R v Bond
[2015] NZHC 1915
•13 August 2015
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL [RETRIAL].
PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2015-009-1438
[2015] NZHC 1915
THE QUEEN v
DEVON CHARLES BOND
Hearing: 10 August 2015 Appearances:
C J Boshier for the Crown A S Greig for the Defendant
Judgment:
13 August 2015
JUDGMENT OF MANDER J
[1] The Crown has made application under s 101 of the Criminal Procedure Act 2011 for an order that the conviction of the defendant, Devon Bond, for the abduction of a woman and the factual circumstances of that offending be admitted at his trial as propensity evidence.
[2] As a result of a DNA match that has recently become available, Mr Bond is charged with the intruder rape of a woman in May 1994. Mr Bond pleaded guilty in 1995 to a violent sexual attack on a woman. It is the evidence of this offending which the Crown makes application to be admitted as propensity evidence at his trial.
R v BOND (Propensity) [2015] NZHC 1915 [13 August 2015]
Circumstances of the intruder rape
[3] At the time of this offending the complainant was a 42 year old female residing by herself in the Christchurch area. She had recently moved into a new home some 10 days previously. The house backed on to vacant farmland.
[4] At around 1.00 am on 9 May 1994, the complainant was awoken by a loud click. She believed there had been a power cut. The noise was her mains power being switched off manually in the garage by the intruder.
[5] Having got up from her bed and put some more clothing on, the complainant was accosted by the intruder in her hallway. The person was wearing dark clothing and a mask or balaclava. He had a large knife. He walked the complainant back to her bedroom. There, holding the knife against the complainant’s throat, he pushed her onto the bed, initially sitting on top of her, telling her to remain quiet, before turning her over so that she was lying on her stomach.
[6] The intruder directed the complainant to put her hands behind her back. He used a portion of cord cut from the victim’s clothesline to tightly tie her hands together behind her back. He put a pillowcase over his victim’s head, and removed her tracksuit pants. The intruder then digitally penetrated the victim’s vagina before performing oral sex on her. He then raped her until he ejaculated.
[7] After demanding the victim’s purse, the intruder took its contents. He ripped the telephone cord from the socket and threatened the complainant that if he got caught he would be back, before exiting the house via the garage. The victim, after managing to free herself, ran to neighbours for help.
[8] No arrest was made until December 2014, when, as a result of a DNA match, Mr Bond was identified. He has denied the allegation.
[9] A semen-stained vaginal swab taken at the time of the original police investigation in 1994 was tested and compared with a recently acquired evidential sample taken from Mr Bond. There is extremely strong scientific support that the DNA in a sperm fraction originated from the complainant and Mr Bond, rather than if
the DNA originated from the complainant and an unknown person chosen at random from the general population.1
The propensity evidence
[10] At about 6.30 am on 30 May 1995, Mr Bond positioned himself on the stopbank of the Ashley River to observe a 37 year old woman on her morning run. The woman had, for some years, at approximately 6.00 am, run from her home along the stopbank as part of her daily routine. Mr Bond, on at least two previous occasions, had watched this woman running towards the Ashley River Bridge. He believed she lived at an address in a street near the bridge. Mr Bond told police he was waiting on the stopbank in the dark with the intention of observing the woman go to her home, in anticipation of seeing her undress.
[11] The woman’s route took her along to where Mr Bond was hidden. Upon her approaching him, Mr Bond told police that he knew he was going to be seen, so he decided to attack her. The woman runner stopped short of Mr Bond, at which point he attacked her, punching her at least five times in the face. There then ensued a violent struggle, during which the woman ended up on the ground on the side of the stopbank with Mr Bond’s hands around her throat from behind. Placing his arm around her neck and throat, he dragged the woman backwards for some 180 metres to his car.
[12] He was telling the woman to stop screaming and to be quiet. Mr Bond dragged her to the boot of his nearby car. He told her to get into the boot. At this point, the woman pleaded with him not to put her into the boot, saying she would cooperate. Mr Bond then dragged her to the driver’s door, which he opened, pushing her across to the passenger’s seat.
[13] He then drove her approximately a kilometre down a track beside the river, before dragging her out of the vehicle and pushing her face down into the grass. He then removed her skivvy, which he used to tie her hands behind her back. During this
1 The statistical result is one thousand million million, or 1 x 1015.
period, the woman was pleading with him not to remove her clothing. She believed he was going to rape her.
