Michael John Denney v The Queen - [2020] NZSC 159

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 83/2020
[2020] NZSC 159

BETWEEN	MICHAEL JOHN DENNEY Applicant
AND	THE QUEEN Respondent

Court:	Glazebrook, Ellen France and Williams JJ
Counsel:	P J Kaye for Applicant A J Ewing for Respondent
Judgment:	22 December 2020

JUDGMENT OF THE COURT

The application for recall of this Court’s judgment of 9 June 2017
(Denney v R [2017] NZSC 85) is dismissed.

____________________________________________________________________

REASONS

Introduction

Following a jury trial, the applicant was convicted of intentionally causing grievous bodily harm by using his vehicle to run over the complainant, Mr Blain. The applicant’s appeal to the Court of Appeal against conviction and sentence was unsuccessful.[1] His application for leave to appeal to this Court against conviction was dismissed in a judgment delivered on 9 June 2017.[2] He has now filed a further application for leave to appeal to this Court. The application is brought on the basis that further evidence from the defence expert, Neil Mackay, who gave evidence at trial that the tyre marks at the scene of the incident could not be attributed to the applicant’s vehicle,[3] shows that the verdict of the jury was unreasonable.[4]

Background

[1]Denney v R [2017] NZCA 80 (Winkelmann, Woodhouse and Collins JJ) [CA judgment].

[2]Denney v R [2017] NZSC 85 (Elias CJ, Glazebrook and Ellen France JJ) [SC leave judgment].

[3]In his examination-in-chief, Mr Mackay said the evidence at the scene as to the width of the tyre marks did not support the conclusion that these marks were deposited by the tyres on the applicant’s vehicle. In cross-examination, Mr Mackay said he did not believe the tyre marks at the scene could be attributed to the applicant’s vehicle.

[4]Accordingly, the applicant says a miscarriage of justice has occurred: see Senior Courts Act 2016, s 74(2)(b).

The incident giving rise to the charge took place in July 2014. While at a friend’s party, there was an argument between the applicant and his colleague, Mr Blain. The applicant left the party in his Suzuki four‑wheel drive vehicle (similar in appearance to a small jeep). Others at the party watched while Mr Blain chased after the applicant’s vehicle on foot before disappearing out of sight. Some minutes after, Mr Blain was found lying on the road with serious injuries. Sosefina Lepale, who lived nearby, told the jury she saw a person walking down the street and then, moments later, saw a vehicle similar to a jeep reverse down the street. She said that the driver was looking over his shoulder in the direction the vehicle was reversing. She then heard a loud bang, after which she could no longer see the pedestrian. Ms Lepale’s evidence was that she heard the driver say “you deserve it”, before driving away.
In the Court of Appeal, the applicant challenged his conviction on a number of grounds, including that the jury’s verdict was unreasonable. This argument was brought on the basis that the evidence of Mr…

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 Michael John Denney v The Queen

Details

AGLC: Michael John Denney v The Queen [2020] NZSC 159
Case: [2020] NZSC 159
Decision Date: 22 December 2020

CaseChat Overview and Summary

The case of Michael John Denney v The Queen was heard in the Supreme Court of New Zealand, with the justices Glazebrook, Ellen France, and Williams presiding. The applicant, Michael John Denney, sought to appeal against his conviction and sentence for intentionally causing grievous bodily harm by running over Mr Blain with his vehicle. The appeal was dismissed by the Court of Appeal and the Supreme Court had earlier declined to grant leave to appeal. Denney's latest application for leave to appeal is based on further evidence from the defence expert, Neil Mackay, who asserts that the tyre marks at the scene could not have come from the applicant’s vehicle.

The central legal issue before the court was whether the Supreme Court should recall its earlier judgment declining leave to appeal based on the new evidence presented by Denney. The court had to determine if there was a "very special reason" for justice to require the recall of the earlier judgment. The respondent argued that Denney's application was an abuse of the appellate process and that the new evidence was not fresh but rather a reiteration of arguments previously considered and rejected.

The court concluded that the application must be treated as one for recall of the earlier decision. It found that the test for recall was not met as the new evidence did not present a new or significantly different perspective that could alter the court's earlier conclusion. The court held that the new evidence was largely an extension of the arguments previously made and did not undermine the other substantial evidence supporting the jury's verdict. Therefore, the court dismissed the application for recall, maintaining that there was no miscarriage of justice that warranted reconsideration.

The final order of the court was that the application for recall of the Supreme Court's earlier judgment declining leave to appeal was dismissed. The court emphasized that the new evidence did not provide any new grounds for appeal and did not justify a departure from the earlier decision.

Orders