Cox v Police - [2021] NZHC 2029

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-409-74

[2021] NZHC 2029

BETWEEN
DESMOND COX

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 5 August 2021

Appearances:

G D Fletcher for Appellant A M Harvey for Respondent

Judgment:

5 August 2021

ORAL JUDGMENT OF OSBORNE J

This judgment was delivered by me on 6 August 2021 at 3.30 pm

Registrar/Deputy Registrar Date:

COX v NEW ZEALAND POLICE [2021] NZHC 2029 [5 August 2021]

Introduction

[1] Mr Cox was convicted following a Judge-alone trial on two charges of doing an indecent act with intent to insult.1 Judge Hix imposed a sentence of eight months’ imprisonment. Mr Cox appeals those convictions. (An appeal filed against the sentence was withdrawn).

[2] The grounds of appeal are that the Judge incorrectly used cross-propensity evidence to convict Mr Cox of the second charge.

Facts

[3] Two events led to Mr Cox’s convictions. These are an alleged exposure of his penis to a woman at the Eastgate Mall carpark on 23 November 2020 (the Eastgate event) and an alleged exposure of his penis to another woman sitting in her car at Burnside Park on 2 December 2020 (the Park event).

Eastgate event

[4] The victim was at the Mall around 4.15 pm. She had just walked back to her car and was sitting in the driver’s seat in the car park. Mr Cox parked his white Toyota van in a car park near to the victim. He exited the driver’s seat and walked around the back of the van. As Mr Cox walked towards the passenger-side sliding door of the van, his penis was hanging out from the open zipper of his trousers.

[5] The victim saw Mr Cox’s penis — “all of it” as she described. The victim described it as “fairly long”. Mr Cox then stared at the victim while reaching for, and opening, the sliding door of his van. He continued to stare at her through the front passenger door’s window while he was standing in the doorway, “a couple of feet” from the victim. The incident lasted about 20 seconds. The victim made eye contact and reversed out of her carpark, Mr Cox closed the sliding door of his van and walked towards her vehicle, with his hand near his groin. When the victim drove away, Mr Cox turned and walked back to his van.

1 Crimes Act 1961, s 126; maximum penalty 2 years’ imprisonment.

[6] There was CCTV footage showing Mr Cox during this time, including driving his van in the car park close to the victim’s car when he could have left space on both sides of his vehicle.

[7] I observe that in speaking to his submissions today, Mr Fletcher has recognised that if the appeal were to succeed because it is an appeal based on a failure to correctly following propensity reasoning, the appeal can only apply in relation to the second charge, the one I am now coming…

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 Cox v Police

Details

AGLC: Cox v Police [2021] NZHC 2029
Case: [2021] NZHC 2029
Decision Date: 5 August 2021

CaseChat Overview and Summary

Desmond Cox appeals his convictions on two charges of indecent acts with intent to insult. Cox was sentenced to eight months’ imprisonment by Judge Hix. The appeal relates to the second of the charges, namely the indecent act committed at Burnside Park on 2 December 2020. Cox argues that the Judge erred in using cross-propensity evidence to convict him of the Burnside Park incident. The appeal hinges on whether the Judge correctly applied the legal principles governing the admissibility of propensity evidence.

The High Court examined whether the Judge's use of propensity evidence was appropriate under section 43 of the Evidence Act 2006. Propensity evidence is admissible if it tends to show a person has a propensity to act in a particular way or has a particular state of mind. The Court found that the propensity evidence was relevant and had high probative value given the similarities between the two incidents. The two indecent acts occurred nine days apart, involved Cox exposing himself to women in their cars, and both incidents happened at a similar time of day. The Court concluded that the Judge correctly determined the Burnside Park incident was admissible propensity evidence in relation to the Eastgate Mall incident. The propensity evidence was one aspect of the evidence the Judge relied on to convict Cox on the second charge, not the sole foundation.

The Court rejected Cox’s argument that the prosecution should have "offered" the propensity evidence under section 43 of the Evidence Act. The Court found that the prosecution had offered the evidence relating to the Eastgate Mall incident, which the Judge then considered as propensity evidence. Even if the prosecution had not initiated the consideration of propensity evidence, the Court found no miscarriage of justice as the evidence was correctly admissible. The Court also dismissed Cox’s argument that severance of the charges may have led to an acquittal on the Burnside Park charge.

In conclusion, the Court found that the Judge’s use of propensity evidence was appropriate and that no miscarriage of justice resulted. The appeal was dismissed.

Order: The appeal is dismissed.

Orders