R v Simpson [2020] NZDC 17740 (3 September 2020)

Last Updated: 11 July 2023

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]

IN THE DISTRICT COURT AT AUCKLAND I TE KŌTI-Ā-ROHE KI TĀMAKI MAKAURAU

CRI-2019-090-005584 [2020] NZDC 17740

THE QUEEN

v

DARRYL SIMPSON

Hearing:	1 September 2020
Appearances:	A-R Davies for the Crown P Heaslip for the Defendant
Decision:	3 September 2020

DECISION OF JUDGE B A GIBSON

[1] Darryl Ross Simpson faces trial on nine charges of obtaining by deception over

$1,000, two charges of attempting to obtain by deception over $1,000 and two charges of obtaining by deception between $500 and $1,000.

[2] The allegations relate to various occasions between May 2014 and November 2019 when it is alleged the defendant approached older or elderly female complainants, and made representations to them that their roofs needed repairing. He often gave quotes for work he said needed to be done and encouraged the complainants to pay him cash, or cash cheques as ‘deposits’ for materials. He sometimes carried out preparatory work, but invariably did not carry out the roof repairs he had represented

R v DARRYL SIMPSON [2020] NZDC 17740 [3 September 2020]

were necessary and had agreed to do. In a number of instances repairs were not required.

[3] The defendant has previous convictions for similar offending and the Crown seeks to lead those convictions and the facts supporting them as propensity evidence. The defendant’s modus operandi for those matters is similar to what is alleged to have occurred in the matters on which he presently faces trial.

[4] The Crown submits the evidence is admissible as evidence of the defendant’s propensity to act in a particular way, namely the making of false representations to older or elderly people at their homes namely that their roofs needed repair and that he would carry out the repairs, and of him ultimately failing to carry out the promised repair work or to only carry it out in a limited way. The Crown also submit the evidence is useful in enabling the fact-finder, in the defendant’s case a jury, to ascertain that he had a particular state of mind in that he knew or was reckless as to whether the representations were false and he made the representations for the purpose of inducing payment in advance of work which he promised to undertake, but would fail to do.

[5] The starting point in terms of s 43(1) of the Evidence Act 2006 (‘the Act’) is to identify whether the evidence has probative value in relation to an issue in dispute in the proceedings which outweighs the risk the evidence may have an unfairly prejudicial effect on the defendant.

[6] The Crown submits the issue in dispute is the defendant’s intention when he obtained money from the complainants. The Crown submission is he acted with deception in convincing the complainants to engage him for work or paid him on account when he had no intention of carrying out the work either at all, or to any significant degree.

[7] Mr Heaslip submits the issues are fact based rather than simply issues of the defendant’s intention and for one complainant, [name deleted], identification is an issue.

[8] In Freeman v R1 William Young P said, at paragraph [21]:

In deciding whether to admit propensity evidence, the Judge should identify as precisely as possible the issue in dispute in the case to which the propensity evidence is adduced. Sometimes this will be very general, for instance whether the complainant’s evidence is credible or even just whether the defendant is guilty. Where the relevant issue is very broad, there is often greater judicial reluctance to admit evidence of similar offending (particularly where there is only one such other incident) than where the issue in dispute can be defined more narrowly. The other side of the coin to this is that propensity evidence which reveals no more than a propensity to commit offences of the kind alleged, despite having some probative value, will often be inadmissible given the inevitable associated prejudice. This is particularly so with the characteristics of the offending in question are unremarkable.

[9] I accept the central issue has to be the defendant’s intention to deceive in making the representations alleged. His intention is relevant to the fact based defences Mr Heaslip claims are available to the defendant such as whether he meant to undertake or conclude the work.

[10] The tendency demonstrated by the admission of evidence of prior convictions and the facts supporting them is of the defendant making false representations to older or elderly people at their homes that their roofs needed repair and that he would carry out the work which he would not do or only partially, and in a very limited way.

[11] The proposed evidence concerns a number of convictions and the facts supporting them to which the defendant pleaded guilty. One was of obtaining by deception in relation to offending against [victim A]. On 2 September 2014 Mr Simpson went to her home address and, claiming to be a home handyman, said her exterior roof needed urgent repair and he could fix it for her. He quoted $2,500 to carry out the work and required a $1,000 deposit which was paid to him. On 4 September a further $2,000 was paid by [victim A] to him and later that day she gave him a further $3,200 in cash, a total of $6,200.00. The roof was subsequently inspected and the work done by Mr Simpson was valued at $400. He pleaded guilty to the charge.

[12] Similarly on 17 May 2016 Mr Simpson approached a 78 year old woman, [victim B], advising her that she had a hole in her roof that needed repair and he would

1 [2010] NZCA 230

fix it, the job likely to take about an hour. He came back and started to work on the roof, after an hour he told [victim B] the work had been done and would cost her

$3,200. She withdrew the cash and she paid the monies to him. The roof was inspected and there was no evidence of fresh work having been undertaken. He pleaded guilty to the charge of obtaining by deception which followed.

[13] There is a similar pattern of conduct in relation to other elderly persons reaching back to 2007. In 2008 Mr Simpson pleaded guilty to and was convicted of four offences of obtaining by deception. The complainants were four separate individuals approached by Mr Simpson, all elderly, and who were told their roof needed repairing. Various quotes were given but the work was not undertaken, or only minor work was undertaken in the case of two of the complaints. The defendant was sentenced to four years imprisonment.

[14] The charges the defendant presently faces are all similar and are of obtaining by deception. Again elderly persons were approached by him and were advised that repairs were needed to the roof of their property. Various sums were quoted and paid. Some repairs were undertaken to a limited extent, but mostly repairs were not. The probative value of the propensity evidence is, in my view, high as clearly illustrating a propensity to act in a particular way.

[15] Obtaining by deception requires proof the defendant caused loss to any person by deception and with the intention of deceiving that person and did so without claim of right. All of the matters sought to be admitted as propensity evidence are highly probative of issues of intention and deceit, both plainly issues that are at the heart of the allegations against the defendant. The connection in time stretches back to 2007 but the style of offending, and its frequency illustrates the probative nature of the evidence which means the age of the earlier convictions in 2007 and 2008 are still relevant and have strength as propensity evidence. The other convictions sought to be led as propensity evidence with the summaries of fact in support concern offending in 2014 and 2016.

[16] The pattern of conduct and the defendant’s modus operandi is similar to the circumstances which are the subject of the offences with which he presently faces trial.

There is no possibility of collusion. There is no evidence the complainants were known to each other and in any event the defendant pleaded guilty to the charges the subject of the propensity application.

[17] The most significant issue is whether the probative nature of the evidence is outweighed by any unfairly prejudicial effect it may have on the defendant; s 43(1). In my view the prejudice, which I accept exists, arises from the probative force of the evidence itself and as such is not unfair. The probative value of the evidence is plainly high and outweighs the risk of unfair prejudice.

[18] In terms of the inquiry under s 43(4) I am satisfied that, with appropriate directions from the Court the evidence is not likely to unfairly predispose the jury against the defendant and the jury, which can be expected to follow judicial directions, will accordingly not give disproportionate weight in reaching its verdict on the matters on which the defendant faces trial to the evidence of the earlier acts led as propensity evidence.

[19] Consequently the evidence is admissible against the defendant.

....................................

Gibson DCJ