Sparks v Police
[2018] NZHC 872
•30 April 2018
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] Around midnight on Sunday 12 July 2015, the office area of the Mitchelli’s Café in the Tannery shopping complex was unlawfully entered through the roof by Mr Sparks. He used tin snips to cut through the roofing iron, to get into the ceiling cavity. He then broke through the ceiling plasterboard into the office area. He found the company cash box and removed it, leaving the premises through the roof. CCTV footage records a safe being thrown from the roof area to the ground. Mr Sparks climbed off the roof and left with the cash box which held $3,000 cash.
[9] The evidence against Mr Sparks was strong, which was important when the Court used this charge as propensity evidence for the other two charges. CCTV footage identified two people, one of whom the Police said was proved to be Mr Sparks, at the Tannery earlier during the day of 12 July 2015, presumably scoping out the area. The night time footage records two people of the same descriptions, and wearing the same clothes as those seen earlier in the day. The footage captures a white station wagon with gold coloured spoke wheels driving through the car park. A stolen white station wagon with gold coloured spoke wheels, with Mr Sparks’ fingerprints inside, was found abandoned 350 metres from his house.
[10] Two weeks earlier, around midnight on Sunday 28 June 2015, the office of Coupland’s bakery was broken into through the roof. The offender cut through the roofing iron with tin snips to enter the ceiling cavity. He removed ceiling panels to get into the office. Using loose material, the offender obscured the security camera’s lens, located and broke the safe open and removed approximately $8,000. The safe itself was not removed.
[11] There is no other evidence linking Mr Sparks to this burglary, other than the modus operandi. The Judge found this sufficient to convict Mr Sparks of this offence.
[12] Two weeks before that, overnight between Sunday 14 and Monday 15 June 2015, Animates was broken into through the roof. The offender cut a hole through the roofing iron with tin snips and disabled the security system. The offender cut another hole through the ceiling and dropped into the toilet area, then cut a hole through to the office and located the company safe. He removed the safe which contained $6,000 cash and left, likely via the fire escape.
[13] Mr Sparks posted a picture to his Facebook account on August 13 2015 showing a small safe in the boot of a car. Below the photo was a comment from Mr Sparks’ account reading “Late nights in a benz”. A witness from Animates gave evidence that the safe in the picture matched the general description of the safe taken from Animates. This was treated as relevant evidence, but not evidence that it was definitely from Animates.
Jurisdiction and approach on appeal
[14]Mr Sparks appeals as of right to this Court. 5
[15] Section 232(2) of the Criminal Procedure Act 2011 provides that the High Court may only allow an appeal against conviction if satisfied that the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason”. A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.6
[16] Section 232 makes it clear that not every error or irregularity constitute a miscarriage of justice. Instead there must be a “real risk” that the outcome of the trial was affected. Sungsuwan v R defines a “real risk” as “a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.7
5 Criminal Procedure Act 2011, s 229.
6 Section 232(4).
7 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
[17] R v Condon held that a mere departure from good practice does not render a trial unfair.8 Instead the errors or irregularities must depart from good practice in a manner “so gross, or so persistent, or so prejudicial, or so irremediable” that the court must quash the decision.9
The decision refusing severance
[18] His Honour Judge Callaghan refused to sever the Mitchelli’s charge.10 If the Mitchelli’s charge was proved, the Police wanted to use the facts of it as propensity evidence for the other two charges. His Honour held, consistent with s 43(1) of the Evidence Act 2006, that the cross-propensity evidence between the charges was probative and would not cause unfair prejudice to the appellant, particularly in a Judge alone trial.
[19] The principles of joinder and severance under s 138 of the Crimes Act, were set out by the Court of Appeal in Churchis v R:11
[28] Counsel were agreed that the principles applicable under s 138(4) are materially the same as those under the former s 340 of the Crimes Act 1961. There are well settled and include the following:
(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.
8 Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [78].
9 Randall v R [2002] 1 WLR 2237 (PC) at [28], cited with approval by the Supreme Court in Condon v R at [78].
10 Police v Sparks, above n 3.
11 Churchis v R [2014] NZCA 281, (2014) 27 CRNZ 257.
(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.
[20] Citing Henderson v R,12 Banks v R13 and Joblin v R,14 the Judge noted that severance is generally not ordered where propensity evidence is to be led at trial, as was the case here.
[21] The Judge reproduced the table made up by counsel for the Police setting out similarities in the three burglaries.
