Van Delden v Police - [2023] NZHC 2110

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…

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 Van Delden v Police

Details

AGLC: Van Delden v Police [2023] NZHC 2110
Case: [2023] NZHC 2110
Decision Date: 9 August 2023

CaseChat Overview and Summary

The appeal in Van Delden v Police concerns the conviction of Timothy van Delden for intimidation with intent. The central issue before the court was whether the trial judge erred in her assessment of the evidence, leading to a miscarriage of justice. The case hinged on the credibility of the victim's account versus that of the appellant. The victim, an animal control officer, had multiple prior encounters with Mr van Delden, which she claimed allowed her to identify him confidently during the incident in question. Mr van Delden, however, denied any presence at the scene, asserting that he was at home at the time due to depression. The trial judge accepted the victim's evidence over Mr van Delden's, finding his alibi unconvincing and his denials to be a complete rejection of the victim's account.

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