R v Lawson
[2017] NZHC 870
•4 May 2017
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2016-096-2451 [2017] NZHC 870
THE QUEEN
v
MANA LAWSON
Hearing: 7 April 2017 Counsel:
A Britton for Crown
L Scott for DefendantJudgment:
4 May 2017
JUDGMENT OF ELLIS J
[1] Mr Lawson faces two charges of driving while disqualified, two charges of unlawful taking of a motor vehicle, and one of aggravated robbery. His trial (on all charges) is scheduled to begin on 31 July. Pre-trial issues have arisen in relation to severance and cross-admissibility of propensity evidence.
Facts
[2] The account which follows is largely taken from the Police Summary of Facts.
[3] Mr Lawson was disqualified from driving for nine months on 22 January 2016.
R v LAWSON [2017] NZHC 870 [4 May 2017]
[4] On 27 June 2016, a white Nissan Pulsar (BBH191) belonging to Mr Jonty Tong was stolen from outside his house in the Aro Valley.
[5] It is alleged that on 30 June Mr Lawson drove the Nissan to Queen Street, Petone, at approximately 11.25 am. He parked outside Westpac Bank. He used some clothes found inside Mr Tong’s car to disguise himself. He covered his face so only his eyes were exposed, covered his shoes with socks and wore gloves. He went into the bank, pointed a knife at a teller and demanded $10,000 cash. Another teller handed him approximately $1,295. He demanded cash from a third teller who gave him approximately $1,185. He left the bank and got into the stolen Nissan. He drove onto Jackson Street and was seen travelling at speed on Kensington Avenue. Police later located the stolen car in Bracken Street, Petone, where Mr Lawson lives.
[6] These events led to charges of driving while disqualified, unlawful taking of a motor vehicle, and aggravated robbery (charges three to five, which I refer to as the
30 June charges).
[7] On 30 June (the same day as the bank robbery), Ms Kavithaa Surendran reported that her white Nissan Pulsar (EJL890) had been stolen from Strathmore.
[8] On 12 July, Mr Lawson was seen by Sergeant Gerry Watson driving a white Nissan Pulsar with that registration plate on Graham Street, Petone (one street over from Bracken Street). Police followed the car for a short time before it evaded them. A short time later it was found dumped at the rear of an address in Walters Street, Naenae, and Mr Lawson was found by police a short distance away. He was carrying a black Nike bag which contained a pair of Nike football boots, matching the description of boots belonging to Mr Tong, which had been inside his car when it was stolen.
[9] These events gave rise to further charges of driving while disqualified and unlawful taking of a motor vehicle (charges one and two, which I shall refer to as the
12 July charges).1
1 The charge notice confusingly refers to the second unlawful taking have occurred on 12 July.
Procedural history
[10] Mr Lawson has applied for the 12 July charges to be severed from the 30 June charges. The Crown’s opposition included the contention that its proposed reliance on cross-propensity evidence militated against severance. A formal propensity application was later filed.
Law
[11] Section 138(4) of the Criminal Procedure Act 2011 (CPA) provides that the Court may order that one or more charges against a defendant be heard separately. The relevant principles were summarised in Churchis v R as follows:2
(a) Offending that is unrelated in time or circumstance should not be tried together, unless the evidence of one incident is relevant to another to an extent that its probative value outweighs its prejudicial effect. That relevance may arise in a variety of circumstances, such as where the facts are so similar or the allegations interconnected to a point that it would be artificial to present them separately.
(b) Joinder may be granted if evidence relevant to one count is also relevant to one or more other counts.
(c) The practicalities of the criminal process may be taken into account including the degree of connection between the charges; the impact of successive trials on the accused and witnesses; and the likely effect of publicity of the first and subsequent trials.
(d) Prejudice to the accused is a factor to be taken into account. The fact that the accused may be obliged to give evidence is a relevant but not a decisive consideration.
(e) The discretion is wide. In the end, what is required is a balancing between the legitimate interests of an accused and the public interest in the fair and efficient despatch of the Court's business.
[12] If the charges are cross-admissible on a propensity basis, it is unlikely to be in the interests of justice to order separate trials.3
[13] The test for admissibility of propensity evidence is in s 43 of the Evidence Act
2006:
43 Propensity evidence offered by prosecution about defendants
2 Churchis v R [2014] NZCA 281, (2014) 27 CRNZ 257 at [28] (footnotes omitted).
3 R v Banks [2011] NZCA 469 at [12].
(1) The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.
(2) When assessing the probative value of propensity evidence, the Judge must take into account the nature of the issue in dispute.
(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.
