ADAMS v R [2016] NZCA 570

ADAMS v R [2016] NZCA 570 [1 December 2016]ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANYPART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWSMEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLEDATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION INLAW REPORT OR LAW DIGEST PERMITTED.IN THE COURT OF APPEAL OF NEW ZEALANDCA448/2016[2016] NZCA 570BETWEEN ALLAN TREMAIN ADAMSAppellantAND THE QUEENRespondentHearing: 7 September 2016Court: Miller, Courtney and Woodhouse JJCounsel: E A Hall for AppellantD R La Hood and SWP Woods for RespondentJudgment: 14 September 2016 at 4.00 pmReasons: 1 December 2016JUDGMENT OF THE COURTA The application for leave to appeal against the pre-trial ruling of theDistrict Court on the admission of propensity evidence at trial is granted.B The appeal is allowed in part by quashing the ruling that the convictionsand summaries of facts for the 2009 and 2012 offences may be admitted aspropensity evidence in respect of charge 1 (Teaspoon Coffee House, CRN:150960028), charge 7 (The Gasworks, CRN: 15096001948), and charge 9(Caci Clinic, CRN: 15096001915).C The appeal against the pre-trial ruling is otherwise dismissed.D Order prohibiting publication of the judgment and any part of theproceedings (including the result) in news media or on the internet orother publicly available database until final disposition of trial.Publication in law report or law digest permitted.____________________________________________________________________REASONS OF THE COURT(Given by Woodhouse J)[1] Mr Adams applied for leave to appeal against a District Court pre-trial ruling.Judge Barry had allowed an application by the Crown to adduce evidence ofMr Adams' previous convictions for burglary as propensity evidence on 10 currentburglary charges against him.1[2] Without providing reasons, we granted leave to appeal, allowed the appeal inpart by quashing the ruling in respect of three of the current charges, but otherwisedismissed the appeal.2 We now record our reasons.The current charges[3] The current charges were helpfully summarised in a table by Mr Adams'counsel, Ms Hall. We reproduce Ms Hall's table, with some added evidence detail,shading and asterisks. The shaded charges are those in respect of which we upheldJudge Barry's decision; that is to say, we concluded that the evidence relating to theprior convictions was admissible as propensity evidence on the shaded charges. Theasterisks identify charges in respect of which Ms Hall submitted that the only evidenceagainst Mr Adams would be the propensity evidence.1 R v Urry (Adams) [2016] NZDC 14833 [District Court judgment].2 Adams v R [2016] NZCA 439.ChargenumberDate Location Specific evidence1 9–10 April20153:00 pm–7:15 amTeaspoon Coffee House,7 Kiln Street, Upper HuttCRN: 150960028Door forced withscrewdriver. $178taken from till plusdonation box withunknown sum. DNAlocated.2 * 5–6 May20159:00 pm–8:40 amJapanese Kitchen,25B Waitoa Road,HataitaiCRN: 15096001946Front door forced withscrewdriver. $200taken from till. Tillopened at 3:52 am.3 * 5–6 May201510:15 pm–9:00 amNakhon Thai,23B Waitoa Road,HataitaiCRN: 15096001947Front door forced withscrewdriver. Tillsopened — no cash intills — left.4 * 5–6 May201510:00 pm–10:00 amGreat Wall of China,10 Moxham Avenue,HataitaiCRN: 15096001921Front door forced withscrewdriver. Till cashfloat plus cellphonenext to till taken.5 6 May 20153:30 amThe Realm,7 Moxham Avenue,HataitaiCRN: 15096001921Side window forcedwith screwdriver. Triedto open tills — failed— left. Actions andjacket filmed on CCTVinside premises.6 * 6 May 20152:00 am–6:30 amSiam Thai,64 Kilbirnie Crescent,KilbirnieCRN: 15096001949Front door forced withscrewdriver. Till cashfloat taken.7 11 May 2015 The Gasworks,11 Tauhinu Road,MiramarCRN: 15096001948Front door forced. $900taken from two tills.Alarm activated.Actions and distinctivejacket filmed on CCTVinside premises.9 14 May 201511:45 pmCaci Clinic,119 Queens Drive,Lower HuttCRN: 15096001915Back door forced withcrowbar. $400 cashtaken. Admissions: (1)at page 64 of the policeinterview transcript "Ithink that was me"; (2)jacket on CCTV at 71 ofthe transcript; (3) at 72of the transcript "I guessthat's my MO ".ChargenumberDate Location Specific evidence10 * 15 May 20152:00 amUpper Hutt VeterinaryHospital and Cattery,578 Ferguson Drive,Upper HuttCRN: 1509201914Back door forced withcrowbar. Alarmtriggered — left.11 * 15 May 20152:00 am–9:00 amQuinn's Post Tavern,2 Ward Street, UpperHuttCRN: 15096001918Front window forcedwith crowbar. Tried toopen a till. $16 takenfrom a bag.