Van Delden v Police [2023] NZHC 2110 (9 August 2023)

Last Updated: 6 September 2023

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 her past dealings with him. The victim had “no uncertainty about her ability to identify Mr van Delden” to police and the Court.⁷ The victim had, shortly after the incident, relayed her experience to her manager, Mr Bardsley, who gave evidence in court. He described the victim as “visibly shaken, nervous and distressed”.⁸ Constable Rachel Osborne, who took the victim’s initial statement, also gave evidence.

• [8] Mr van Delden, however, was “very, very clear” in his evidence that he was never outside the victim’s address.⁹ He believed the charges were “ludicrous” and a conspiracy by senior Council staff against him.¹⁰ Mr van Delden asserted that, around August 2020, he was depressed and would have remained in bed until his wife brought him a cup of tea at 8.20 am. Following that, he took his children to school around 8.40, returned home and took his wife and other children to a playcentre. The evidence from him and his wife was that this would have happened because that “was their routine”.¹¹

• [9] The Judge noted the two totally conflicting narratives of events and recognised it came down to a question of credibility.

⁵ Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]- [32].

⁶ At [38].

⁷ District Court judgment, above n 2, at [22].

⁸ At [19].

⁹ At [23].

¹⁰ At [24].

¹¹ At [29].

• [10] In resolving the conflicting narratives, the Judge considered the victim’s evidence was clear and credible. Where she could not recall things, she was candid regarding this. The victim recognised both Mr van Delden and his car, and there was a sound basis for her being able to do that. Her demeanour following these incidents, corroborated by her employer, Mr Bardsley, was consistent with these events having happened. Mr van Delden’s evidence was simply a complete denial, unclear in parts and more focussed, along with his wife, on what the family routine would have been, or what he would have been doing.

• [11] The Judge found there would have been time for the appellant to be outside the victim’s home at 8.15 to act as described and then to be back at his own home around

8.30 am to take his children to school. Mr van Delden’s evidence was rejected.

• [12] Having accepted Mr van Delden’s presence at the victim’s home, the Judge then took into account the fact the victim had been involved in uplifting Mr van Delden’s dog, which was later euthanised, and several acrimonious meetings between the two, to infer he was there to intimidate the victim, and she found the charge proved.

Submissions

Appellant’s submissions

• [13] Ms Henry, for the defendant, asserts the District Court judgment led to a miscarriage of justice and reiterates the appellant’s claim that he was never there. Ms Henry submits the Judge’s preference for the complainant’s evidence, for its perceived degree of detail and clarity, was based on an unfair description of the van Deldens’ evidence. In any event, a number of irregularities in the Police procedure and evidence should have resulted in a finding of reasonable doubt.

• [14] She points to alleged irregularities in document disclosure by the Police regarding evidence from the appellant’s wife which resulted in prejudice. In January 2021, the appellant gave notice of an intention to call an alibi witness. A typed statement of his wife was provided on 7 February 2021. At trial, the Officer in Charge gave evidence she had not seen this statement, but did have a handwritten statement

from Mrs van Delden which said something along the lines that her husband was gone no more than five minutes to the children’s school. This statement was not disclosed and could not be found. The Officer subsequently investigated the time between the house and the school, discovered it took no less than nine minutes, and made notebook entries to that end. The entries and the note were not disclosed to defence counsel.

• [15] Ms Henry says the handwritten note may well have been a contemporaneous statement as in Mrs van Delden’s evidence she said she thought about what they had done on the morning of 27 August as soon as her husband was charged. However, the note could not be produced to help refresh Mrs van Delden’s memory because it was missing.

• [16] In respect of the reliability of the victim’s identification of the appellant, Ms Henry submits the victim said she recognised Mr van Delden “immediately” after he tooted at her on the far side of a busy road. Further, she became anxious and was “freaking out” and failed to take down the number plate of the vehicle or take photos. These elements, she says, suggest the victim could have been mistaken.

• [17] Ms Henry also submits Judge McMeeken erred in her treatment of the defence evidence. She argues the Judge gave insufficient weight to the fact the appellant’s alibi evidence matched with his wife’s, to the extent that it was highly improbable he was outside the victim’s home at the time claimed. She submits it is not unusual that Mr van Delden’s evidence was given with reference to the routine at the time given the memory of specific days may blend together over the two and a half years which had passed since the day at issue. She further notes the appellant’s wife had not produced her evidence based on the account of her husband (as she argues the Judge suggested), but instead turned her own mind to what happened that morning after becoming aware of the charge against Mr van Delden.

• [18] Finally, Ms Henry argues the trial was delayed or adjourned on three separate occasions, none of which, she says, were the fault of the defendant. The trial occurred two and a half years following the alleged offending. These points combine to create an intolerable amount of prejudice toward the appellant, creating a miscarriage of justice and resulting in circumstances where the appeal should be allowed.

