R v Coe

[2018] NZHC 502

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-055-690

[2018] NZHC 502

THE QUEEN

v

IOSEFA BOB COE

Hearing:

19 March 2018

Appearances:

L Radich for the Crown

M Hislop for the Defendant

Rulings:

19 March 2018

Reasons:

22 March 2018

JUDGMENT OF GORDON J

This judgment was delivered by me

on 22 March 2018 at 3.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:           Crown Solicitor, Manukau Counsel:  M Hislop, Auckland

R v COE [2018] NZHC 502 [19 March 2018]

Introduction

[1]    Iosefa Coe faces charges in relation to one complainant with whom he had been in a relationship. The alleged offending took place in February 2017 (the February 2017 offending). The charges are:

(a)Assault with intent to injure;1

(b)Kidnapping;2

(c)Reckless driving;3 and

(d)Driving with excess breath alcohol (third or subsequent).4

[2]The trial commenced on 19 March 2018.

[3]    Mr Coe was also to have been tried on a further charge as part of the same trial, namely a charge of wounding with intent to cause grievous bodily harm.5 This charge related to the same complainant. The offending took place in April 2017 (the April 2017 offending).

[4]However, on 2 March 2018, Mr Coe pleaded guilty to this latter charge.

[5]    The Crown applied to lead evidence of the April 2017 offending, together with other evidence about Mr Coe’s conduct towards the complainant, as propensity evidence on the charges of assault with intent to injure and kidnapping.

[6]The application was opposed by Mr Coe.

1      Crimes Act 1961, s 193. The maximum penalty is a term of imprisonment not exceeding three years.

2      Crimes Act, s 209(b). The maximum penalty is a term of imprisonment not exceeding 14 years.

3      Land Transport Act 1998, s 35(1)(a). Under s 35(2), the maximum penalty is a term of imprisonment not exceeding three months or a fine not exceeding $4,500. The court must also order the person to be disqualified from holding or obtaining a driver licence for six months or more.

4      Land Transport Act, s 56(1). Under s 56(4), the maximum penalty is a term of imprisonment not exceeding two years or a fine not exceeding $6,000. The court must also order the person to be disqualified from holding or obtaining a driver licence for more than one year.

5      Crimes Act, s 188(1). The maximum penalty is a term of imprisonment not exceeding 14 years.

[7]    I heard the application on the first morning of the trial after the jury had been empanelled. I granted the application. These are the reasons for my decision.

The February 2017 offending

[8]    The complainant and Mr Coe had been in an on-and-off relationship since 2014. She became pregnant and their son was born in November 2015. As at February 2017, the complainant and Mr Coe were not in a relationship. The complainant was the sole provider for their son.

[9]The Crown’s case is as follows.

[10]   On 23 February 2017, Mr Coe telephoned the complainant and asked if she wanted to go camping with him at Kawakawa Bay. She said she did not want to go camping. But she agreed to go to dinner with Mr Coe to discuss various financial issues relating to Mr Coe owing her money.

[11]   At approximately 8 pm on 25 February 2017, Mr Coe picked up the complainant in his car from her address in Manurewa. He had been drinking.

[12]   When the complainant again refused to go camping, an argument ensued. It is alleged that Mr Coe began  driving  erratically  and  was  speeding  in  excess  of  120 kilometres per hour in a 50 kilometres per hour zone along Te Irirangi Drive, Māngere. The complainant screamed at Mr Coe to slow down, urging him to consider their son along with others on the road. He ignored her pleas.

[13]   It is alleged that Mr Coe eventually stopped at a traffic light near a service station on Te Irirangi Drive. The complainant got out of the car and walked over to the service station where Mr Coe had pulled up in his car. She sat on the curb and told Mr Coe she would take a taxi back home.

[14]   After a period, Mr Coe offered to drive the complainant home, repeating that he was now calm. She eventually agreed. But, once inside the car, it is alleged that Mr Coe again began speeding along Te Irirangi Drive at 120 kilometres per hour.