Similarity Animates Store, Riccarton Coupland’s
Bakery, LinwoodMitchelli’s Café, Opawa Commercial premises Yes Yes Yes Burglary occurred overnight Sunday/Monday Yes
Unknown timeYes
Around 11.42pmYes
Around midnightDate of burglary 14/15 June 2015 28/29 June 2015 12/13 July 2015 Point of entry Via steel roof, tin snips used Via steel roof, tin snips used Via long run steel roof, tin snips used Method of entry Hole cut near office, door smashed to gain entry to office Hole cut above office, ceiling gib smashed to gain entry Hole cut above office, ceiling gib smashed to gain entry Alarm activation De-activated, cables cut De-activated, control box removed Activated Method of search Untidy Untidy Untidy Property targeted Cash Safe REMOVED Cash Safe
NOT REMOVED
Cash Safe REMOVED
[22] The timing, in weekends, and at night, close in time is one similar element. The point and method of entry is another. The neutralising of the alarm systems, or the attempt to do so is another.
12 Henderson v R [2016] NZCA 428.
13 Banks v R [2011] NZCA 469.
14 Joblin v R [2016] NZCA 287.
[23] Ms Litt for Mr Sparks stressed differences between the offences, particularly the de-activation of the alarm systems in two instances and that the safe or cashbox was removed in two, not all three.
[24]Section 43 of the Evidence Act addresses propensity evidence. It provides:
(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… that are the subject of the evidence have occurred;
(b)The connection in time between the acts… that are the subject of the evidence and the acts… which constitute the offence for which the defendant is being tried;
(c)The extent of the similarity between the acts… that are the subject of the evidence and the acts… 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… that are the subject of the evidence and the acts… 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.
[25] After setting out the provisions of ss 43 and 8 of the Act, the Judge set out similar elements he identified, stating:15
[40] The issue of propensity evidence will ultimately be one for the Trial Judge exercising his or her judgment, and most likely during the trial process upon hearing submissions. However, I would have to say that if the defendant is found to have committed the Mitchellis Café burglary, then I could not imagine a clearer or more obvious case where propensity evidence should be admitted as part of the circumstantial evidence for the other two burglaries. This would be so regardless of whether they are heard together.
[26] His Honour noted 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”. Therefore, having regard to probative value and the prejudicial effect on the appellant, the Judge held that “the propensity evidence being admissible will not unfairly prejudice the proceeding, nor will it needlessly prolong it”, and the charges should be heard together.
The District Court decision
[27] His Honour Judge Saunders found the Mitchelli’s charge proved, for which there was evidence inculpating Mr Sparks, and that is not contested.16
[28] In light of that finding, the similarity of the cases, and the evidence that the safe shown on Facebook could have been (although was not proven to be) the Animates safe, and in the absence of any other credible explanation, the Judge found the appellant guilty of the Animates charge.17 His Honour noted that it was possible that others were involved, but he was sure that Mr Sparks was one of the offenders. The fact Mr Sparks posted on Facebook a picture of a safe in his car, with his tag as to what he was doing was relevant, but not propensity evidence.
[29] On the Coupland’s charge, the Judge recognised that there were no additional pieces of circumstantial evidence beyond alleged propensity that might point to the appellant’s involvement. Footprints at the scene did not match shoes at addresses
15 Police v Sparks, above n 3.
16 At [42].
17 Police v Sparks, above n1.
Mr Sparks frequented, and there was no evidence that he was linked to the tools used. However, the Judge rejected the possibility that another person, unassisted by the appellant, carried out the Coupland’s burglary. His Honour was sure Mr Sparks was involved in the Coupland’s burglary, using the same method as he had for the two other burglaries. The Judge found “this was, in short, a pattern of behaviour which assists the Court to determine the identity of the offender”.
Submissions
For the appellant
[30] Ms Litt submits that the propensity evidence was admitted wrongly, and as such the judgments relating to the Animates charge and the Coupland’s charge were “unreasonable”.
[31] Ms Litt submits that evidence in relation to the Mitchelli’s burglary should not have been admissible as propensity evidence for the other charges, given the lack of other circumstantial evidence linking Mr Sparks to these charges. Counsel recognises there is probative value in the propensity evidence, but without more the risk of an unfairly prejudicial effect on the appellant is submitted high, so that a miscarriage of justice has occurred.
[32] Counsel submits that the Judge was wrong to conclude that the Court could be sure that the safe in the appellant’s Facebook photo was the Animates safe. Without that evidence, there is nothing other than the Mitchelli’s conviction to link the appellant to the Animates charge. There is also nothing more to link Mr Sparks to the Coupland’s charge, so it is submitted.
[33] While counsel accepts that targeting and entering a business via the roof is unusual, attached to the Notice of Appeal were a number of news articles about rooftop burglaries in Christchurch and Nelson. Detective Sergeant Wells is quoted as saying that this burglary method was becoming more common.
