R v Cossey - [2017] NZHC 2040

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES OR IDENTIFYING PARTICULARS OF RESPONDENTS UNTIL THE FINAL DISPOSITION OF TRIAL.

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2016-019-007230

[2017] NZHC 2040

BETWEEN
THE QUEEN

Applicant

AND

DYLAN COSSEY AND STEPHEN JOHN JONES

Respondents

Hearing: 16 August 2017

Counsel:

D McWilliam for Crown

P Morgan QC and M Jepson for defendant Cossey R Boot for defendant Jones

Judgment:

24 August 2017

JUDGMENT OF WHATA J

This judgment was delivered by me on 24 August 2017 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Almao Douch, Hamilton

THE QUEEN v COSSEY AND JONES [2017] NZHC 2040 [24 August 2017]

[1] Mr Jones and Mr Cossey face a number of charges relating to a car crash that killed four people. The Crown alleges, among other things:

(a)Mr Cossey was in a car race with the occupants of a Nissan Skyline when it crashed;

(b)Mr Jones was a passenger in Mr Cossey’s car and encouraged him to race the other car;

(c)Mr Jones video recorded the race and the crash; and

(d)Mr Jones edited the video to exclude any recording of the speedometer and tachometer in the moments leading up to the crash.

[2]I have before me two pre-trial applications, namely:

(a)An application to adduce propensity evidence in the form of multiple video recordings by Mr Jones of the speedometer and tachometer in vehicles he is either driving or a passenger in, travelling at high speed. In one of the videos Mr Cossey is the driver.

(b)An application by Mr Jones to have charges one to ten against him dismissed on the basis there is no evidence supporting them.1

The charges

[3]Mr Jones and Mr Cossey are facing the following charges:

(a)four charges of manslaughter;2

(b)four charges of unnecessary exhibition of speed or acceleration causing death;3

1      Mr Boot for Mr Jones does not seek dismissal of the attempting to pervert the course of justice charge.
2      Crimes Act 1961, ss 66, 158, 160, 171 and 177. The maximum penalty is life imprisonment.
3      Land Transport Act 1998, ss 22A(1), 36A(1)(a) and (3) and Crimes Act 1961, s 66. The maximum penalty is 10 years’ imprisonment or a fine not exceeding $20,000. These charges are also an

(c)one charge of unnecessary exhibition of speed or acceleration causing injury;4

(d)one charge of failing to stop or ascertain injury after crash;5 and

(e)Mr Jones is also charged with attempting to pervert the course of justice.6

[4]The central issues at trial will be:

(a)whether the defendants were involved in a car race with the occupants of the Nissan;

(b)whether Mr Cossey was a party to the car race as a principal, and/or as a party to the deceased driver’s racing;

(c)whether Mr Jones encouraged Mr Cossey to car race with the occupants of the Nissan;

(d)whether the actions of the defendants were a substantial operating cause of the Nissan crashing (and therefore of the death of the four deceased);…

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 Cossey

Details

AGLC: R v Cossey [2017] NZHC 2040
Case: [2017] NZHC 2040
Decision Date: 24 August 2017

CaseChat Overview and Summary

In the case of The Queen v Cossey and Jones, the High Court of New Zealand considered the admissibility of propensity evidence in the form of video recordings made by Stephen John Jones, a passenger in a car driven by Dylan Cossey, which captured high-speed driving and car racing. The Crown sought to use these videos to show Jones's tendency to engage in high-speed driving and car racing, and to rebut his explanation for editing a video of the crash that resulted in four deaths. The respondents argued that the evidence was prejudicial and not probative of the charges against them. The central issues were whether the propensity evidence was relevant, whether its probative value outweighed its prejudicial effect, and whether it could be sufficiently managed by jury directions.

The Court held that all the video recordings were admissible against Jones on all charges. The recordings demonstrated Jones's tendency to record high-speed driving and car racing, which was relevant to both the charge of perverting the course of justice and the driving-related charges. While there was a risk of unfair prejudice, the Court believed that proper jury directions could manage this risk. As for Cossey, only one video was admissible against him, as it directly related to a key issue in his trial—whether he was engaged in car racing at the time of the crash. The Court acknowledged the potential for unfair prejudice but found that the probative value of the evidence was largely coterminous with its prejudicial effect. Proper jury directions were deemed sufficient to mitigate any unfair prejudice.

Finally, the Court denied Jones's application to dismiss the charges against him, finding that the evidence, including the video recordings, was sufficient to meet the threshold test for trial. The Court invited counsel to further consider whether the videos showed a tendency to encourage other drivers to engage in car racing and directed that this matter be brought to the attention of the trial judge.

Orders