R v Cooper
[2007] NZCA 481
•2 November 2007
ORDER PROHIBITING PUBLICATION OF JUDGMENT OR THE REASONS THEREFOR IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED
IN THE COURT OF APPEAL OF NEW ZEALAND
CA 361/07 [2007] NZCA 481
THE QUEEN
v
MERRICK RICHARD COOPER
Hearing: 10 October 2007
Court: Hammond, Baragwanath and Keane JJ Counsel: E Hall for Applicant
F E Guy-Kidd and S K Barr for Crown
Judgment: 2 November 2007 at 11 am
JUDGMENT OF THE COURT
A The appeal is allowed in part.
B Evidence of the second bag is excluded ([25]).
C The brief of Senior Constable Gibson should be expressed as recorded in
[22]-[23].
D In all other respects the appeal is dismissed.
R V COOPER CA CA 361/07 2 November 2007
EAn order is made prohibiting publication of this judgment or the reasons therefor in the news media or on the internet or in any other publicly accessible database until final disposition of the trial. Publication in law
report or law digest permitted.
REASONS OF THE COURT
(Given by Baragwanath J)
Introduction
[1] The applicant faces trial on counts which include theft of a motor-vehicle. He seeks leave to appeal against a pre-trial ruling of Judge Kelly admitting expert evidence that tools contained in two bags found in the applicant’s home are of a kind commonly used by car thieves and that one is a kit of specific tools put together for the purpose of stealing motor-vehicles.
Context
[2] When the stolen vehicle was recovered:
a) there was no evidence of damage to the vehicle suggesting that there had been a forcible entry;
b)the ignition barrel had been broken off and was lying on the floor of the car.
[3] Of particular note is that the first bag, a green Camelbak pack, contained a set of distinctive keys clearly identified as the property of the owner of the car. The brief of the expert witness, Senior Constable Gibson, describes other items found in that bag. His description of their purpose is italicised:
iMetal ruler with modified ends… is a “slim jim” “which is used to gain access to locked vehicles”.
It had been modified at each end and turned into a slide bar. Such tool is used to gain access to a locked vehicle through the weather seal strip on an exterior door to the internal door-locking mechanism and the hook is used to pull the lock open.
iiRed handled pipe wrench… is “the preferred tool used by car thieves to remove ignition barrels and steering locks”.
This is a tool used by car thieves to remove ignition barrels to expose the ignition switch and allow the vehicle to be started without a key.
iii. Orange handled multi-grip pliers… are able to be used for fine adjustments of grip where the pipe wrench won’t work “the preferred tool used by car thieves to remove ignition barrels and steering locks”.
iv. Silver hacksaw… is “commonly used by car thieves to remove after market steering wheel locks”.
v. Brass spring loaded centre punch… “is used by car thieves to break toughened glass windows. The thieves preference for this tool is that when used it is virtually silent.”
vi. Small electrical test light and lead… “this tool is used to identify live wires and immobilizer circuits to obtain ignition to enable the vehicle to be started once again without a key.”
vii. Roll of black insulation tape is “used to cover and secure wires which have been cut and joined together when bypassing either the ignition or immobiliser systems of the vehicle.”
16.Also located in the Camelbak bag were screwdrivers, pliers, an adjustable wrench, a spanner and what appears to be a set of Al[le]n keys... The Constable describes the screwdrivers as “principally used to remove plastic cowlings… to allow access to the ignition switch.”
[4] The second bag contained what the senior constable described as:
…a large number of other miscellaneous tools. This bag also contains a number of tools which are able to be used in the theft of motor-vehicles. This bag appears to be more of a tradesman’s toolbag than… the green backpack.
[5] The senior constable said that there was no evidence that the slim jim, the pipe wrench or the multi-grip pliers were actually used on the complainant’s vehicle but the fact that it was opened without causing damage and that its ignition barrel was forcibly removed is suggestive of the use of such or similar tools. A photograph
of the contents of the first bag showed that the spanner is double-ended, open at one end and with a ring at the other end.
[6] The senior constable’s brief states:
I believe the green bag is a kit of specific tools put together for the purpose of stealing motor-vehicles.
