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 (An appeal filed against the sentence was withdrawn).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 to.

Park event

[8]    The victim of the Park event was parked on Roydvale Avenue in Burnside in the afternoon. Mr Cox pulled into the car park to the left of the victim in his white van. The victim said that although the car park was for practical purposes empty, Mr Cox had driven up and parked right alongside her vehicle. As Mr Cox exited his van he made eye contact with the victim, who saw his penis was hanging out of his pants.

[9]    The victim looked away, and when she looked back Mr Cox had moved and was standing in the front of her car, looking at her. His genitals were still exposed, and he thrust his hips toward her. She considered his penis “average to larger”.

[10]   The victim backed out of her car park and drove away before stopping to call police. While she was on the phone to the Police, Mr Cox got back into his van and drove away towards Avonhead Road.

Mr Cox’s evidence

[11]   At trial Mr Cox gave evidence that the victims were mistaken. He said what they saw in fact was a wooden dowel attached to his pants (produced in evidence), not his penis. Mr Cox explained that the dowel was kept there to enable him to exercise the little finger on his right hand which was badly injured in a work place accident.

[12]   He called three other witnesses, including his wife who spoke as to where Mr Cox kept his wooden dowel and as to their observations of him gripping it as an exercise.

Principles on appeal

[13]   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.2

[14]   Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.3

District Court decision

[15]Judge Hix delivered an oral judgment following the trial.

[16]   After outlining the respective cases the Judge turned to consider the propensity issue. The prosecutor had invited the Court to use the evidence on one of the charges as proof on the other after his Honour had raised the possibility of using propensity evidence at the conclusion of the evidence. His Honour summarised the police argument as “once might be able to raise a reasonable doubt but twice is not a coincidence”.

[17]   The Judge found that there were some peculiarities of the incidents which were similar. He reminded himself that the legal test is whether the evidence of one case tends to show Mr Cox’s propensity to act in a particular way. The Judge referred to s 43 Evidence Act 2006 and summarised the matters he considered under that section. First, the time of day was consistent across both charges, being just after Mr Cox finished work. Secondly, that there was no suggestion the witnesses have in any way

2      Criminal Procedure Act 2011, s 232(4).

3      Criminal Procedure Act, ss 250(2) and 250(3).

known each other beforehand or talked with each other. Thirdly, the Judge considered the fact Mr Cox was said to have parked his vehicle close to the victims in both cases when ample space was available. The Judge also found there was a similarity in the alleged commission of the offence itself across the two charges.

[18]   The Judge considered the CCTV evidence of the Eastgate event. He found it more consistent with the victim’s account than Mr Cox’s, both in relation to how Mr Cox approached the victim and whether it was Mr Cox’s dowel the victim saw. He found the Eastgate event proven beyond reasonable doubt. He did not take the propensity evidence into account in relation to that matter. However, having found that charge proved, the Judge found the Park event was not a mere coincidence. The Judge summarised his reasoning as:

…even without the propensity evidence, my view of the Eastgate matter would not have changed; in relation to the Roydvale Avenue incident, the propensity evidence has assisted me in my conclusion.

[19]The Judge found Mr Cox guilty on both charges.

Submissions

Appellant’s submissions

[20]   Mr Fletcher, for Mr Cox, submitted that the traditional rule is that the evidence of a person committing a crime on one occasion ought not to be used as evidence to support an allegation of another. He recognised, however, that propensity evidence is an exception to this traditional rule.

[21]   Mr Fletcher argued that the prosecution did not “offer” the propensity evidence as required by s 43 of the Evidence Act. It was instead the Judge who first raised it. Mr Fletcher says that the raising of the issue took everyone by surprise. He says that, given propensity evidence is complicated, it should have been raised early by prosecution and he should have had the opportunity to file written submissions. Further, he raised the possibility that he would have applied to have the charges heard separately.

[22]   Mr Fletcher submitted propensity evidence had little value in this case. He said the issue was whether the witnesses correctly described what they saw, rather than identification or another issue. He referred to Professor Gallavin’s text Evidence where the author says:4

For example, on a charge of burglary, evidence that the defendant had committed burglaries in the past is more likely to be admitted if the defendant testifies that he entered a strangers house by mistake than if the defendant has not been seen near the scene of the crime and the issue is who committed the burglary.

