R v Cossey
[2017] NZHC 2040
•24 August 2017
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); and
(e)whether Mr Jones intentionally edited the video recording to remove evidence of the car race.
Background
[5] The following is based on the Crown’s summary of facts. While it is disputed by the defendants, it provides the necessary context for the present applications.
alternative to the manslaughter charges.
4 Land Transport Act 1998, s 22A(1), 36A(1)(a) and (3) and Crimes Act 1961, s 66. The maximum penalty is five years’ imprisonment or a fine not exceeding $20,000.
5 Land Transport Act 1998 ss 22(1), 36(1)(c) and (2) and Crimes Act 1961, s 66. The maximum penalty is five years’ imprisonment or a fine not exceeding $20,000.
6 Crimes Act 1961, s 117(e). The maximum penalty is seven years’ imprisonment.
The car race
[6] On the evening of Friday 24 June 2016, Mr Cossey was driving his Honda Integra. Mr Jones was in the front passenger seat. They were travelling north from Kihikihi. Also on the road that night was Mr Lance Robinson, driving his car, a Nissan Skyline. He had three passengers. They are the four victims.
[7] After leaving Te Awamutu, the Honda stopped at an intersection of Ohaupo Road and Ngaroto Road, approximately four kilometres north of Te Awamutu. Somewhere near this point, the Honda and the Nissan came together and both cars continued to travel north towards Hamilton. Near the Wild Thyme Café, the Nissan, followed by the Honda, passed a Honda Borneo, as well as a blue utility vehicle at speed in the northbound passing lane. The Nissan nearly collided with the blue utility during this passing manoeuvre. The Honda also passed the blue utility and pulled up alongside the Nissan. They continued to drive at high speed heading north, passing one another from time to time.
[8] At the end of the northbound passing lane, just before Jary Road, the Honda and Nissan passed a white Toyota Hilux at high speed. They then continued on to Ohaupo township and stopped near the Ohaupo takeaway shop. Meanwhile, the Toyota Hilux continued north, arriving at the northbound passing lane, just past Kaipaki Road. As the Toyota Hilux completed a passing manoeuvre from the passing lane, the defendants in the Honda and the victims in the Nissan passed it. The Nissan moved into the southbound lane in order to complete the passing manoeuvre. The Nissan, followed by the Honda, continued travelling at high speed in the northbound passing lane, overtaking a red Honda Civic vehicle.
[9] At about 9.52 pm, Mr Jones commenced a video recording on his iPhone, encouraging Mr Cossey to continue to race the Nissan. Both vehicles were travelling, by this stage, in excess of 150 km/h as they approached the intersection between Ohaupo Road and Penniket Road. The Nissan pulled into the southbound lane and passed the defendants in the Honda. Travelling south at this time was a Toyota Hiace driven by Matthew Scheepers. The driver of the Nissan lost control as he was about to take the slight left hand bend after Penniket Road. The Nissan fishtailed in the
southbound lane, skidding sideways into the front of the Toyota Hiace, which impacted on the passenger’s side of the Nissan. The four occupants of the Nissan were killed in the collision, and Mr Scheepers suffered serious injuries to his lower legs.
[10] After initially slowing down, Mr Cossey is alleged to have accelerated away and continued driving towards Hamilton. Mr Jones had continued to record the events on his iPhone throughout this time.
Interview with Mr Jones
[11] On 27 June 2016, the Police spoke to Mr Jones. He provided the Police with his iPhone. The duration of the video provided to the Police at that time was 11 seconds. Subsequent forensic examination of Mr Jones’ iPhone by the Police’s ‘Electronic Crime Laboratory’ has established the original video was 38 seconds in duration. The Crown alleges the video was edited at about 9.00 am on the morning of 27 June 2016 prior to Mr Jones’ interview. I will refer to this video as Video F.