Respondent’s submissions

• [19] Ms Girgis, for the Crown, submits there are four primary issues:

(a) whether the Judge erred by preferring the evidence of the victim over the appellant and his wife;

(b) whether the Judge placed insufficient weight on irregularities in the Police investigation and disclosure;

(c) whether the Judge failed to consider whether the complainant was mistaken as to identity; and

(d) whether the Judge erred in her assessment of whether delay caused a miscarriage of justice.

• [20] As to the first issue, Ms Girgis notes that a degree of deference is appropriate for a trial judge’s credibility findings given the advantages that judge has.¹² She argues the Judge was entitled to make a finding on witness credibility and comprehensively outlined factors which supported her conclusions. While Ms Henry has argued the Judge was mistaken in referring to the Mr van Delden’s wife’s evidence as being based on what she was told, Ms Girgis notes Mrs van Delden was not present for all the events which she addressed in evidence (such as Mr van Delden dropping the children to school). The Judge was therefore entitled to conclude part of Mrs van Delden’s evidence related to things she was told.

• [21] In Ms Girgis’ submission, the Judge outlined the evidence of witnesses for both parties, explained how she resolved the conflicts between them, and only reached a conclusion after assessing the competing cases.

• [22] Regarding the second issue, Ms Girgis says there is no miscarriage arising from the failure to disclose the notebook entries and handwritten note as there is no relevant impact. Mrs van Delden was able to express the points she wanted to in examination,

¹² Sena v New Zealand Police, above n 5, at [38]–[40].

and the non-disclosed statement would not have served any purpose. She communicated the evidence that was in her brief to the Court, and there was no basis for suggesting the witness needed her memory refreshed.

• [23] Ms Girgis acknowledges the Judge made an error as to the timing of when Mrs van Delden’s statements were made, but says this was not material to the Judge’s decision-making, and the error was therefore not one which leads to a miscarriage of justice.

• [24] Thirdly, Ms Girgis argues the Judge did not err in accepting the victim’s clear identification of Mr van Delden. The victim had had several interactions with Mr van Delden and had seen him in his vehicle multiple times, which she was able to identify by make and model. She was confident in giving her evidence that she recognised Mr van Delden in the car. While it is said to have originally been on the far side of the road, the car then pulled around onto the near side and parked in front of the victim. Her evidence was that she identified Mr van Delden at each stage of the incident.

• [25] The Judge, in reaching her conclusions, recognised honest witnesses may be mistaken. She also noted the Officer in Charge took a statement of the victim and, in cross-examination, the victim was said to have no uncertainty about her ability to identify Mr van Delden and described him assuredly. There is no identifiable error in the Judge’s treatment of the identification evidence.

• [26] Finally, Ms Girgis argues the appellant has failed to identify how the delays in hearing this case have prejudiced him such that a miscarriage of justice arises.

Analysis

• [27] There are three primary issues:

(a) Did the Judge err in her assessment of the evidence, in particular the identification evidence and the accounts of the van Deldens, such that a miscarriage of justice occurred?

(b) Did the manner in which the disclosure failure was dealt with lead to a miscarriage of justice?

(c) Did the delay to the trial result in a miscarriage of justice?

Treatment of evidence

• [28] As the Judge identified, this case came down to two competing and irreconcilable narratives. The Judge had to reach a conclusion substantially on the basis of which witnesses (and their accompanying accounts) were more credible. These credibility findings were not of themselves mere statements of preference, but were supported by reasoning.

• [29] It is a well-established principle that an appeal court will often be slow to interfere with findings of credibility made by a trial Judge, as they will have had the benefit of hearing the witnesses personally.¹³

• [30] The appellant’s primary criticisms of the Judge’s treatment of the evidence is in respect of the identification evidence of the victim and her characterisation and treatment of the van Deldens’ evidence.

• [31] When the victim first saw the vehicle and the person she says was Mr van Delden, the vehicle was on the far side of the road, the road was busy, and the windows were up. Nevertheless, the victim was confident even at this point that it was Mr van Delden due to her having seen him on multiple occasions and recognising the vehicle. Following this, the vehicle has pulled around and parked around a vehicle’s length in front of the victim’s car, and she said again at this point that she could see it was Mr van Delden. She maintained this identification after the vehicle had made a u-turn and parked on the far side of the road, with the driver’s window closest to the victim. She also recognised the make and model of Mr van Delden’s car.

13. Omar v Police [2017] NZHC 288 at [13]; Shotover Gorge Jet Boats v Jamieson [1987] 1 NZLR 437 (CA) at 441; and Powell v Streatham Manor Home Nursing [1935] AC 243 (HL) at 255-256.

• [32] The victim was confident in her identification of Mr van Delden, not only to the Court in cross-examination, but to people she talked to shortly after the encounter. The Officer in Charge, who took a statement from the victim on 27 August 2020, said that the victim had “nil uncertainty” as to identification and was asked about whether there was anything which would impede her view of him or otherwise interfere with the visibility of Mr van Delden such that he could not be easily distinguished.

