Dey v R

Case [2021] NZCA 342 28 July 2021

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA623/2019
[2021] NZCA 342

BETWEEN	GRANT ALEXANDER DEY Appellant
AND	THE QUEEN Respondent

Hearing:	22 June 2021
Court:	Collins, Thomas and Muir JJ
Counsel:	P V C Paino for Appellant J E Mildenhall for Respondent
Judgment:	28 July 2021 at 10.00 am

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Thomas J)

Introduction

On 5 November 2019, Mr Dey was sentenced in the Wellington District Court to three years’ imprisonment for aggravated burglary and assault with a weapon, after having been found guilty by a jury.[1] He now appeals both his conviction and sentence, on the grounds that the District Court Judge erred in his handling of identification evidence, and took a starting point on sentencing that was too high and then made an insufficient deduction for Mr Dey’s mental health and alcohol issues.[2] The Crown opposes the appeal.

Background

[1]R v Dey [2019] NZDC 25785.

[2]The ground of appeal that a key witness for Mr Dey, Mr Patel, was not interviewed or called as a defence witness, despite Mr Dey instructing his trial lawyer to do so, was abandoned at the appeal hearing. Mr Dey had sought to call Mr Patel to prove that the victim had met him, thus disproving the victim’s evidence that he had never met the offender. Mr Patel has said on oath that he had not introduced Mr Dey to the victim and has not ever been present when they were together.

The evidence at trial was that, on 17 November 2018, Mr Dey was living at his address in Strathmore, Wellington and had been drinking since the early morning. At 3.00 pm, Mr Dey entered the next door flat where the victim was living in a downstairs bedroom. Mr Dey was carrying a 15 cm knife that had a grey handle and holes down the blade.
Mr Dey knocked on the victim’s bedroom door and, when the victim opened it, Mr Dey tried to push his way into the bedroom. The victim resisted. Mr Dey raised the knife above his shoulder and tried unsuccessfully to strike the victim with it. The victim was able to close the door and hold it shut. Mr Dey started shouting at him, saying, “Come outside. I’m not going to leave you”. The victim was on the telephone at the time. He told his friend what was happening and his friend called the police.
Eventually Mr Dey went upstairs and the victim went outside. When the victim was standing on the street, he saw Mr Dey at a window on the top floor of the block of flats. The police then arrived.
The victim told the police the offender had facial tattoos and long hair, and described the knife. Based on that description, the police arrested Mr Dey at the scene. The police located a knife matching the victim’s description of it…

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 Dey v R

Details

AGLC: Dey v R [2021] NZCA 342
Case: [2021] NZCA 342
Decision Date: 28 July 2021 at 10.00 am

CaseChat Overview and Summary

Grant Alexander Dey appeals his conviction and sentence in relation to aggravated burglary and assault with a weapon. The Court of Appeal dismissed the appeal. The appellant was sentenced in the Wellington District Court to three years’ imprisonment for aggravated burglary and assault with a weapon after having been found guilty by a jury. The appellant appeals both his conviction and sentence, on the grounds that the District Court Judge erred in his handling of identification evidence, and took a starting point on sentencing that was too high and then made an insufficient deduction for the appellant’s mental health and alcohol issues.

The Court of Appeal found that the District Court judge did not err in how he dealt with the issue of identification. The Court found that there was good reason not to undertake a formal identification procedure, and that the identification evidence was reliable. The Court also found that the trial judge gave an appropriate warning to the jury about the visual identification evidence. The Court further found that the starting point on sentencing was within range, and the discount for the appellant’s mental health and alcohol issues was appropriate in the circumstances.

The appeal is dismissed and the conviction and sentence are upheld. The solicitors for the appellant and respondent are Paino and Robinson, Upper Hutt and Crown Law Office, Wellington, respectively.

Orders