[12] A second version of the video was provided to Police by counsel for Mr Cossey. It was also edited but is two seconds longer than the version Mr Jones provided to Police on his iPhone. The additional two seconds are at the end of the video clip.
The alleged propensity evidence
[13] The Crown seeks to produce five video clips created on Mr Jones’ iPhone, namely:
(a)Video A, dated 29 March 2016: This video is 12 seconds in duration. It is recorded by the driver of the vehicle, and shows the fuel gauge before moving to the tachometer and the speedometer. It records an initial speed of about 69 km/h and revs of about 5,000 rpm, before moving to a speed of 120 km/h.
(b)Video B, dated 14 April 2016: This video is 38 seconds in duration. Recorded by the front seat passenger of Mr Cossey’s vehicle, it commences at a red light, with the focus on the dash (and in particular
the speedometer and tachometer). At about the 16 second mark, the light changes to green and a race commences with a white vehicle. The video moves between the dashboard and the vehicle.
(c)Video C, dated 5 May 2016: This video is 52 seconds in duration, recorded by the driver of the vehicle. The focus of the video is on the tachometer and speedometer as it moves from zero up to 170 km/h.
(d)Video D, dated 22 May 2016: This video is 30 seconds in duration and is also recorded by the driver of the vehicle (which appears to be Mr Jones). It records the vehicle travelling at speeds up to 150 km/h, with focus moving between the road, tachometer and speedometer.
(e)Video E, dated 5 June 2016: It is 12 seconds in duration, and like Video clip D appears to be recorded by the driver of Mr Jones’ vehicle. It records the speedometer and a race with a white vehicle. The iPhone is held out the window to capture the speed and vehicles on the road.
The frame
[14]As the Supreme Court stated in Mahomed v R:7
[3] The rationale for the admission of propensity evidence rests largely, as William Young J says, on the concepts of linkage and coincidence. The greater the linkage or coincidence provided by the propensity evidence, the greater the probative value that evidence is likely to have. It is important to note, however, that the definition of propensity evidence refers to a tendency to act in a particular way or to have a particular state of mind. It is necessary, therefore, that the propensity has some specificity about it. That specificity, in order to be probative, must be able to be linked in some way to the conduct or mental state alleged to constitute the offence for which the person is being tried.
[15] Furthermore, the probative value of any propensity evidence must not be outweighed by any unfairly prejudicial effect. Section 43(3) and (4) of the Evidence Act 2006 sets out a number of factors to be weighed when assessing the probative value and prejudicial effect of the propensity evidence:
7 Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [3].
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:
(a)the frequency with which the acts, omissions, events, or circumstances that are the subject of the evidence have occurred:
(b)the connection in time between the acts, omissions, events, or circumstances that 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 that 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 that 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.
[16]As to prejudicial effect:8
[7] 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
8 At [7] (footnotes omitted).
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. With those introductory remarks, we turn to the circumstances of the present case.
Admissibility of recordings: Mr Jones
[17]Mr McWilliam for the Crown submits the video recordings are relevant to:
(a)the charge of perverting the course of justice because they assist the Crown in rebutting Mr Jones’ allegedly innocent explanation for the editing of the video recording the driving at the time of the car crash; and
(b)the driving related offending because they assist the Crown to show that Mr Jones:
(i)has a tendency to record video when he is car racing;
(ii)has a tendency to engage in car racing at high speeds; and
(iii)encouraged Mr Cossey’s driving.
[18]Mr Boot for Mr Jones contends:
(a)The fact that Mr Jones may have on other occasions filmed driving does not assist the jury in determining whether he edited the video recording of the crash to pervert the course of justice, and in fact would be an invitation to the jury to speculate.
(b)The video recordings add little to the Crown case. He points out the Crown has direct evidence from eye witnesses as to the actions of both defendants, including another passenger and drivers of other vehicles who witnessed the two cars on the evening of 24 June 2016.
