SPARKS v POLICE [2018] NZCA 530

SPARKS v POLICE [2018] NZCA 530 [28 November 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA522/2018[2018] NZCA 530BETWEEN ADAM SHAY SPARKSApplicantAND POLICERespondentHearing: 7 November 2018Court: Clifford, Dobson and Mander JJCounsel: C J Tennet for ApplicantK S Grau for RespondentJudgment: 28 November 2018 at 3 pmJUDGMENT OF THE COURTA The application for an extension of time to apply for leave to bring asecond appeal is granted.B The application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Dobson J)[1] Following a judge alone trial in the District Court, Mr Sparks was convictedon three charges of burglary.1 He has now applied, out of time, for leave to bring asecond appeal against two of those convictions on a question of law.1 Police v Sparks [2017] NZDC 23172 [District Court judgment].[2] Mr Sparks' convictions for the three burglaries were entered on12 October 2017 and he was sentenced on 10 November 2017 to concurrent sentencesof three years and three months' imprisonment.2 Mr Sparks' first appeal against twoof three convictions was dismissed in a judgment of Davidson J issued on30 April 2018.3[3] The application for leave to bring a second appeal was filed relatively soonafter 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 theapplication. For the respondent, Ms Grau did not raise any prejudice and leave tobring the application out of time was not strenuously opposed. We therefore grant thatapplication.[4] The respondent did, however, oppose the application for leave to bring asecond appeal. It is that application which is the subject of this judgment.The facts[5] On three Sunday nights in June and July 2015, burglaries were committed inthree commercial premises in Christchurch: Animates, Coupland's Bakery andMitchelli'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 roofinto the ceiling cavity of each of the premises and from there into the office area wherethe weekend takings of the respective businesses were kept.[6] The evidence was the strongest in relation to the third of the burglaries, that ofMitchelli's Café. This took place on 12 July 2015. The burglar broke through theceiling 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 footageearlier on the same day recorded Mr Sparks and another person at the shoppingcomplex, and the night time footage recorded two people of the same description2 Police v Sparks [2017] NZDC 25585.3 Sparks v Police [2018] NZHC 872 [High Court judgment].wearing the same clothes. The footage also recorded a vehicle, which appeared to bethe same as one that was found abandoned 350 metres from Mr Sparks' home. It hadhis fingerprint inside.[7] Two Sunday evenings earlier, on 28 June 2015, a burglar had broken into theoffice of Coupland's Bakery. Entry was gained by cutting through the roofing ironwith tin snips and accessing the ceiling cavity. The burglar removed some ceilingpanels, obscured a security camera, broke into the safe, and removed cash ofapproximately $8,000.[8] Two Sunday evenings earlier than the Coupland's Bakery burglary, on 14 or15 June 2015, a person had broken into an Animates business. On that occasion,the burglar cut a hole through the roofing iron with tin snips, cut a hole in the ceiling,disabled the security system and removed the safe containing $6,000 in cash. Sometwo months after that burglary, Mr Sparks posted a photograph on Facebook showinga small safe in the boot of a car, with the commentary "Late night in a Benz". Althoughthe safe was not positively identified, a representative of Animates said the safematched the general description of that taken from their premises.The District Court and High Court judgments[9] After Mr Sparks was charged with all three burglaries, an unsuccessfulapplication was brought for severance of the charge relating to the burglary ofMitchelli's Café. The Police had signalled their intention to use that burglary aspropensity evidence in relation to the two earlier burglaries. A pre-trial District Courtruling declining severance held that, although the issue would ultimately be for thetrial judge, the evidence should be cross-admissible as propensity evidence on all ofthe three charges.4[10] At the subsequent judge alone trial, Judge Saunders found Mr Sparks guilty ofthe Mitchelli's Café burglary.5 The Judge undertook a propensity analysis to rely onthe same features in the modus operandi used in the first two burglaries to be satisfied4 Police v Sparks [2017] NZDC 3769 at [43].5 District Court judgment, above n 1, at [6].beyond reasonable doubt that Mr Sparks had also committed them. The Facebookphotograph was a relevant piece of evidence to consider alongside the propensityevidence.6[11] Mr Sparks' appeal to the High Court was argued on the basis that he acceptedthe conviction for the Mitchelli burglary. He challenged the other two convictions onthe grounds that the District Court ought to have severed the Mitchelli charge.Not doing so arguably led to the wrongful admission of propensity evidence, renderingthe convictions on the Animates and Couplands' burglaries unreasonable.[12] Davidson J found that evidence of the Mitchelli burglary was legitimatelyapplied as propensity evidence in relation to the burglary of Coupland's Bakery andthe Animates burglary.7 The similarities in the modus operandi of all three weredistinctive. The totality of the evidence led the Judge to the conclusion that thesimilarities between the offending were striking.8 By also taking into accountMr Sparks' Facebook posting, the evidence was sufficient for the District Court Judgeand for the High Court to be sure of Mr Sparks' guilt.The application for leave[13] The application for leave is brought under s 237(1) of theCriminal Procedure Act 2011. To grant leave, this Court must be satisfied that theappeal involves a matter of general or public importance, or that a miscarriage ofjustice may have occurred.9[14] Mr Tennet, who had not been involved at any earlier stage of the case,characterised the point of general or public importance as the test that should beapplied for using propensity evidence to convict someone where the propensityevidence was all circumstantial. The real gravamen of Mr Sparks' complaint is theadequacy of the evidence for finding that he committed the two earlier burglaries.6 At [33].7 High Court judgment, above n 3, at [49].8 At [49].9 Criminal Procedure Act 2011, s 237(2).[15] We were not persuaded by Mr Tennet's arguments that these concerns couldraise a question of general or public importance. By its nature, propensity evidence isalways circumstantial. The reasons for convicting and then upholding thoseconvictions are specific to the evidence on each of the charges. Mr Tennet could notarticulate a question that would have wider application. After argument, Mr Tennetaccepted that a challenge to the admissibility of the propensity evidence could notconstitute a matter of general or public importance.[16] Mr Tennet also raised the prospect that the way in which the propensityevidence had been applied gave rise to the risk of a miscarriage of justice.We disagree. The pattern evident from the cross-propensity evidence in this case wascompelling. We see no concern that the sufficiency of evidence could raise a risk of amiscarriage of justice.Result[17] The application for an extension of time to apply for leave to bring a secondappeal is granted.[18] The application for leave to bring a second appeal is declined.Solicitors:Crown Law Office, Wellington for Respondent