[4] In addition to the evidence against Mr Adams which is recorded in the "specificevidence" column, there was the following:(a) Mr Adams accepted that, on each charge, the Crown was entitled to relyon evidence on the other charges as cross-propensity evidence.(b) Mr Adams had pleaded guilty to a charge of theft of petrol on14 May 2015 in Lower Hutt. Evidence in support of that charge wasthat he was seen on CCTV wearing a distinctive jacket, evidence alsoapplying to charges 5 and 7.(c) He had also pleaded guilty to burglaries of a house in Lower Hutt on16 May 2015 and a house in Eastbourne on 17 May. Burglaries ofhouses were acknowledged to be unusual for Mr Adams.(d) On arrest on 17 May he was found with a black jacket that appeared tobe similar to the jacket seen on the CCTV footage and he had tools inhis vehicle capable of being used to break into properties.(e) Ms Hall advised us that Mr Adams was intending to plead guilty tocharge 1, the offence where DNA was located, and which we assumeto be DNA from blood.[5] Mr Adams was interviewed by police at length. The transcript runs to 114pages. This included the following:(a) Mr Adams said he did not start reoffending until after he had lost hisjob about two or three months into 2015. Without regular income hehad to leave home and he started smoking methamphetamine.(b) He could remember what he had been doing over the last two nights,being 16 and 17 May, because he still had "all that stuff from those twoburglaries", which must have been a reference to the two residentialburglaries. But he had real difficulty remembering anything beforethat. He did not know whether the interviewing officer's questionswould "ring a bell". He said:The nine, the nine burglaries you speak of I very well couldhave done them but I wouldn't, wouldn't really, oh god wherewould I have been. I'd say they would have been all fairlylocal huh. A bit beyond that I wouldn't be able to give you anexact. Fairly certain they wouldn't have been houses, but ofcourse last night there were, it was, I think it was a garage and a shed the night before of a house (c) When asked about charge 9, Mr Adams' responses included thefollowing: I think I do, did I do that? Yes I, I think I think that wasme, I think I did but you know, yeah I think that was me. Idon't know if I'm confusing — details about that. I think thatwas me. I think we stopped at a friend's place for some, for some Pand that and stuff and we had a few pipes and things. Beyondthat it's um, yeah I probably, probably did do that. I vaguelyremember, yeah actually yeah Thursday. One, two, godblimmy, I might have actually done more than that on thatnight. I might, I'm not sure. I don't know, I can't rememberthe names of places or stuff, they're all just the same to me.(d) As Judge Barry said, by page 72 of the transcript Mr Adams was sayingthat the burglary of commercial premises for cash, usually forcing adoor or a window open using a screwdriver or other tool, was his MO.33 District Court judgment, above n 1, at [28].[6] Mr Adams was also charged with possession of 19 g of cannabis plant, amethamphetamine pipe and a cannabis pipe.The propensity evidence: the prior convictions[7] There were three groups of prior convictions. The facts relating to the offencesare contained in summaries of facts prepared when the charges were brought.Pukekohe: 28–29 March 2009[8] In Pukekohe, between 28 and 29 March 2009, Mr Adams got into a buildingthrough an insecure window. The building was occupied by three separate businesses.He kicked open doors to gain entry into the offices of each business. In each of theoffices, drawers and filing cabinets were jemmied open. The only thing taken was atea towel. Blood later found at the scene by police was analysed by ESR and identifiedas that of Mr Adams. Mr Adams admitted those facts. He said in explanation that he"had lapsed into his old habits".Devonport: 30 July 2009[9] On 30 July 2009 Mr Adams committed seven burglaries in Devonport between1:00 am and approximately 4:00 am. The most relevant facts of these offences are asfollows:(a) Between 1:00 am and around 4:00 am he tried to force the door of ahair salon, using a screwdriver, at 69 Victoria Road. He failed to getin.(b) At 95 Victoria Road, he forced open the door of another hair salon andstole $300 in cash.(c) At around 2:40 am to 3:00 am he tried, without success, to prise opena window of the Esplanade Hotel, also in Victoria Road.(d) Immediately after, he successfully prised open another window at theEsplanade Hotel but left when he was disturbed.