(c)In respect of the other ten charges Mr Jones faces, any probative value does not outweigh prejudicial effect. In terms of s 43:
(i)With respect to frequency, five video recordings occurred between 29 March and 5 June 2016.
(ii)Mr Boot accepts there is some connection in time as the allegations relate to alleged offences which were committed on 24 June 2016.
(iii)In terms of the extent of similarity, video clips A, C, D and E are recorded by the driver, so are dissimilar to the present video. He accepts video clip B is similar insofar as it is a video recorded by a front seat passenger.
(d)In terms of prejudice, the video recordings are highly prejudicial to Mr Jones because the jury will place undue weight on evidence he is a “boy racer”.
Assessment
[19] I consider all video recordings are admissible propensity evidence against Mr Jones in relation to all charges.
[20] First, in respect of the perverting the course of justice charge, I accept all video recordings assist the Crown to rebut Mr Jones’ (anticipated) innocent explanation for editing the crash video. They show a distinct and clear tendency on Mr Jones’ part to record his or another driver’s speedometer and tachometer when driving at excessive speed. The absence of a similar content in the crash recording, given this tendency, raises a legitimate adverse inference in terms of the credibility of any purportedly innocent explanation for the editing.
[21] Second, the significance of the video recordings for the purpose of admissibility on this charge relies on Mr Jones’ tendency to record the speedometer
and tachometer, not the fact he is the driver or the passenger; on this charge the difference is not material.
[22] Third, frequency of recording, relevant similarity, and reliability (the source of the recording is not in dispute) are all strong factors weighing in favour of admissibility on this charge.
[23] Fourth, as to the driving related charges, the key issues in focus are whether Mr Jones was involved in a car race with the Nissan at the time of the crash, and whether Mr Jones encouraged Mr Cossey to race. As the Crown submits, all the video recordings show Mr Jones has a particular, very unusual tendency to be in a car (as driver or passenger) travelling at speeds well in excess of the speed limit and to, at the same time, record the experience. I acknowledge that only Video B relates to his actions as a passenger. This is relevant in terms of the coincidence and linkage to the key facts asserted by the Crown. But I do not think the difference materially impacts on the cogency of the videos (including Video F) in terms of showing that Mr Jones acted in a particular very unusual way that is directly relevant to an issue at trial, namely whether he was involved in a car race at the specific time of the crash.
[24] Fifth, while there is a risk the jury might be distracted by the “boy racing” aspect, I am satisfied that any unfair prejudice can be managed by jury direction. The probative value of the videos, if accepted by the jury as showing a tendency to engage car racing, including with Mr Cossey, is largely coterminous with its prejudicial effect. That is, in short, the point of it. Additionally, it should be obvious to a jury that just because Mr Jones has previously engaged in car racing and recorded it does not automatically mean that at the key moment, he was involved in or encouraging Mr Cossey to do it again. Finally, a direction explaining this to the jury, and one to disregard any bias toward “boy racers”, should be sufficient to ward off illegitimate prejudicial reasoning. For completeness, I observe the video is not probative of the issue of whether the racing was the substantial cause of death. But that is not a reason to exclude it.
Admissibility of recordings: Mr Cossey
[25] Mr McWilliam accepted only video B is admissible in the case against Mr Cossey. There is no evidential value in the other recordings in terms of the key issues in Mr Cossey’s trial. Mr McWilliam maintains nevertheless that Video B is directly relevant to Mr Cossey’s case as it shows a tendency to engage in car racing.
[26] Mr Morgan QC contends this single video has limited, if any, probative value in terms of the key issues confronting Mr Cossey. He says it does not tend to show Mr Cossey was engaged in car racing at the specific time of the crash or that his driving was a substantial cause of death. At most he submits it shows a generalised behaviour
– car racing – on one prior occasion over a very short duration. Conversely, the evidence is highly prejudicial – it will inevitably predispose the jury against Mr Cossey
– he will be branded a boy racer and will be unable to escape that brand.
