Sparks v Police - [2018] NZHC 872

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-409-153 [2018] NZHC 872

BETWEEN
ADAM SHAY SPARKS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 12 April 2018

Appearances:

S L Litt for the Appellant

C White and S Bicknell-Young for the Respondent

Judgment:

30 April 2018

JUDGMENT OF NICHOLAS DAVIDSON J

FINAL AS TO APPEAL AGAINST CONVICTION APPEAL AGAINST SENTENCE ADJOURNED

Appeal

[1] On 12 October 2017, Mr Sparks was convicted on three counts of burglary relating to commercial premises in Christchurch between mid-June and mid-July 2015.1 On 10 November 2017, His Honour Judge Saunders sentenced him to concurrent sentences of three years three months imprisonment on each charge, with no orders for reparation given his financial situation.2

1 Police v Sparks [2017] NZDC 23172; Crimes Act 1961, s 231(1)(a), maximum penalty 10 years imprisonment.
2 Police v Sparks [2017] NZDC 25585.

SPARKS v NEW ZEALAND POLICE [2018] NZHC 872 [30 April 2018]

[2] Counsel had made a pretrial application for severance of one of the charges (the “Mitchelli’s” charge) from the other two (the “Animates” and “Coupland’s” charges). His Honour Judge Callaghan refused that application on the basis that the “general modus operandi between the index offending and the other two charges is so remarkably unique that it would appear so unlikely that another person(s) would be involved in this type of offending”.3

[3] Mr Sparks accepts the Mitchelli’s conviction but appeals against the convictions on the Animates and Coupland’s charges, on the grounds that:

(a)the Judge erred in refusing to sever the Mitchelli’s charge from the other two charges, as this led to wrongful admission of propensity evidence; and

(b)because the propensity evidence was wrongfully admitted, the convictions on the Animates and the Coupland’s charges were “unreasonable”.

[4] While counsel for the appellant uses “unreasonable” as the test for an appeal against conviction following a Judge-alone trial, the correct test is whether the Judge erred in the assessment of evidence to such an extent that a miscarriage of justice has occurred, or that a miscarriage of justice has occurred for any other reason.4

[5] Mr Sparks appeals against the sentence imposed, but submissions have been deferred pending this judgment on appeal.

[6] He swore an affidavit about comments he made at a pre-sentence interview. He says this was conducted by video link with poor sound quality. It was suggested that Mr Sparks admitted the charges and apologised for his actions. He says he was only admitting and apologising for the Mitchelli’s charge, and I do not consider the alleged admissions can influence this appeal at all.

3 Police v Sparks [2017] NZDC 3769.
4 Criminal Procedure Act 2012, s 232(2)(b)-(c).

Facts

[7] The sequence of the offending must be understood over five weeks, spanning three weekends. The last offence, Mitchelli’s, is addressed first, as it is admitted by the appellant and the propensity evidence derives from proven facts which include the Mitchelli’s charge.

[8]…

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] NZHC 872
Decision Date: 30 April 2018

CaseChat Overview and Summary

Adam Shay Sparks appeals against his conviction and sentence for three counts of burglary. The High Court of New Zealand was required to determine whether the District Court erred in refusing to sever one of the charges from the other two, and whether the convictions were unreasonable due to the wrongful admission of propensity evidence. The Court had to assess whether the similarity in modus operandi was sufficient to link the appellant to the other charges, and whether the evidence supported the convictions. The High Court found that the District Court did not err in refusing to sever the charges, and that the convictions were supported by the evidence. The propensity evidence, alongside the Facebook evidence, was sufficient to convict Mr Sparks of the Animates charge, and the similarity in offending was compelling evidence of his guilt on the Coupland's charge. The appeal against conviction was dismissed. The appeal against sentence was adjourned pending further submissions.

Orders