(e) At around 4:00 am he forced open a window of a gym with ascrewdriver. The gym was in Clarence Street, which is directly offVictoria Road. He took $350 in cash.(f) In the same building as the gym, using a screwdriver, he jemmied adoor into a dental surgery, searched the premises, but took nothing.(g) The seventh burglary was in Flagstaff Terrace in Devonport.Flagstaff Terrace is the road opposite Clarence Street. He got into abuilding occupied by a bed and breakfast business through an insecurerear door and started searching the building. He was disturbed and left.[10] Mr Adams was found by police in Auckland City. He admitted the facts asoutlined above. He was also in possession of nine bags of cannabis.Palmerston North: 17 April 2012[11] The third group of offences were two burglaries in Palmerston North on theevening of 17 April 2012, the first at around 8:45 pm and the second described in thesummary of facts as "the same evening". The first burglary was of commercialpremises in Tremain Avenue. Mr Adams used his hands to smash the bottom pane ofglass in the main entry door and made a hole big enough to crawl through. Whilesearching the office area he set off an alarm and left empty handed. Blood found atthe door was identified as Mr Adams' blood. The second burglary was of a rest homein Russell Street. Russell Street is off Tremain Avenue. Mr Adams forced a windowusing a tool and climbed into the rest home office, then forced a door into a storeroomwhere he in turn forced open a steel cabinet that contained petty cash tins. He stole$1,220 in cash and left. Mr Adams' blood was found on the premises, in this case onan internal door frame.The District Court decision[12] The Crown's original application was to adduce as propensity evidence 275previous burglary convictions committed between 1994 and 2012. In respect of allbut the 2009 and 2012 offences, Judge Barry concluded that there was very littleprobative value because of a dearth of evidence about the burglaries and because theprobative value did not outweigh the risk of unfair prejudice.[13] The Judge's conclusion on the probative value of the Pukekohe, Devonport andPalmerston North offences was different because, as he summarised it, "there arespecific summaries of fact setting out in detail the facts upon which the convictionswere entered and there is a much more recent proximity in time".4 He expanded onthat in some detail and related it back to his analysis of the evidence in support of thecurrent charges. He rejected a defence submission, advanced again on this appeal, thatthere was nothing remarkable about the evidence from the 12 prior convictions; asubmission in the District Court "that nearly all commercial burglaries are committedin exactly the same way and that this does not establish any pattern".5[14] On the balancing exercise under s 43(1) of the Evidence Act 2006, the Judgeconcluded that there was substantial probative value in the propensity evidence, thatthis outweighed the risk of an unfairly prejudicial effect from the evidence and, to theextent that there was some risk of unfair prejudice, it would in the usual way be metby directions to the jury.Evaluation[15] Two matters were not in issue on the appeal:(a) The evidence relating to the Pukekohe, Devonport andPalmerston North burglaries is propensity evidence.(b) The issue on the current charges is identification; was Mr Adams theburglar of each of the premises?[16] Ms Hall's principal submission on the probative value of the propensityevidence was that it was minimal. She submitted that the circumstances of the earlierburglaries are unremarkable; that the facts of each burglary are typical of very many4 District Court judgment, above n 1, at [37].5 At [42].burglaries; and that the evidence did "little more than demonstrate a propensity tocommit burglary".[17] Ms Hall acknowledged that the only feature that might give some probativevalue to the Devonport and, perhaps, the Palmerston North burglaries, is what shedescribed as "clustering" — a number of burglaries carried out in one night with thepremises in close proximity to each other. But she submitted that the probative valueof clustering from the propensity evidence is limited because "the 2016 allegations arenot grouped with the same tight geographic and timing features".