It did not refer specifically to whether and if so how that spanner or the Allen keys are used by car thieves.
[7] There is no reason to have used in relation to the theft in this case any of the items in the green bag other than the slim jim, the pipe wrench or the multi-grip pliers or any of those in the second bag.
Submissions
[8] Ms Hall acknowledged the difficulty of resisting admission of the photograph of the tools in the green bag among which the complainant’s keys were found. Nor did she challenge the proposed evidence that the slim jim, the pipe wrench or the multi-grip pliers were of a kind that could have been used to get access to the car and to remove the ignition barrel. But she submitted that the proposed evidence of the use to which the other items in that bag could be put, and the opinion that it was a kit put together for the purpose of stealing motor cars, were of such little relevance that its improperly prejudicial effect outweighed any probative value. She submitted that the second bag was of no relevance whatever.
[9] Ms Guy-Kidd submitted that the evidence as to the character of the green bag and its contents went directly to the issue of whether the applicant stole the car. She argued that the second bag was relevant as establishing a contrast between an innocuous toolbag and the theft kit in the green bag so as to show how unusual the latter is: Evidence Act 2006 s 43(1)(f). She submitted that s 25(1) of the Evidence Act has extended the common law in permitting any evidence of expert opinion likely to be of substantial help to the jury, including that proposed to be given by the senior constable.
[10] By s 7 of the Evidence Act all relevant evidence is admissible. That rule is subject to the exclusion in s 8 that evidence must be excluded if its probative value is outweighed by the risk that the evidence will have an unfairly prejudicial effect on the proceeding. O’Brien v Chief Constable of South Wales [2005] 2 AC 534 illustrates the kind of issues to which that section may give rise. Other provisions of relevance include s 25 which permits the admission of expert evidence if the jury is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding and ss 40 and 43.
[11] They state that evidence that tends to show a person’s propensity to act in a particular way is admissible against a defendant only if its probative value outweighs the risk that the evidence may have an unfairly prejudicial effect such as unfairly predisposing the jury against the defendant and inclining it to give disproportionate weight to other evidence. Section 43(1) requires the exclusion of propensity evidence if its probative value is outweighed by the risk that the evidence will have an unfairly prejudicial effect on the defendant. While it is early days, it is likely that such familiar authorities as R v Holtz [2003] 1 NZLR 667 (CA) will be relevant to the decision. As always, evidence rulings are fact-specific and may require modification if different evidence is led at trial.
[12] Section 43(3) and (4) of the Act provide:
43 Propensity evidence offered by prosecution about defendants
…
(3) When assessing the probative value of propensity evidence, the
Judge may consider, among other matters, the following:
…
(c) the extent of the similarity between… circumstances which are the subject of the evidence and the… circumstances which constitute the offence for which the defendant is being tried:
…
(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.
Analysis
[13] The slim jim, pipe wrench and multi-grip pliers found together with the keys constitute circumstantial evidence which, in terms of s 7, is relevant as tending to prove how the vehicle containing the keys had been opened and how its ignition barrel had been removed. The keys link those items with the car.
[14] Without the evidence of the keys there would be no sufficient nexus to link either the tools or the applicant as their owner with the theft. But the fact that there were found in immediate conjunction the keys and the slim jim, pipe wrench and multi-grip pliers provides close links among the stolen vehicle, the keys removed from it, tools of the kind needed to open the car and remove the ignition barrel and other tools commonly used by car thieves. Senior Constable Gibson’s expert evidence, if admitted, would establish a tight nexus among the items contained in the green bag as a group of tools, each of them of a kind used by car thieves.
[15] In considering the application of s 43 (especially sub-section (4)) care must be taken not to:
…offend… against one of the most deeply rooted and jealously guarded principles of our criminal law, which, as stated in Makin v Attorney-General for New South Wales [1894] AC 57, 65, is that “it is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried”.