[15]   The complainant pleaded with Mr Coe to let her out of the car. Mr Coe responded by running a number of red lights so she could not get out of the car when it would have otherwise stopped.

[16]   Mr Coe began driving along the South-Western motorway. It is alleged that he then started to assault the complainant, punching her to the head a number of times with his left hand. The car ran up against the median barrier as she tried to defend herself by hitting and kicking him.

[17]   The complainant briefly considered whether her best option was to escape by jumping out of the car. She opened the passenger door, before deciding that jumping would likely kill her. She shut the door.

[18]   Mr Coe exited the motorway onto George Bolt Memorial Drive. But he continued to drive through red lights at speeds of 120 to 130 kilometres per hour. He allegedly told the complainant that he was going to take her to the beach and beat her up.

[19]   As the car approached the intersection of George Bolt Memorial Drive and Tom Pearce Drive near the airport, the complainant decided to jump out of the car. As the car slowed down to take the corner, she did just that. She landed on the road near a grass verge on the left side of the intersection. She was uninjured.

[20]   The police attended the scene and located Mr Coe nearby in his car. He was aggressive. Upon arrest, Mr Coe allegedly produced a breath-alcohol reading of 507 micrograms of alcohol per litre of breath. Mr Coe also allegedly stated on three occasions to Constable Nicholas Hargis that he had “back-handed” the complainant in the face while in the car, as she had pulled on the steering wheel while he was driving.

Proposed propensity evidence

The April 2017 offending

[21]   The April 2017 offending occurred while Mr Coe was remanded on bail for the February 2017 offending.

[22]   Mr Coe was subject to a bail condition not to associate with the complainant. But, on 3 April 2017, he contacted the complainant and stated that he had been kicked out of his address and needed somewhere to stay. The complainant agreed that Mr Coe could sleep on the couch at her address.

[23]   On the evening of 8 April 2017, the complainant and Mr Coe again argued over money that he owed her. She allowed him to sleep on the floor of her bedroom for one final night after he advised her that he had nowhere to go. Mr Coe begged throughout the night to be taken back.

[24]   On the morning of 9 April 2017, the complainant told Mr Coe to leave and that their relationship was over. After begging her to let him stay, Mr Coe retrieved a small knife from the kitchen and stabbed the complainant in the face, neck and hands.

Previous conduct

[25]The following evidence is in the witness statement of the complainant:

(a)Iosefa and I met in 2014. We have been on and off with our relationship since we met, we even broke up after baby was born in November 2015. We have been on and off mainly because of Iosefa’s drinking problem and violence towards me. We have had many domestic incidents, some of which I have called the police for and other I haven’t.

(b)The whole incident is just like a scratch CD, meaning it is just the same old shit. Iosefa gets drunk.  He always gets violent when he is drunk.  I was so scared, I thought I was going to die tonight, or that someone else was going to die.

Is the evidence “propensity evidence”?

[26]   The proposed evidence must tend to show the defendant’s propensity to act in a particular way.6 It is necessary that the propensity have some specificity about it.7

6      Evidence Act 2006, s 40(1)(a).

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

[27]   In this case, the Crown seeks admission of what is called relationship propensity evidence. The Court of Appeal, in Perkins v R,8 explained that evidence of other misconduct by a defendant against the same victim is not orthodox similar fact evidence.9 It does not rely upon standard “unlikely coincidence” reasoning.10 Rather, the rationale for its admission rests on it supporting a conclusion that the relationship between the parties is conflictual and the defendant deals with that conflict by expressing hostility and violence towards the complainant.11

[28]   The Crown submits that the evidence of Mr Coe’s general violence to the complainant prior to the index offending and the specific violence in the April 2017 offending, broadly speaking, shows an ongoing pattern of violence and abuse by Mr Coe against the same complainant, particularly when he is intoxicated and they are in disagreement.

[29]   More specifically, the Crown submits that the April 2017 offending shows Mr Coe’s tendency to be suddenly violent towards the complainant when they argue and when the complainant is not acquiescent to his demands.