[18] We agree with Judge Barry's conclusion that there is substantial probativevalue in the propensity evidence. One distinctive feature is clustering, as Ms Hall putit. "Clustering" is a convenient description, in particular to distinguish this pattern ofoffending from a "spree", an expression often used on sentencing for a number ofburglary offences committed in a block but which may be over an extended period oftime and a wide area. Clustering is most prominent with the Devonport offencesbecause there were seven separate offences in three adjoining streets committed overa period of approximately three hours in the early morning. But we are satisfied thatthe Palmerston North and Pukekohe offences also have relevantly similar features.And for Pukekohe, although Mr Adams was charged with one burglary, the facts mighthave justified convictions for three.6[19] Mr Adams' propensity to act in a distinctive way is not limited to committingclustered burglaries. The clustered burglaries committed by him also have, or usuallyhave, further specific features including the following:(a) The targets are small commercial premises.(b) The mode of entry is unsophisticated — smashing a window or using atool.6 Burglary is committed by entering "any building or part of a building without authority andwith intent to commit an imprisonable offence in the building ": Crimes Act 1961, s 231(1)(a).(c) There is a degree of recklessness, and often a marked degree ofrecklessness, in the method of entry, in behaviour inside the premises,and then in leaving and going almost immediately to other premises,often next door, and even after being disturbed in the first premises.(d) Small business premises are generally targeted for cash, and if no cashor other readily saleable item is found, nothing else is taken.[20] It is the combination of all of those features or circumstances, combined withthe central feature of clustered burglaries, that adds weight to the probative value ofthe propensity evidence. The nature or pattern of the offending by Mr Adams asindicated by the propensity evidence is unusual to a reasonable extent, and in waysthat are shared with the evidence on the current charges. This pronounced pattern alsodistinguishes this case from other cases where the issue is identity but the evidence,although described as propensity evidence, is in substance circumstantial evidencearising from two or more current charges.7[21] We do not accept Ms Hall's submission that the current charges do not havethe same clustering features as the propensity evidence, apart from charges 1, 7 and 9.Charges 1, 7 and 9 were not clustered in time and geographically with other burglaries.This is why we allowed the appeal in respect of those charges. But charges 2 to 6, asa group, and charges 10 and 11, as a group, are clusters. The period of time over whichcharges 2 to 6 were committed is short, and probably only a few hours.8 Thegeographical proximity is close for all five, and particularly 2 to 5. The two UpperHutt burglaries, charges 10 and 11, are similarly clustered. And there is other evidencethat may in fact link the two Upper Hutt burglaries to the Lower Hutt burglary incharge 9, just over two hours earlier. As recorded in the summary of evidence for thecurrent offences, there is evidence strongly linking Mr Adams to the charge 9,including a tentative admission.7 Compare R v Ngawhika [2016] NZCA 311 at [31]–[35].8 The time spans for individual offences are no doubt recorded by reference to the period when theowner of the premises was absent. But with some there is other detail indicating a more precisetime, such as charge 2.[22] The weight of the propensity evidence also needs to be assessed by weighingit with other features of the evidence available to the Crown on the current charges.This includes cross-propensity evidence on each of the current charges, whichMr Adams accepted was admissible, the direct evidence implicating Mr Adams insome of the burglaries, and the admissions made by Mr Adams.[23] One example of direct evidence on one charge, relevant to other charges, hasjust been noted — the direct evidence on charge 9 with a link to charges 10 and 11.Another example is the evidence on charge 5, one of the Hataitai/Kilbirnie cluster. Oncharge 5 there is identification evidence from the distinctive jacket seen on CCTV, aswith charge 9. This is strong evidence that Mr Adams was at the premises in this blockat 3:30 am. If that, and any other direct evidence available to the Crown, is thenweighed with the propensity evidence from the prior convictions, and cross-propensityevidence, and Mr Adams' admissions, there is strongly probative evidence supportingthe charges of burglary of the other premises covered by charges 2 to 4 and 6. Similarconclusions may be reached in respect of charges 10 and 11.