[34] In Adams v R,18 the Court of Appeal partially allowed an appeal related to propensity evidence where that was the only evidence available. However, the Court allowed the propensity evidence in relation to clusters of offences, or multiple similar offences occurring in a similar area within a few hours of each other, even if there was no other evidence for a specific charge.
For the respondent
[35] Mr White, for the Police, discussed the approach to propensity evidence explained in Mahomed v R as “the greater the linkage or coincidence provided by the propensity evidence, the greater the probative value that evidence is likely to have”.19
[36] When propensity evidence is adduced to prove identity, counsel refers to the Court of Appeal:20
The probative value of propensity evidence on the issue of identity will depend on the combination of features that are common to the current allegations and the prior conduct. The relevance of similarities cannot be measured in abstract.
[37]Mr White says that on this appeal “the linkages and coincidences were stark”.
[38] Counsel referred to the distinctiveness of the method of entry through the roof. He submits the Mitchelli’s charge is sufficiently similar in enough features to be admitted as propensity evidence for the other two charges, so that Judge Saunders was entitled to rely on it.
[39] Counsel submits that the Judge was entitled to rely on the Facebook evidence as counsel simply asserts that the Judge was entitled to rely on it.
[40] In finding Mr Sparks guilty beyond reasonable doubt of the Mitchelli’s charge and the Animates charge, counsel submits that the Judge was entitled to rely on “extraordinary similarities shared by those two burglaries and the Coupland’s burglary” to convict Mr Sparks of the Coupland’s charge.
18 Adams v R [2016] NZCA 570.
19 Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [3].
20 Solicitor-General v Morgan [2015] NZCA 465 at [14].
Analysis
[41] Ms Litt did not pursue the severance point on appeal after I discussed with her the proof and admission of the Mitchelli’s charge.
[42] I disagree that the propensity evidence was wrongly admitted. It was for the trial judge to make the assessment. There were ample similarities between the charges which were capable of being propensity evidence.
[43] The Judge convicted Mr Sparks of the Animates charge based on the propensity evidence of the Mitchelli’s burglary, plus the Facebook evidence. The evidence of the Facebook photo in addition to the propensity evidence does support the conviction on the Animates charge. The Judge did not use the Facebook evidence as decisive. Rather, he treated it as evidential as to what Mr Sparks was doing around that time.
[44] Mr Sparks was driving at night with a safe. This is evidence of very unusual behaviour, directly connecting to burglary and theft of a cash box or safe.
[45] The evidence is that this may have come from Animates because it “looked like” the Animates safe. The extent to which this is probative of the Animates offence is debatable. What it does constitute is evidence of Mr Sparks in effect skiting about having a safe in his car at night. Mr Sparks was quite prepared, it seems, to acknowledge publicly that he had a safe in his car and his involvement with having taken a safe is a reasonable inference. It certainly adds to the mix of whether he committed the other offences at Animates and Coupland’s. It is evidential of his behaviour which connects with the night time removal of a safe. I consider the Judge correctly brought this to account, but correctly did not treat it as establishing that the safe had come from Animates as a matter of certainty. It was simply an additional piece of evidence which indicated Mr Sparks’ offending, beyond Mitchelli’s. I therefore agree with the Judge that the propensity evidence, alongside the Facebook evidence is sufficient to convict Mr Sparks of the Animates charge.
[46] In the Coupland’s case, as opposed to the Animates case, there was nothing more than the propensity evidence. It had the propensity features shown in the Table above. It was part of a small spate of offending limited in time and method.
[47] In the course of the argument the evidence of Constable Menzies about the use of a particular type of screwdriver on the roof is, I think, important. The entry through the roof using tinsnips, then getting to the safe/cash box, at much the same time each Sunday evening, is strong evidence which points to the offender at Mitchelli’s being an offender in respect of the other two offences. The fact he had a safe in his “Benz”, at night, skiting about it links him with the charges involving safes.
[48] I conclude the Judge was right that by the “linkage and coincidence” test for propensity evidence,21 he was entitled to rely on that evidence alone on the Coupland’s charge. The way in which the offences were committed, and the timing, and the brazen connection to a safe carried in a “Benz” at night is not coincidental, but compelling evidence of Mr Sparks’ guilt on both charges.
Conclusion
[49] The Judge could rely on the Facebook evidence to support the propensity evidence against Mr Sparks on the Animates charge. Mr Sparks was convicted of the Coupland’s charge on the basis of propensity evidence without more, but this does not amount to a miscarriage of justice. The similarities between the offending were sufficient, indeed striking, for the Judge, and this Court, to be sure of Mr Sparks’ guilt.
Disposition
[50]The appeal against conviction is dismissed.
……………………………………..
Nicholas Davidson J
Counsel:
Raymond Donnelly & Co, Christchurch S L Litt, Barrister, Christchurch
21 Mahomed v R, above n 19.
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