• [33] While the Judge did not refer to all of those factors, she noted the victim was “very clear about when she heard a toot that she had seen the driver and the car and that she recognised both of them”.¹⁴ While identification evidence can be problematic and confidence is not always a reliable measure of accuracy, here the Judge also referred to the fact Mr van Delden was known to the victim because of their previous encounters, and she recognised his vehicle. This combination of factors were clearly sufficient for the Judge to have accepted the victim’s evidence as to identification, and I can find no error on this count.

• [34] Ms Henry is critical of how the Judge characterised and treated the van Deldens’ evidence. The Judge noted Mr van Delden’s evidence was largely flat denial. However, the Judge does also refer to Mr van Delden’s account of his routine at the time and acknowledged the difficulties in recall which resulted from the delay until trial. The Judge, after unpacking the evidence of routine offered by the appellant and supported by his wife, also considered that evidence to be less clear and convincing.

• [35] In terms of the Judge’s comment that some of Mrs van Delden’s evidence was second-hand, there can be no criticism of that when the Judge confined that observation to Mrs van Delden’s account of Mr van Delden’s actions away from their home. Beyond this, the Judge accurately characterised the evidence. Much of the examination of Mr van Delden involved emphatic and flat denials of the offending and making allegations of conspiracy or other misconduct by various individuals. Often, this was unprompted. He also referred to the routine that the family had established

¹⁴ At [31].

and said he was able to be specific about times because he was charged the day after the allegation was made.

• [36] Recognising that the Judge had the benefit of hearing from the witnesses directly in court, I do not consider the appellant has identified an error in the Judge’s assessment of the evidence such that a miscarriage of justice has occurred. The Judge, on the evidence, was faced with conflicting narratives. She gave fulsome and considered reasons for accepting the victim’s narrative, and counsel has not identified any reason to depart from those conclusions.

Disclosure of evidence

• [37] The failure to keep a record of and disclose the handwritten statement of Ms van Delden was an error or irregularity in relation to the trial. The question becomes whether this error brought about a real risk that the outcome of the trial was affected or the trial made unfair.

• [38] The fact of the undisclosed evidence came up during the trial, while the Officer in Charge was being cross-examined. The officer said she had received a handwritten letter from Mrs van Delden which asserted her husband was only gone for five minutes. The letter also appears to have contained similar information to the later signed statement, for instance, a reference to the cup of tea in bed. Beyond that, there is no information as to the contents of the statement or when it was written. There was, however, a signed statement from Mrs van Delden prepared in February 2021, which supported a notice of alibi supplied to the Court.

• [39] However, the Judge was concerned that the February statement came so long after the event and she required Ms van Delden to be present so she could be cross-examined on it. In examination, Ms van Delden referred to being sure of the events of the relevant morning because the charges were laid the following day, and she went back over the previous day and recalled the events of that morning.

• [40] When Ms Henry re-examined Ms van Delden, she asked directly when Ms van Delden first thought about the events of 27 August. Ms van Delden reaffirmed that it was when her husband was charged. This point was thoroughly explored and

directly tied to her confidence in the routine. There was no suggestion she could not recall the day and needed to refresh her memory. Furthermore, there was no evidence the handwritten note about the day was made contemporaneously.

• [41] Accordingly, there is no evidence to suggest the failure to disclose the statement and associated notebook entries of the Officer in Charge has created a real risk of an unfair trial or affected the outcome of the trial.

Delay

• [42] There is no doubt that considerable time passed between when Mr van Delden was charged and when the trial took place. However, counsel has not pointed to any appreciable prejudice arising out of this delay.

• [43] The question of whether delay has resulted in prejudice or a miscarriage of justice is an evaluative exercise.¹⁵ This was a relatively straightforward case involving low-level offending. There was not the intervening death of important witnesses or loss of other key evidence which could give rise to a miscarriage of justice. Delay may have contributed to the misplacing of the handwritten statement of Ms van Delden to the Officer in Charge but, for the reasons that I have already noted, I do not consider this gave rise to any material prejudice.

• [44] Furthermore, this was not a case, as for instance, in historic sexual offending prosecutions, where there are many years or even decades between the alleged offending and the making of a formal complaint and laying of charges. In this case, Mr van Delden was charged the day after he was said to have intimidated the victim. He was put on notice that the events of the previous day were at issue. Mrs van Delden has also said she considered the events of 27 August 2020 as soon as her husband was charged.

• [45] While the notes of evidence indicate that witnesses such as the victim, Mr Bardsley, and Mrs van Delden had trouble remembering some specific details of

¹⁵ H v R [2019] NZSC 69, [2019] 1 NZLR 675.

certain events, this was in relation to relatively minor matters and was the sort of forgetfulness one might expect in any ordinary trial.

• [46] I am satisfied the delay has not led to a miscarriage of justice.

Conclusion

• [47] The appeal is dismissed.

Solicitors:

Crown Solicitor, Timaru

Copy to:

K M Henry, Barrister, Oamaru