[30]   Mr Hislop, for Mr Coe, says it is too speculative for the Crown to submit that the proposed propensity evidence shows Mr Coe’s tendency to be suddenly violent towards the complainant when they argue and when the complainant is not acquiescent. He submits that even though the later April 2017 offending is against the same complainant, it is too dangerous to leap to the conclusion propagated in the Crown’s theory that Mr Coe is prone to extreme reaction if he does not get what he wants from the complainant.

[31]   I accept the Crown submissions. This is precisely the kind of evidence that falls within the category of relationship propensity evidence.

[32]   I note that part of the conduct sought to be adduced as propensity evidence occurred after the index offending, namely the February 2017 offending. As a matter

8      Perkins v R [2011] NZCA 665.

9      Perkins v R, above n 8, at [20].

10 At [20].

11     Perkins v R, above n 8, at [20]; Campbell-Joyce v R [2016] NZCA 192 at [24].

of general principle, evidence of conduct by a defendant after the offence charged can still amount to propensity evidence.12 There seems to be no reason why that principle should also not apply to relationship propensity evidence.

Section 43

[33]I now turn to the necessary analysis under s 43 of the Evidence Act 2006.

[34]As the Court of Appeal succinctly said in Campbell-Joyce v R:13

[20] The evidence sought to be admitted is propensity evidence about [the appellant], the defendant in the proceeding, and it must therefore pass through the gateway in s 43(1) of the Evidence Act 2006 in order to be admissible. The evidence must relate to a relevant issue, and its probative value must outweigh the risk of any unfair prejudicial effect on [the appellant] that it might otherwise carry. The factors in subs (3) may be considered where relevant but those factors are neither a closed list nor a mandatory one. In the end, it is a simple matter of analysing legitimate probative value against unfair prejudicial effect.

[35]   The Court of Appeal went on to say in that case that the crucial element is that the propensity evidence involves broadly similar offending against the same person when they are in disagreement.14 The Court considered it “highly relevant” that the appellant in that case had already behaved towards the complainant with hostility and aggression, and had already been violent or threatened violence towards her.15 The Court considered that such evidence will, of its nature, be highly relevant to the question of whether the appellant committed the offences as charged, even if the similarity is broad rather than specific, and even if the behaviour is not at all unusual.16

[36]   The Court of Appeal further commented that it will not be necessary to demonstrate a close match or unusual act fact patterns in the context of same victim offending.17 Such a requirement would miss the point of this kind of propensity evidence.18    The  relevant  propensity arises  from what  the evidence  says about the

12     R v Mata [2009] NZCA 254 at [45].

13     Campbell-Joyce v R, above n 11.

14 At [25].

15 At [25].

16 At [25].

17 At [26].

18 At [26].

nature of the relationship between the parties and, in particular, about the triggers within it to abusive, violent or threatening behaviour on the part of the defendant.19

[37]   Although the Crown is not required to demonstrate a “close match or unusual fact [pattern]”,20 the Crown submits there are recurrent themes in both the index offending and the April 2017 offending. The Crown submits that, first, there is a possessive and controlling undertone to both offending incidents, insofar that the initial disagreement appears to stem from a refusal on Mr Coe’s part to accept the relationship is over. At the time of both offending incidents, Mr Coe and the complainant were not in a relationship.

[38]   Next, the Crown submits that both incidents involved an argument about money that Mr Coe owed to the complainant in relation to child support.

[39]   Finally, in relation to recurrent themes, the Crown submits that both incidents involved arguments that resulted in sudden violence by Mr Coe when the complainant failed to acquiesce to his demands and that both involved attacks to the complainant’s head.

[40]   For his part, Mr Hislop submits that the evidence is insufficiently probative of the main issues at trial.

