reasonable doubt.
[34] For completeness, the Judge’s dismissal of the wilful damage charge does not undermine this analysis. Mr Picknell identified Mr Dempsey as the driver as he was “fighting to get out of the driver’s window”, that is, before Mr Dempsey allegedly used a baton to strike Mr Picknell’s car. Furthermore, even if the Judge utilised the evidence underlying the wilful damage charge as an aspect of the prosecution case, that would not be improper. The law recognises a distinction between proof of a charge to the standard of beyond reasonable doubt and the level of proof attaching to individual items of evidence.14
[35]It follows the Judge did not err, and justice has not miscarried.
Result
[36]The appeal is dismissed.
……………………………..
Downs J
14 R v Guo [2009] NZCA 612.
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