Maxwell v Director of Public Prosecutions [1935] AC 309 at 317 per
Viscount Sankey LC
…such an underlying unity between the [transactions] as to make coincidence an affront to common-sense
or if:
… the view that something is a coincidence…is against all the probabilities if the accused person is innocent:
R v Boardman at 453 citing Lord Simon of Glaisdale in R v Kilbourne [1973] AC 729, 759, and Hallett J in Reg v Robinson 37 Cr App R 95, 106-7 cited by Sir Rupert Cross in Evidence (3rd ed) p 316.
In those circumstances the propensity evidence may be used to strengthen the prosecution case.
[17] In applying s 43 a careful balancing exercise must be undertaken. It is necessary to focus sharply on the particular facts and issues. As was stated by Cooke J in R v Hsi En Feng [1985] 1 NZLR 222, 225:
[The propensity evidence] must have additional truly cogent probative force on some issue or issues in relation to each charge on which it is admitted.
It follows that the more propensity evidence tends to support the prosecution case in a manner that is directly probative, the higher the prospect of securing its admission. Equally, the greater the risk of improper prejudice from such evidence, the more likely it is to be rejected.
[18] Turning to the question of expert evidence, since 1 August 2007
New Zealand law is as stated in the Evidence Act:
25 Admissibility of expert opinion evidence
(1) An opinion by an expert that is part of expert evidence offered in a proceeding is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.
(2) An opinion by an expert is not inadmissible simply because it is about—
(a) an ultimate issue to be determined in a proceeding; or
(b) a matter of common knowledge.
…
“Expert” is defined as meaning “a person who has specialised knowledge or skill based on training, study or experience”.
[19] Witnesses are ordinarily limited to what they can discern with one of the five senses. But experts may go further and give opinion evidence on proved facts within their own science: Folkes v Chadd (1782) 3 Doug KB 157 at 159; 59 ER 589 at 590 per Lord Mansfield CJ.
[20] As to what is sufficient expertise for the Court to permit opinion evidence, Freckelton and Selby “Expert Evidence” (3rd ed) 45 propose:
…a simple question… - does the expert have sufficient knowledge to qualify him or her as skilled enough to help the Court?
That is consistent with the leading decision R v Silverlock [1894] 2 QB 766 at 769 per Vaughan Williams J:
No one should be allowed to give evidence as an expert unless his profession or course of study gives him more opportunity of judging than other people.
But as appears from the decision in that case, that a solicitor might give expert evidence as to hand-writing, the words “profession or course of study” have a wide meaning and application: Clark v Ryan (1960) 103 CLR 486 at 492.
[21] We accept as correctly stating the law before and after the enactment of the
Evidence Act the statement by Cross at EVA25.4:
…the overriding question is whether the witness can give evidence which is helpful to the court, i.e. which is relevant and reliable…
[22] We consider that the expert evidence of the senior constable in relation to the contents of the green bag is likely to give the jury substantial help in understanding the relationship between the use of the slim jim and the multi-grip pliers. As regards the remainder of the contents of the bag we consider the evidence to show the possession of a car theft kit which it would revolt common-sense to exclude. But although s 25(2)(a) allows the Court to admit an opinion of an expert on an
ultimate issue, propensity evidence ought not to extend beyond what is reasonably necessary to assist the jury’s comprehension of the evidence. While we find it unnecessary to embark on a comparison of the former and current law, regard must be had to the basic principle that fact-finding is for the jury. Insofar as the issue is one which the jury is well capable of determining there is no need for expert opinion upon it.
[23] We therefore do not accept the formula:
I believe the green bag is a kit of specific tools put together for the purpose of stealing motor-vehicles.
which states what is close to an ultimate issue.
[24] Rather a more balanced formula should be applied such as:
Each item in the green bag is capable of use by a car thief.
The jury may without difficulty be left to draw what they regard as the appropriate inference.
[25] The second bag and its contents do not constitute a car theft kit. We do not regard the evidence of a general collection of tools as satisfying the high standard required for admission as propensity evidence. We do not accept the argument that it provides a helpful comparison with the green bag: the same could be said of any collection of tools. That bag and evidence about it will be excluded as irrelevant.
Decision
[26] We give leave to appeal but with the exclusion of evidence of the second bag
([22]) and the minor modification referred to in [22]-[23] the appeal is dismissed.
Solicitors:
Crown Law Office, Wellington