[41]   In my view, the proposed evidence (both as to the prior conduct and regarding the April 2017 offending) does have a significant probative value in relation to the issues likely to be in dispute. As to the charge of assault with intent to injure, the likely issue will be Mr Coe’s mens rea. He made an admission to a police officer that he had “back-handed” the complainant in the face because she had pulled on the steering wheel while he was driving.   He does not accept that he intended to injure her.      Mr Coe’s conduct towards the complainant on other occasions, when they argued and she disagreed with him, is highly relevant to the issue of Mr Coe’s intent. Further, in relation to the prior conduct, that occurred on occasions when Mr Coe was intoxicated

19 At [26].

20 At [26].

as he was at the time of the index offending. How he reacted towards the complainant when he was intoxicated in the past is relevant to his intent.

[42]   The credibility of the complainant will be very much in issue. The relationship evidence also provides a relevant contextual background and explains what may otherwise be seen as an extreme reaction on Mr Coe’s part to the complainant’s refusal to go camping with him. I accept the Crown submission that without this contextual narrative, the jury may be more inclined to think that the complainant’s description of events is exaggerated.

[43]   Additionally, the relationship evidence illustrates a cycle of behaviour as between the complainant and Mr Coe. The complainant continued to maintain contact and to interact with Mr Coe after previous incidents of violence. The apparently cyclical response of the complainant to previous transgressions by Mr Coe may assist the jury to understand why the complainant agreed to get into the car with Mr Coe in the first instance and why she got back into the car at the service station once Mr Coe convinced her that he was calm.

[44]   I consider that the proposed evidence is also relevant to the charge of kidnapping. While the complainant was allegedly detained in the car, Mr Coe said to her that he was going to take her to the beach and beat her up. That provides a link to Mr Coe’s behavioural pattern of violence, particularly when the complainant has not agreed to his requests or demands.

Unfair prejudice

[45]   The Crown submits that any prejudice arising from the propensity evidence is inherent in the offending and can be mitigated by a standard propensity direction. As the Supreme Court noted in Mahomed v R:21

[7] … 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 …

(Citations omitted)

21     Mahomed v R, above n 7.

[46]   The Crown refers to the comments of the minority in Mahomed, namely that the risk of unfair prejudice to the defendant arising out of evidence of other misconduct to the victim is likely to be less than with orthodox similar fact evidence.22 This is because the misconduct is usually not extraneous to the alleged offending and thus the associated evidence will not portray the defendant as being generally of bad character.23 As the Court of Appeal subsequently stated in Perkins, “[t]he risk of unfair prejudice associated with such evidence is likely to be less than with orthodox similar fact evidence and is usually addressed simply by the judge warning the jury in general terms against being influenced by prejudice or emotion”.24

[47]   The Crown further submits that if the evidence of the April 2017 offending is adduced by way of an agreed statement of facts, any prejudice could be further limited.

[48]   Mr Hislop, on the other hand, submits that there is a high degree of unfair prejudice inherent in such evidence because the April 2017 offending is much more serious. He says in those circumstances it is unlikely that the jury will remain objective. However, I note that there is agreement between the Crown and defence as to the contents of an agreed statement of facts for the April 2017 offending. That document does not refer to the use of a knife or the injuries sustained by the complainant. The document says instead that Mr Coe “seriously assaulted her”. That reduces any prejudice.

[49]   In my view, the proposed propensity evidence is prejudicial to the appellant in an entirely relevant way. Again, referring to the Court of Appeal decision of Campbell-Joyce, the proposed evidence says nothing detrimental to Mr Coe that is not also relevant to the charges of assault with intent to injure and kidnapping. 25 In other words, it carries no unfair prejudice. The standard propensity directions will provide ample protection to Mr Coe’s fair trial rights.

[50]   Even if there were some unfair prejudice, I have assessed the probative value of the propensity evidence as high. It would outweigh any degree of unfair prejudice.

22     At [57](d).

23     At [57](d).

24     Perkins v R, above n 8, at [20].

25     Campbell-Joyce v R, above n 11, at [27].

Decision

[51]   The proposed propensity evidence is admissible in relation to both the charge of assault with intent to injure and the charge of kidnapping.

Gordon J