Sparks v Police - [2018] NZCA 530

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA522/2018
[2018] NZCA 530

BETWEEN	ADAM SHAY SPARKS Applicant
AND	POLICE Respondent

Hearing:	7 November 2018
Court:	Clifford, Dobson and Mander JJ
Counsel:	C J Tennet for Applicant K S Grau for Respondent
Judgment:	28 November 2018 at 3 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to apply for leave to bring a second appeal is granted.
BThe application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dobson J)

Following a judge alone trial in the District Court, Mr Sparks was convicted on three charges of burglary.[1] He has now applied, out of time, for leave to bring a second appeal against two of those convictions on a question of law.
[1]Police v Sparks [2017] NZDC 23172 [District Court judgment].
Mr Sparks’ convictions for the three burglaries were entered on 12 October 2017 and he was sentenced on 10 November 2017 to concurrent sentences of three years and three months’ imprisonment.[2] Mr Sparks’ first appeal against two of three convictions was dismissed in a judgment of Davidson J issued on 30 April 2018.[3]
[2]Police v Sparks [2017] NZDC 25585.
[3]Sparks v Police [2018] NZHC 872 [High Court judgment].
The application for leave to bring a second appeal was filed relatively soon after expiry of the time limit for doing so. As explained in an affidavit from Mr Sparks, the delay was caused by his difficulty in retaining counsel to act for him on the application. For the respondent, Ms Grau did not raise any prejudice and leave to bring the application out of time was not strenuously opposed. We therefore grant that application.
The respondent did, however, oppose the application for leave to bring a second appeal. It is that application which is the subject of this judgment.

The facts

On three Sunday nights in June and July 2015, burglaries were committed in three commercial premises in Christchurch: Animates, Coupland’s Bakery and Mitchelli’s Café. The modus operandi adopted on each occasion was the same. The burglar used tin snips to cut holes in the roofing iron, gained access from the roof into the ceiling cavity of each of the premises and from there into the office area where the weekend takings of the respective businesses were kept.
The evidence was the strongest in relation to the third of the burglaries, that of Mitchelli’s Café. This took place on 12 July 2015. The burglar broke through the ceiling plasterboard after gaining access through a hole cut in the roofing iron, removed a cash box containing $3,000 in cash and departed back out through the roof. CCTV footage showed the cash box being thrown from the roof. CCTV footage earlier on the same day recorded Mr Sparks and another person at the shopping complex, and the night time footage recorded two people of the same description wearing the same clothes. The footage…

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.

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Details

Case: [2018] NZCA 530
Decision Date: 28 November 2018 at 3 pm

CaseChat Overview and Summary

Adam Shay Sparks applied to the Court of Appeal of New Zealand for leave to bring a second appeal against two of his three burglary convictions. The appeal was out of time, and the delay was attributed to his difficulty in retaining counsel. The respondent did not raise any prejudice, and leave to bring the application out of time was not opposed. However, the respondent opposed the application for leave to bring a second appeal. The burglaries were committed in three commercial premises in Christchurch using the same modus operandi. The burglar used tin snips to cut holes in the roofing iron, gained access from the roof into the ceiling cavity, and from there into the office area where the weekend takings were kept. The Court of Appeal was required to decide whether the appeal involved a matter of general or public importance, or whether a miscarriage of justice may have occurred. The Court found that the use of propensity evidence in the case was not a matter of general or public importance, and there was no risk of a miscarriage of justice. The application for an extension of time to apply for leave to bring a second appeal was granted, but the application for leave to bring a second appeal was declined.

Orders