[14] He left her lying on the ground momentarily, and the woman took the opportunity to try and escape. She attempted to run away but was caught by Mr Bond and dragged back to the vehicle. Despite her pleas that she would cooperate, he placed her into the boot of the car and shut the lid. He then drove off. Fortunately, the woman managed to untie her hands and release the boot lock, whereupon she immediately threw herself onto the roadway from the moving vehicle, before running across a paddock to a nearby house.
[15] After Mr Bond was apprehended, he admitted that when he attacked the woman it was with the intention of raping her, although he stated his original intention was to observe her undressing and that, because he had been surprised by her on the stopbank, he lost control of the situation. He admitted having an issue with wanting to watch women undressing without their knowledge.
The legal principles to be applied
[16] The approach to the assessment of the admissibility of propensity evidence is set out at ss 40 and 43 of the Evidence Act 2006:
40 Propensity rule
(1)In this section and sections 41 to 43, propensity evidence—
(a)means evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved; but
(b)does not include evidence of an act or omission that is—
(i)1 of the elements of the offence for which the person is being tried; or
(ii)the cause of action in the proceeding in question.
…
43 Propensity evidence offered by prosecution about defendants
(1)The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.
(2)When assessing the probative value of propensity evidence, the Judge must take into account the nature of the issue in dispute.
(3)When assessing the probative value of propensity evidence, the Judge may consider, among other matters, the following:
(a)the frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurred:
(b)the connection in time between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(c)the extent of the similarity between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(d)the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:
(e)whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:
(f)the extent to which the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusual.
(4)When assessing the prejudicial effect of evidence on the defendant, the Judge must consider, among any other matters,—
(a)whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and
(b)whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.
[17] The admission of propensity evidence rests largely on the concepts of linkage and coincidence. The greater the linkage or coincidence provided by the propensity evidence, the greater the probative value the evidence is likely to have.2 The statutory definition of propensity refers to a tendency to act in a particular way, or to have a particular state of mind.3 Therefore, in order to be probative, the evidence sought to be admitted must be able to be linked with the alleged conduct of the defendant with some degree of specificity. Further, the linkage must be sufficiently strong to result in it having probative value in relation to an issue in dispute, which outweighs the risk the evidence may have an unfairly prejudicial effect on the defendant. The importance of identifying the issue in dispute, as required by s 43(2) of the Act, was emphasised by the Court of Appeal in Freeman v R:4
(1) In this context we think it important to recognise that the admissibility of propensity evidence should be assessed in a nuanced and contextual way which focuses closely on what is truly in issue in the case, enabling a considered assessment of the probative value of the evidence against the risk of it having an unfairly prejudicial effect if admitted.
(2) In many, and perhaps most, cases, propensity evidence invokes ideas about coincidence, with the Crown seeking to show that the defendant's claim of innocence rests on an implausible coincidence, in effect, of lightning (in the form of false allegations) striking the same place twice (or, often enough, many times). The more particular (or unusual) the defendant's style of (alleged) offending and/or the more frequent that offending is, the stronger the prosecution argument becomes.
[18] Necessary to that assessment are the matters set out in s 43(3) which, while neither mandatory nor exhaustive, are usually appropriate to consider, to the extent they are relevant in the course of making the assessment of the probative value of the evidence sought to be admitted.5 In Batchelor v R, however, the Court of Appeal cautioned against taking a mechanical approach when comparing the current offending against the proposed propensity evidence.6 The Court of Appeal observed:7
The task for the Court is not mechanically to identify points of similarity and dissimilarity but to determine whether there are aspects of the propensity evidence which are genuinely and logically relevant to the issue or issues the jury will have to determine.
2 Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [3].
3 Evidence Act 2006, s 40(1)(a).
4 Freeman v R [2010] NZCA 230 (citations omitted).
5 Mahomed v R [2011] NZSC 52 at [6].
6 Batchelor v R [2012] NZCA 106 at [20].
7 At [20].
The Crown’s submission
[19] The Crown submitted the proposed evidence is probative of a particular state of mind or tendency on Mr Bond’s part, in the mid 1990s, to commit violent sexual attacks on women unknown to him. While acknowledging that differences can be identified between the two episodes of offending, it was submitted there are aspects of the propensity evidence which are logically relevant to the identification of the offender.
[20] The essential similarity, the Crown submitted, was the detention, physical overpowering, and expressed intention to rape a woman unknown to Mr Bond. In particular, the Crown emphasised the following similarities which, in its submission, showed a tendency to act in a particular way:
· the binding of the women’s hands behind their backs with an available item belonging to them;
· restriction of the women’s breathing by choking or placing a pillowcase over the head to ensure compliance;
· a lack of words spoken during the attacks, the few words which were spoken included both women being told to be quiet; and
· only partial removal of clothing.
