IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE
CRI-2023-476-4
[2023] NZHC 2110
BETWEEN TIMOTHY RENE VAN DELDEN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 20 July 2023 Appearances:
K M Henry for Appellant N Girgis for Respondent
Judgment:
9 August 2023
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 9 August 2023 at 9.30 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
VAN DELDEN v NEW ZEALAND POLICE [2023] NZHC 2110 [9 August 2023]
Introduction
[1] Timothy van Delden was convicted of intimidation with intent1 by Judge McMeeken on 7 March 2023.2 He appeals that conviction.
Facts
[2] The victim in this matter is an animal control officer at the Waitaki District Council. She was involved in the seizure of Mr van Delden’s dog earlier in 2020, leading to several confrontations between the two. Mr van Delden was eventually trespassed from Council premises.
[3] Around 8.15 – 8.20 am on 27 August 2020, Mr van Delden drove outside the victim’s home on the far side of the road. He tooted at her as she was leaving the house with her son before parking his car on the near side of the road, not far from her own parked car, and watched the victim for several minutes as she placed her son in her car. After a short time, he did a u-turn and parked across the road from her before leaving not long after. Ms Fleming was frightened and was concerned for her son. Mr van Delden denies ever being there.
Principles on appeal
[4] Section 232 of the Criminal Procedure Act 2011 provides that the High Court may only allow an appeal against conviction if satisfied that the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason”. A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.3 In this section, a trial includes a proceeding in which the appellant pleaded guilty.4
1 Summary Offences Act 1981, s 21(1)(d).
2 Police v van Delden [2023] NZDC 7367 [District Court judgment].
3 Criminal Procedure Act 2011, s 232(4).
4 Section 232(5).
[5] The appeal proceeds by way of rehearing, and this Court is required to form a view of the facts.5 If this Court reaches a different view on the evidence, it follows the trial judge necessarily will have erred and the appeal must be allowed.6 The onus is on the appellant to show an error occurred.
District Court decision
[6] At the outset of her analysis, the Judge acknowledged that the central issue before her was one of credibility.
[7] The Judge noted the victim’s familiarity with the appellant from…
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CaseChat Overview and Summary
The appellant argued that the trial judge's preference for the victim's evidence was unjust, pointing to alleged procedural errors by the police in handling evidence and delays in the trial. The court considered these arguments but found no material error that would lead to a miscarriage of justice. The failure to disclose a handwritten statement and associated notebook entries was deemed inconsequential as the content of the statement did not differ significantly from the disclosed evidence. The court also found that the delay in the trial, while notable, did not prejudice the appellant to the extent of affecting the trial's fairness. The judge's credibility assessments were upheld as she had the benefit of observing the witnesses firsthand.
Ultimately, the court dismissed the appeal, confirming the conviction. The decision underscores the principle that appellate courts generally defer to a trial judge's assessment of witness credibility unless there is a clear error in the judge's reasoning or process. In this instance, the court found no such error.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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