[14] If evidence is admissible under s 43, s 8 must still be considered. Under that section, the evidence must be excluded if its probative value is outweighed by the risk that it will have an unfairly prejudicial effect on the proceeding or needlessly prolong the proceeding.
Discussion
[15] The matter in issue on all charges will be one of identity. In other words,
Mr Lawson denies that he stole either of the cars and he denies robbing the bank.
[16] In my view severance is not in the interests of justice here. I say that both because of the inextricable factual linkages between the two groups of offending and also on orthodox propensity grounds. I elaborate below.
[17] First, the Nike football boots found in Mr Lawson’s possession on 12 July are directly relevant to the issue of identity in respect of the 30 June taking charge, because Mr Tong (the victim of the earlier, 30 June, offending) will say that they are his (or identical to his). In turn, this linkage to the taking of Mr Tong’s car creates a linkage to the bank robbery, because Mr Tong’s car was used in the robbery. That link will be strengthened by:
(a) Mr Tong’s evidence that the football jersey worn in the robbery matches a jersey left in his vehicle before it was stolen; and
(b)the fact that Mr Tong’s car was later found on Bracken Street, which is the street on which Mr Lawson lives.4
4 Other evidence relied on in that respect will be that (a) physical descriptions given of the robber match Mr Lawson; (b) Mr Lawson was observed spending large amounts of money shortly after the robbery was committed, despite him having limited sources of income and (c) the robbery occurred at 11.30 am. Mr Lawson was late for an appointment with his probation officer at midday and he arrived with a number of recently purchased items.
[18] I also consider that the evidence relating to each of the unlawful taking charges is cross-admissible in relation to the other as propensity evidence. The evidence relating to the 12 July offending is therefore directly relevant to the issue of identity in respect of the 30 June offending and vice versa. I agree with the Crown that the evidence meets the s 40 definition of propensity evidence, because the allegations that Mr Lawson has unlawfully taken very similar vehicles on two separate, but almost contemporaneous, occasions tend to show that he has a propensity to offend in this way. More specifically, in terms of the s 43(3) factors:
(a) there are two allegations;
(b)the two taking offences were closely connected in time (three days apart);
(c) as to similarity:
(i) the cars were the same make and model;
(ii)Mr Lawson is alleged to have abandoned both cars after using them;
(iii)he is alleged to have abandoned one car and driven the other in close proximity to his residential address;
(iv)the ignition barrels of both cars showed evidence of tampering with;
(d) two people have made the (similar) allegations;
(e) there is no evidence of collusion between Mr Tong and Ms Surendran;
(f) the acts involved are somewhat distinctive in that both cars taken are the same colour, make and model.5
5 Although care must be taken not to give this point too much weight, given the likelihood that cars of a certain make and model are easier to convert.
[19] Ms Scott (acting on instructions from Ms Hall) submitted for Mr Lawson that the admission of this cross-propensity evidence would unfairly prejudice Mr Lawson’s defence. She said that the cross-admission of the evidence would allow one weak circumstantial allegation to be bolstered by a second weak circumstantial allegation. The jury could use the propensity evidence wrongly to conclude that if Mr Lawson is the type of person to steal multiple cars then he is more likely to be a dishonest person and therefore more likely to rob a bank. She said that the critical charge is aggravated robbery. The unlawful taking charge concerning Mr Tong assists in identifying Mr Lawson as the person responsible for the robbery. But to allow the evidence of the second unlawful taking in as propensity evidence in relation to the taking of Mr Tong’s car taking would unfairly bolster the Crown case on the aggravated robbery charge. She proposed that this prejudice could be avoided by a limited s 9 admission, that Mr Lawson was found in possession of boots on 12 July that are alleged to be the same as the ones in Mr Tong’s car.
[20] But I do not accept that this is the only relevant aspect of the 12 July charges to the 30 June charges. The cross-propensity analysis above demonstrates that. I consider the 12 July taking charge in its entirety is relevant to the 30 June taking charge and (therefore) to the aggravated robbery charge. And the reality is that the alleged events giving rise to all the charges form an important (and in my view, inextricable) factual narrative.
[21] In my view, therefore, the undoubted prejudice to Mr Lawson which would arise from having both unlawful taking charges heard together is not, in my view, unfair or illegitimate. While I accept that the evidence of the connections between the two events will present difficulties for him in terms of his defence to the robbery charge, any such prejudice is the natural consequences of the very clear linkages between the two groups of offending and of the probative value of the evidence itself.
[22] The application for severance is declined and the cross-propensity application
is granted accordingly.
Rebecca Ellis J
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