[21] The Crown submitted the totality of the features shared by the propensity evidence and the alleged offending is capable of legitimately advancing the identification of Mr Bond as the offender. The evidence of the abduction within the same period as the alleged offending, it was submitted, demonstrated Mr Bond’s propensity at that time to violently overpower women unknown to him, rendering them unable to resist by binding their wrists. Of itself, it was submitted the sexual attacks are unusual, and there is a sufficient linkage to allow a jury to legitimately use the propensity evidence in their assessment of the Crown’s case. The Crown submitted the jury will have the benefit of trial directions which will sufficiently mitigate any unfair prejudicial effect arising from hearing about Mr Bond’s previous offending.
The defence’s submission
[22] Mr Bond submitted there is insufficient linkage between the two incidents to make the prior offending sufficiently probative for it to be admitted as propensity evidence.
[23] While being prepared to acknowledge the two incidents as being adequately proximate in time, Mr Bond emphasised there is only the one prior incident. In the absence of a necessary degree of similarity between the two episodes, it was submitted, there is an insufficient probative connection in comparison to the unfair prejudice that will result from admitting the evidence.
[24]The contrast between the two episodes of offending was submitted to include:
· The intruder rape appears to have been carefully planned compared to Mr Bond’s attack which is said to have resulted from panic.
· The intruder rape occurred in the victim’s home, whereas Mr Bond’s attack was in a public place.
· The attacks were at different times of the day.
· The offender in the intruder rape brought the binding into the house, preparing himself beforehand, whereas Mr Bond used an improvised binding from the victim’s own clothing.
· The intruder rape involved the use of a weapon (a knife) compared to Mr Bond’s attack, where no weapon was used.
· The intruder rapist was disguised, whereas Mr Bond made no attempt to conceal his identity.
· Mr Bond physically attacked his victim, leaping upon her, punching her in the face at least five times, squeezing her neck to the point where she was
about to lose consciousness. The intruder rapist, however, overcame resistance solely by threat of the knife, and forced compliance in that way.
· The intruder rape appeared to also involve a robbery, with the contents of the victim’s purse being taken.
· During the course of the intruder rape, specific commands were given to the complainant and verbal threats made.
[25] While acknowledging that random sexual attacks on women are of themselves unusual, Mr Bond submitted that police disclosure recorded at least 13 unsolved rapes in the Canterbury area between 1990 and 1996. It was submitted that it was reasonable to assume therefore that Mr Bond was not the only “random sexual attacker” who offended during that period. It was submitted the two attacks were not of themselves so unusual as to amount to “an implausible coincidence”.
Discussion
[26] The issue at trial will be identification. The Crown case squarely rests on the identification of Mr Bond as the offender, as a result of the DNA match. In the absence of that DNA evidence, as is demonstrable from the lack of any arrest for some 20 years, the Crown does not have a case. The prosecution therefore stands and falls on the acceptance by the jury that the DNA analysis proves beyond reasonable doubt that Mr Bond was the intruder.
[27] There are some other peripheral pieces of circumstantial evidence. These include Mr Bond living in Christchurch at the time of the intruder rape; linkage with a vehicle of the same general description last seen in a location where a scent followed by a police dog was tracked from the victim’s address; and footprints consistent with the size of Mr Bond’s work boots, seized and measured at the time of his arrest.
[28] In terms of s 43(3) factors, there is only the one propensity incident upon which the Crown can rely, although it is accepted by the defence as being proximate in time to the occurrence of the intruder rape. Particular similarities and dissimilarities of the offending I have already reviewed at [20] and [24]. The similarities between the
offending do not equate to any type of “signature” evidence whereby the way in which the separate offending was committed could by itself reasonably lead to a conclusion that the same person was responsible for both sets of offences. To that extent, the offending is not linked by their unique or distinct features, although the Crown places weight on the fact that both involve random sexual attacks on women by strangers, in marked contrast to the vast majority of sexual offending, where the victim and offender are known to each other.