Assessment
[27] I am satisfied the s 43 threshold requirements are met given Video B records actions of a very unusual character that bear directly on a key issue for the jury, namely whether Mr Cossey was car racing at the time of the crash. While it is a single prior event, applying the language of Mahomed, there are strong points of coincidence and linkage – the same unusual action (car racing and video recording) and the same two actors, with relatively strong connection in time (the videos having been recorded only about two months apart). There is no issue as to reliability or collusion. Notably also, there will be other evidence before the jury suggesting the Honda driven by Mr Cossey was driving at high speed on the night in question with Mr Jones as his passenger. Against this background, the Crown may legitimately invite the jury to consider whether Mr Cossey is simply the victim of coincidence or was in fact engaged in another car race at the time of the crash.
[28] I accept that in Mr Cossey’s case there is a risk of unfair prejudice. Mr Cossey’s actions in Video B carry the hallmarks of a “boy racer”. But the probative value of the evidence that Mr Cossey has a tendency to engage in car racing is largely coterminous with its prejudicial effect. Furthermore, as noted, it should be obvious to a jury that evidence of car racing on a single previous occasion by itself is not direct
evidence of car racing at the time of the crash. A direction explaining this to the jury, and to put aside any bias against “boy racers”, should be sufficient to mitigate any residual unfair prejudice.
Cumulative prejudice
[29] I accept there is the potential for the jury to directly draw on the video evidence adduced in Mr Jones’ case in making adverse inferences about Mr Cossey in relation to the driving charges. This however should also be capable of management: I am satisfied that a properly directed jury will resist using the evidence of Mr Jones’ tendency to drive at speed and record it as direct evidence that Mr Cossey was engaged in car racing on the night in question.
Substantial cause of death
[30] I accept the videos are not probative of whether the racing was the substantial cause of death. But, that is not a reason to exclude it in the circumstances of this case and given its clear relevance to an antecedent factual issue.
Section 147 application
[31] Mr Boot also applies for the driving related charges in respect of Mr Jones to be dismissed.9 This application is made pursuant to s 147 of the Criminal Procedure Act 2011. He submits there is no evidence, except the video recording, to show Mr Jones encouraged Mr Cossey to engage in car racing.
[32] I can deal with this summarily. The evidence supporting the Crown case includes two video recordings (including the video on the night) by Mr Jones from which an inference might be drawn that Mr Jones actively encourages others to engage in car racing. Whether of course the recording of such actions “encourage” others to do it is a matter of inference, drawing on life experience. That is quintessentially a question for a jury. As I have observed, the remaining four videos are probative of whether Mr Jones has a tendency to engage in car racing. Furthermore, there is also witness evidence placing Mr Jones in the car at the time of the crash and witness
9 Charges one to ten in the Crown charge notice.
evidence that the Honda was seen speeding at various points of the journey it took on the night of the crash. In combination, this is clearly sufficient to satisfy the threshold test for the purpose of trial: the evidence is such that a reasonable jury could convict. Conversely this is not a case which is clear cut in favour of the defendant.10
Orders
[33]All videos (A-E) are admissible against Mr Jones on all charges.
[34]Video B only is admissible against Mr Cossey.
[35] Jury direction will be needed in terms of the limited use to which Videos A and C-E may be put. A prejudice direction will also be necessary.
[36] The application by Mr Jones to have charges one to ten against him dismissed is declined.
Addendum
[37] One aspect that was not argued at length relates to the extent to which Videos A, C – E are relevant to the issue of whether Mr Jones encouraged Mr Cossey (as distinct from the issue of car racing per se). Presently, I do not consider that they show a tendency to encourage other drivers to engage in car racing. As I have not heard full argument on this, I simply invite counsel to consider this aspect and it is a matter that should be brought to the attention of the trial judge.
10 Criminal Procedure Act 2011, s 147(4)(c) and Parris v Attorney-General [2004] 1 NZLR 519 (CA) at [14].
0