Denney v R - [2017] NZCA 80

IN THE COURT OF APPEAL OF NEW ZEALAND

CA492/2016
[2017] NZCA 80

BETWEEN	MICHAEL JOHN DENNEY Appellant
AND	THE QUEEN Respondent

Hearing:	7 March 2017
Court:	Winkelmann, Woodhouse and Collins JJ
Counsel:	J F Pereira for Appellant A J Ewing for Respondent
Judgment:	27 March 2017 at 10.30 am

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

Mr Denney was charged with intentionally causing grievous bodily harm by using his vehicle to run over Mr Blain. He was convicted of this offence following a jury trial in the District Court at Manukau before Judge Bergseng. Mr Denney was sentenced by Judge Bergseng to four years and nine months’ imprisonment.[1] He has appealed his conviction and sentence.

Background

[1]R v Denney [2016] NZDC 18102 at [30].

On the evening of Saturday 26 July 2014 Mr Denney and Mr Blain were at a friend’s party at Vetori Place in Clover Park, Auckland. An argument developed between Mr Denney, Mr Blain and their host after which Mr Denney left the address and was seen to get into his dark-blue Suzuki Samurai, which is a two-door, four‑wheel-drive vehicle similar to a small jeep. As Mr Denney reversed his vehicle onto Vetori Place, Mr Blain ran alongside the vehicle banging on the driver’s window with his fist. Mr Denney’s vehicle was seen to drive off and turn from Vetori Place into Israel Avenue with Mr Blain still running after it.
Ms Lepale, who lived in Israel Avenue, heard arguing and looked from her window where she saw a person walking down Israel Avenue. A few moments later she observed a dark-coloured, two-door vehicle similar to a jeep reverse down Israel Avenue. She said the driver of the vehicle was looking over his shoulder in the direction of where the vehicle was reversing. Ms Lepale heard a loud bang, after which she could no longer see the pedestrian. Ms Lepale then heard the driver of the vehicle say “you deserve it”. The vehicle then drove away.
A few minutes later, others who were at the party went to Israel Avenue looking for Mr Blain. They found him lying on the road. Mr Blain suffered multiple facial fractures, a moderate concussion, a scalp laceration, a fracture to his right collar bone and a fracture to a portion of his second cervical vertebra. Mr Blain spent eight days in hospital and he was unable to work for six months.
Constable Kinniburgh was one of the police officers who examined the scene of the incident. He measured what he thought were fresh tyre marks created by mud from tyres and which led to the likely point of impact. The Constable said one muddy tyre mark was 18.5 centimetres wide. Constable Kinniburgh also measured the distance between the tyre marks and took photos of the tread marks in the mud imprint.
On 30 July 2014 Detective Ralph arrested Mr Denney at his place of work.…

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 Denney v R

Details

AGLC: Denney v R [2017] NZCA 80
Case: [2017] NZCA 80
Decision Date: 27 March 2017 at 10.30 am

CaseChat Overview and Summary

Michael John Denney appealed his conviction and sentence for intentionally causing grievous bodily harm by running over Mr Blain with his vehicle. The case was heard in the Court of Appeal of New Zealand, with Winkelmann, Woodhouse, and Collins JJ presiding. Mr Denney was sentenced to four years and nine months’ imprisonment for the offence. Mr Denney raised four grounds of appeal against his conviction and two against his sentence. The court dismissed the appeals against conviction and sentence.

The court found that the jury's verdict was reasonable, considering all evidence presented. The court found the statement attributed to Mr Denney inadmissible due to Detective Ralph's failure to comply with the Practice Note. However, the court concluded that the statement's admission did not cause a miscarriage of justice. The court also found that Judge Bergseng's direction on the reliability of Detective Ralph's evidence was adequate and that the judge's directions concerning expert evidence were appropriate. Finally, the court concluded that the sentence imposed on Mr Denney was within the range reasonably available in this case, and the appeal against sentence was dismissed.

Orders