[24] Mr Adams' statements in the police interview, and not only his admissions, alsoprovide material links between the propensity evidence and the evidence in support ofthe current charges. The admissions are of particular significance when weighed inrelation to the propensity evidence. Although the issue is, in broad terms, one ofidentification, this is not a case where the defendant says he was not there. As JudgeBarry said, the identification issue is more nuanced. Mr Adams has candidlyacknowledged that he may have committed all of the burglaries, but he was too highon methamphetamine to be able to remember.[25] Judge Barry summarised his analysis of the evidence on the current charges, inconnection with the propensity evidence, as follows:[30] So a circumstantial constellation of probative evidence starts toemerge. Significantly, the defendant does not deny any of these burglaries butclaims that while he was doing burglaries he was so drugged he could notremember specific locations, except for the two residentials which he stressedwere out of character or out of pattern for him.[31] In that context, evidence of these prior convictions for burglariesof commercial premises targeting cash at night, often multiple offences on thesame night or over the same span of days, becomes significant. It hasprobative value because it allows a jury to assess whether it could becoincidence that someone else was committing the same type of rapid-fireburglaries at exactly the same time the defendant said he was but he could notbe sure of the locations.[26] We agree with those conclusions. They also answer a further submission forMr Adams that the previous convictions should not be admitted because on the currentcharges that are marked in the table with an asterisk, the only evidence would be thepropensity evidence. It is not the only evidence.[27] On the question of unfair prejudice Ms Hall submitted that "in the absence ofother confirmatory evidence the jury will automatically conclude" that because MrHall committed clusters of burglaries in 2009 and 2012, "any burglaries committed inWellington on 5–6 May and then in Upper Hutt on 15 May must have been" committedby Mr Adams. She submitted that this risk was compounded because there was noevidence about burglaries in Wellington generally that would put the propensityevidence and the current charges into context and, as Ms Hall contended, because theprobative value of the propensity evidence was slight.[28] We do not agree with those submissions and in large measure for reasonsalready recorded — the propensity evidence has substantial probative value and isdirected to focussed questions of fact on the broader issue as to whether the burglarieswere committed by Mr Adams when he himself thinks they may have been. There isevidence on each of the charges in addition to the propensity evidence. And, as Mr LaHood submitted for the respondent, if there was no evidence on particular chargesother than the propensity evidence, an application for discharge under s 147 of theCriminal Procedure Act 2011 would have been justified. But there has been no suchapplication, and understandably so. Ms Hall's point about the absence of what wouldamount to statistical evidence does not have merit in all the circumstances because ofthe range of relevant linkages between the propensity evidence and the evidence onthe current charges.[29] To the extent that there might be some risk of unfair prejudice in terms ofs 43(4) of the Evidence Act the risk is small. Beyond that, as this Court has made clearon many occasions, risk is to be met by standard directions to the jury.[30] In summary, we agree with Judge Barry that prejudicial effect from thepropensity evidence is "borne of cogency rather than unfairness", and any risk ofillegitimate prejudicial effect could be met by "orthodox judicial direction".9Conclusion[31] For these reasons we granted leave to appeal. We allowed the appeal in partby quashing the ruling that the convictions and summaries of facts for the 2009 and2012 offences may be admitted as propensity evidence in respect of charge 1(Teaspoon Coffee House, CRN: 150960028), charge 7 (The Gasworks, CRN:15096001948), and charge 9 (Caci Clinic, CRN: 15096001915).[32] We otherwise dismissed the appeal against the pre-trial ruling.[33] To protect Mr Adams' fair trial rights, we made an order prohibiting publicationof the judgment and any part of the proceedings (including the result) in news mediaor on the internet or other publicly available database until final disposition of trial.Publication in law report or law digest is permitted.Solicitors:Crown Law Office, Wellington for Respondent9 District Court judgment, above n 1, at [44].