[29] The Crown sought to draw a parallel with the Court of Appeal’s decision in Batchelor v R.8 In that case, the appellant was alleged to have committed a rape in 2000 for which he was not arrested until a DNA match in 2010. In 2002, he had been convicted of threatening to kill, arising from an incident which had similarities to the circumstances of the 2000 rape. Again, the sole issue was identity. The Court held:9
While there are some dissimilarities between aspects of the 2002 offending against P and the alleged offending in 2000 against M, the evidence of P has significant probative value in relation to identification of the offender and the incident involving M, because it is probative of a tendency by the offender in both incidents to act in a particular way. The specificity lies in the combination of unusual features detailed by the Judge and identified by the Crown in submissions. The totality of the evidence relating to both incidents has strong probative value since it tends to establish a propensity by the offender to directly confront young women on public streets in the same general vicinity in the early morning, producing or claiming to have a deadly weapon and threatening to kill or cause them grievous bodily harm. Since the appellant was convicted of threatening to kill the complainant P in the 2002 incident, the evidence of essentially similar and unusual behaviour in the incident in 2000 offers strong support for the conclusion that the appellant was the offender on both occasions. It therefore tends to establish the Crown's case.
[30] The case is notable for confirming that the focus when analysing the circumstances of the propensity evidence is on the similarities between the two sets of offending rather than the identification of dissimilarities. However, the circumstances of similarity between the two events in Batchelor v R are more readily apparent than the present. There was a modus operandi present in Batchelor v R which enabled a strong link to be drawn between the two separate events, albeit one that resulted in different outcomes and different charges.
8 Batchelor v R [2012] NZCA 106.
9 At [21]
[31] In the present case, the differences in the narratives of the proposed propensity evidence and that of the intruder rape are plain. The Crown sought to place reliance on the way in which both victims’ hands were bound by the offender, behind their backs. While that is a feature that ought not to be overlooked, it is really the only substantive detail of the way in which the sexual assaults were carried out which could be described as similar.
[32] The probative value of the proposed propensity evidence, however, in my view, arises not from a comparison between the more granular detail of the way the offences were committed, but from the wider common circumstances of the offending, which involved the identification and targeting of a woman unknown to the offender and the commission of a violent sexual attack on her. The particularly predatory sexual nature of the offending elevates the probative value of the evidence beyond a mere propensity to commit sexual offending.
[33] Mr Bond, for sexual purposes, had identified and singled out the woman he would subsequently attack. He had kept her under surveillance, and knew her running routine, having watched her previously. He attacked her while she was isolated and alone on her early morning run and while it was still dark. Mr Bond claimed at the time that he was surprised by the woman when her route took her to where he was hidden, at which point he decided to attack her, rather than be discovered. He, however, clearly demonstrated a high level of motivation and perseverance to rape this particular woman by the way he attacked her, abducted her, took her to one location, tied her up, and then placed her in the boot of his car before she was able to escape. His predatory sexual motivation in targeting this woman was clear and he was not deterred from his objective to rape by her resistance.
[34] By the very nature of the intruder rape, the offender targeted a woman he had acquired sufficient knowledge of to know she was living on her own, and had obtained sufficient familiarity with the house to switch the power off, obtain cord from her clothesline, and enter through the garage. The rapist clearly exhibited a high level of determination to overcome the barriers to his sexual objective by entering and confronting the female occupant in the middle of the night and completing his sexual
assault before leaving the premises.10 While the intruder struck no blows to overcome physical resistance as Mr Bond had done, the threat of the knife held to the victim’s throat was an equally violent means of obtaining compliance.
[35] Some 20 years later, as a result of DNA analysis of a vaginal swab taken from the victim at the time of the intruder rape, Mr Bond is, on the Crown case, identified as the offender. The DNA evidence is a powerful piece of evidence linking Mr Bond with this sexual attack. In order to challenge the probative effect of the forensic evidence, Mr Bond will have to suggest the DNA evidence is false or unreliable, and that it would be unsafe for the jury to conclude that it proves beyond reasonable doubt that he was the intruder who committed the rape.
Decision
[36] The question therefore arises whether in considering the issue of identity there is sufficient probative value in the evidence of Mr Bond targeting and violently persisting in a sexual attack on an isolated woman, around the same time as the commission of the intruder rape, to admit that evidence at his trial. In my view, the intrinsic features of Mr Bond’s offending are sufficiently unusual and denote an adequate level of particularity for the Crown to logically suggest the implausibility of coincidence between the DNA identification of Mr Bond as the intruder rapist and his commission of a violent sexual attack, little more than a year later. Both episodes of offending share very strong predatory characteristics.
[37] Mr Bond placed emphasis in his submissions on the material made available by the police that over the course of the previous six years there were some 13 unsolved rapes in the Canterbury area where it was understood identity remained in issue. It was submitted on behalf of Mr Bond that this statistic showed that random sexual attacks on females were not unusual, and undermined the Crown’s submission of the implausibility of coincidence between the two separate sets of offending. Contrary, however, to Mr Bond’s submission, that statistic does not, in my view, diminish the capability of Mr Bond’s subsequent sexual attack from legitimately supporting the DNA identification of him as the intruder rapist.
