Dempsey v Police - [2023] NZHC 486

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dempsey v Police

Details

AGLC: Dempsey v Police [2023] NZHC 486
Case: [2023] NZHC 486
Decision Date: 14 March 2023

CaseChat Overview and Summary

Leslie Dempsey was found guilty of assaulting Damien Picknell with intent to injure and of driving while forbidden. Dempsey appealed the decision, arguing that the trial judge erred in their assessment of the alibi evidence provided by his partner, Andrea Liddington. The High Court of New Zealand considered whether the trial judge's treatment of the alibi evidence amounted to a miscarriage of justice. The Court found that the trial judge did reject the alibi evidence and found Dempsey guilty beyond reasonable doubt. The Court held that the trial judge's use of the term "sceptical" was infelicitous, but their overall judgment demonstrated an understanding of the burden and standard of proof required to disprove the alibi evidence. The Court also found that the trial judge's adverse inference regarding Dempsey's silence was justified and that the inconsistencies in Picknell's evidence did not undermine the reliability of his testimony. The appeal was dismissed, and Dempsey's convictions were upheld.

In Dempsey v Police, the appellant, Leslie Dempsey, sought to appeal his convictions for assault with intent to injure and driving while forbidden. Dempsey's primary argument was that the trial judge erred in their assessment of the alibi evidence provided by his partner, Andrea Liddington. The High Court of New Zealand found that the trial judge did reject the alibi evidence and found Dempsey guilty beyond reasonable doubt. The Court held that the trial judge's use of the term "sceptical" was infelicitous, but their overall judgment demonstrated an understanding of the burden and standard of proof required to disprove the alibi evidence. The Court also found that the trial judge's adverse inference regarding Dempsey's silence was justified and that the inconsistencies in Picknell's evidence did not undermine the reliability of his testimony. The appeal was dismissed, and Dempsey's convictions were upheld.

Orders