R v Cooper - [2007] NZCA 481

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.…

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 R v Cooper

Details

AGLC: R v Cooper [2007] NZCA 481
Case: [2007] NZCA 481
Decision Date: 2 November 2007

CaseChat Overview and Summary

The case of R v Cooper is an appeal against a pre-trial ruling admitting expert evidence about tools found in the applicant’s possession. The applicant faces charges including theft of a motor vehicle. The legal issues before the Court of Appeal of New Zealand were whether the evidence of the tools, and the expert's opinion that they formed a kit for stealing motor vehicles, was admissible under the Evidence Act. The Crown argued that the evidence was relevant and helpful to the jury, while the defence submitted that it was overly prejudicial and of little probative value. The Court held that the evidence of the slim jim, pipe wrench, and multi-grip pliers in the green bag was relevant and admissible as it linked the tools to the stolen vehicle. However, the opinion that the bag was a kit for stealing motor vehicles went beyond what was necessary to assist the jury and should be excluded. The evidence of the second bag was deemed irrelevant and prejudicial and was excluded. The Court granted leave to appeal with the exclusion of evidence of the second bag and a minor modification to the expert's evidence. The appeal was otherwise dismissed.

Orders