10 R v Latifi [2013] NZHC 2274; Latifi v R [2014] NZCA 11; R v Leaitua [2013] NZHC 896.
[38] Mr Bond’s determined sexual attack was on a woman whom he had kept under observation and he knew to be alone and vulnerable. The common features of surveillance and identification of a particular female target otherwise unknown to her attacker coupled with the necessary violent confrontation of the victim to achieve the rape are sufficiently unusual and particular features to make the evidence probative. It is the common predatory nature of the sexual offending which provides the probative linkage.
[39] Mr Bond’s sexual attack proximate to the intruder rape constitutes a further piece of circumstantial evidence from which a jury could be asked to consider the plausibility of the coincidence of Mr Bond being identified by DNA analysis as the intruder rapist some 20 years later.
[40] The probative value of the propensity evidence is only admissible if it outweighs the risk the evidence may have an unfairly prejudicial effect on the defendant.11 In making that assessment, the Court is required to consider whether the evidence is likely to unfairly predispose the jury against the defendant, and the risk of the jury giving disproportionate weight to the proposed propensity evidence. In Mahomed, the Supreme Court observed:12
In order to make the necessary assessment the court must carefully identify how and to what extent the propensity evidence has sufficient particularity to be probative, and how and to what extent it risks being unfairly prejudicial. Obviously any evidence that is probative will be prejudicial to the accused but not normally unfairly so. Unfairness is generally found when and to the extent the evidence carries with it a risk that the jury will use it for an improper purpose or in support of an impermissible process of reasoning. In assessing the probative value/unfair prejudice balance, the court may need to take into account the extent to which it considers a “proper use” direction in the trial judge's summing-up is likely to guard against the risk of improper use.
[41] The Crown submitted that any potential unfair prejudicial effect arising from the propensity evidence can adequately be mitigated by appropriate directions to the jury, which it can be assumed will responsibly follow the trial Judge’s directions.13 The probative value of the evidence, it submitted, clearly outweighs any illegitimate
11 Evidence Act 2006, s 43(1).
12 Mahomed v R, above n 2, at [7].
13 Weatherstone v R [2011] NZCA 276 at [24].
prejudicial effect, and the Crown should therefore be entitled to lead the evidence of Mr Bond’s previous offending at trial.
[42] Mr Bond submitted that any probative value the propensity evidence may have was outweighed by the risk that such evidence may have an unfairly prejudicial effect, and would likely unfairly predispose the jury against him.
[43] The concern is the risk that the nature of Mr Bond’s prior offending may predispose the jury against him, not in terms of what can legitimately be taken into account in assessing the issue of identity of the offender, but because it simply tends to establish that Mr Bond was a bad person. This may lead the jury, or some members of it, to be prepared to convict him regardless of the strength of the evidence, or give disproportionate weight to the fact that he has sexually offended in the past.
[44] In my view, a palliative reducing the risk of unfair prejudice is provided by the length of time that has elapsed since the offending. The jury will appreciate that Mr Bond was convicted and sentenced as a much younger man some 20 years ago, and that he is only charged with the present offending as a result of a DNA match only recently obtained. Similarly, a jury will not lose sight of the fact that the prosecution case is reliant upon their assessment of the accuracy of the forensic evidence. A jury is well capable of understanding the central importance of the DNA evidence in terms of proof of the charge and of the need to be satisfied they can rely upon the scientific proof, and the process by which the DNA result was obtained. In my view, when coupled with appropriate directions regarding the limited way in which the propensity evidence can be used as a further piece of circumstantial evidence, the risk of unfair prejudice can be appropriately minimised.
[45] I am therefore satisfied the risk of unfair prejudice can be adequately and properly addressed by clear directions from the trial Judge regarding the limited use to which the propensity evidence can be put, and the cautioning of the jury against illegitimate reasoning that could potentially result in unfair prejudice against Mr Bond.
[46] Accordingly, I make an order that the conviction of Mr Bond and the factual circumstances of his abduction of a woman for the purpose of rape in 1995 are admissible at his trial.
Suppression
[1] Because this is a matter which has arisen pre-trial, it is appropriate to make an order suppressing publication of the judgment, and any part of the proceeding, including the result, until final disposition of the trial. Publication in law report of digest is, however, permitted.
Solicitors:
Raymond Donnelly & Co, Christchurch A Greig, Christchurch