[23]   Mr Fletcher further submitted that the fewer the suggested propensity events, the more striking the similarity must be:— two events may simply be coincidence. Mr Fletcher referred to the s 43(3) Evidence Act factors submitting the Judge erred in how he had done so. In particular, Mr Fletcher submitted the “extent of similarity” was limited to Mr Cox exposing his private parts, with no other distinctive element. Mr Fletcher argued the Judge erred in the weight he placed on the fact the events occurred at a similar time of day and that Mr Cox positioned his van close to their cars in both instances. Mr Fletcher also took issue with the Judge’s assessment of the events as “entirely independent”.

[24]   Mr Fletcher submitted the best way to consider whether the propensity evidence should have been used was to ask whether Mr Cox would have been convicted of each charge if he had been tried on the charges separately.

Respondent’s submissions

[25]   Mr Harvey, for the Crown, similarly referred to the s 43(3) factors. He submitted there were similarities as on each charge Mr Cox had parked (unnecessarily) close to a woman alone in her car, had his “long” or “average to large” penis hanging out of his zipper and made eye contact with the victims. He also submitted the offending was unusual as Mr Cox approached them randomly with his penis hanging out of his zipper. He submitted the Judge was entitled to rely on cross-propensity reasoning.

4      Chris Gallavin Evidence (LexisNexis, Wellington, 2008) at 223.

Analysis

[26]    Propensity evidence is adduced where a person can be shown to have a tendency to act in a specific way or a particular state of mind. The justification for admitting propensity evidence rests on concepts of linkage and coincidence.5

[27]   The sole issue was whether the witnesses were mistaken in believing what they saw was Mr Cox’s penis.

[28]   To be admissible, propensity evidence must be relevant to an issue in dispute.6 The propensity evidence here was probative in relation to the Park event because, as the Judge said, “once might be able to raise a reasonable doubt but twice is not a coincidence”. If proved, the fact Mr Cox had his penis visible at the Eastgate event makes it less likely the second witness was mistaken when they say they saw Mr Cox’s penis at the Park event. This is demonstrated when the s 43(3) factors are considered:

(a)Frequency: There were two incidents.

(b)Time: The two incidents occurred nine days apart. They were closely connected in time.

(c)Similarity: There are significant similarities. On each occasion Mr Cox parked his van close to a woman alone in her car, unnecessarily close in terms of the spaces available. Both witnesses described a period of sustained and deliberate eye contact, and Mr Cox approaching their vehicles. Each offence also occurred at a similar time of day. The similarity may be considered striking.

(d)Number of complainants: There were two complainants.

(e)Collusion: Mr Fletcher accepted there was no suggestion of collusion. The witnesses were truly independent.

5      Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [3].

6      C(CA458/2018) v R [2018] NZCA 513 at [23]; and Evidence Act 2006, s 43.

(f)Unusualness: Exposing oneself to strangers is unusual behaviour and in this case the unusualness is increased by the extent of the similarities to which I have referred.

[29]   The striking similarity combined with the fact the incidents occurred within nine days of each other gives the evidence high probative value for the purpose of establishing the second witness was not mistaken. A single prior and substantially similar incident may be admissible as propensity evidence.7

[30]   In relation to Mr Fletcher’s submissions as to the prospect of severing the charges, I note the observations of the Court of Appeal in M(CA85/13) v R in which the Court of Appeal summarised earlier authorities in relation to the linkage between severance arguments and propensity arguments. There the Court observed:8

[17] Where evidence in relation to one count is admissible propensity evidence in relation to another count, this is clearly a strong factor against severance. Even where this is not the case there may be circumstances where allegations are so connected in time and circumstance that it is necessary to try counts together in order to present a case on a realistic rather than an artificial basis. The discretion to grant severance is not likely to be exercised where it would be contrary to the requirements of justice to deny the jury the advantage of the full picture.

[31]   This is a case where severance would have denied the Judge the advantage of considering the full picture recognised by the Court of Appeal in M. This was a classic case for joinder.

[32]   Mr Fletcher has not pointed to any particular prejudice other than the fact Mr Cox was convicted on the second charge in partial reliance on the propensity evidence. That is a reflection of the legitimate probative value.

[33]   In these circumstances the Judge correctly determined that the Eastgate event was admissible propensity evidence in relation to the Park event.

[34]   It does not appear to me that the Judge gave the propensity evidence disproportionate weight. The propensity evidence was but one aspect of the evidence

7      Patten v R [2014] NZCA 486 at [24].

8      M(CA85/13) v R [2013] NZCA 239.

the Judge relied on to convict Mr Cox on the second charge. He had the evidence of an eyewitness complainant whose evidence, it is clear, he found reliable. As the Judge indicated,9 the propensity evidence assisted him to reach his conclusion — it was not the sole foundation.

[35]   I return to Mr Fletcher’s submission as to the prosecution not having “offered” propensity evidence in terms of s 43 Evidence Act 2006. Mr Fletcher’s submission does not advance the appeal for at least two reasons.

[36]   First, activating the requirements of s 43 occurs through the offering of the evidence in question (in parallel with the trigger under s 41 where it is the defendant who is offering the evidence). In this case, it was the prosecution which offered the evidence as to the Eastgate event. It happens that the next consideration under s 43 (as with s 41) is whether the evidence offered has the quality of propensity evidence, a matter frequently dealt with in jury trials at the conclusion of the evidence and before the jury are directed. The fact that the Judge (rather than counsel) may have initiated the consideration as to whether the evidence as to the Eastgate event had the quality of propensity evidence does not alter the fact that it was the prosecution which had offered that evidence in the first place. Once the adjudicator of fact (in this case the Judge sitting as Judge-alone) perceived the potential use of the Eastgate event oral evidence as propensity evidence, it was for the Judge to direct himself (having heard any submissions), as to whether or not it was admissible in relation to the Park event on that basis.

[37]That is precisely what the Judge then did, introducing his analysis in this way:

[10] In particular there is this propensity issue that has come in. That is a legal issue where I am being asked to effectively use what one witness says in one case as evidence to support the case in relation to the other witness. In other words, asking for the evidence of each of them to support each other. In essence, I will simplify it by saying that the police case is “well once might be able to raise a reasonable doubt but twice is not a coincidence” I will just simplify the propensity argument in that way.

The Judge then completed that analysis at [11]–[13].

9      Police v Cox [2021] NZDC 11361.

[38] Secondly, even were there a need for the prosecution to have initiated the consideration of the Eastgate event evidence as propensity evidence, that cannot constitute a miscarriage of justice if the evidence was correctly admissible (as I found (at [24]–[29] above). Here, evidence which was subsequently used for propensity reasoning was all legitimately and necessarily adduced to prove the first charge relating to the Eastgate event. Mr Fletcher was given the opportunity to make legal submissions on the appropriateness of propensity reasoning as was the prosecutor, albeit at the close of the hearing. The propensity evidence is now before this Court as it was before the District Court. An issue arising on the appeal is whether it was properly admissible. That can equally be determined on this appeal as it was in the District Court. Mr Fletcher has made detailed submissions in relation to it. Had I found that the need for assessment of propensity evidence under s 43(1) had not been triggered, this aspect of the appeal would still have failed for the reason that there has been no miscarriage of justice resulting.

[39]   I turn briefly and finally to consider Mr Fletcher’s submission that the best way to consider whether the propensity evidence should have been used is to ask whether Mr Cox would have been convicted of each charge if he had been tried on the charges separately. Mr Fletcher suggests that if the Park event charge had proceeded first, Mr Cox may well have been acquitted on both. I do not find that analysis helpful. The fact that the charges were not severed but were heard together and the case proceeded accordingly. Had the charges been severed, and I do not believe it likely that the Court would have ordered severance, the prosecution would almost inevitably have sought to have the Eastgate charge dealt with first with precisely the same consequences as occurred in the joint trial of the charges.

Conclusion

[40]   I have therefore concluded that the Judge’s use of the propensity evidence was appropriate and that in any event no miscarriage of justice resulted.

Order

[41]I dismiss the appeal.

Osborne J

Solicitors:

G D Fletcher, Barrister, Christchurch Crown Solicitor, Christchurch