COX v NEW ZEALAND POLICE [2021] NZHC 2029

COX v NEW ZEALAND POLICE [2021] NZHC 2029 [5 August 2021]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2021-409-74[2021] NZHC 2029BETWEEN DESMOND COXAppellantAND NEW ZEALAND POLICERespondentHearing: 5 August 2021Appearances: G D Fletcher for AppellantA M Harvey for RespondentJudgment: 5 August 2021ORAL JUDGMENT OF OSBORNE JThis judgment was delivered by me on 6 August 2021 at 3.30 pmRegistrar/Deputy RegistrarDate:Introduction[1] Mr Cox was convicted following a Judge-alone trial on two charges of doingan indecent act with intent to insult.1 Judge Hix imposed a sentence of eight months'imprisonment. Mr Cox appeals those convictions. (An appeal filed against thesentence was withdrawn).[2] The grounds of appeal are that the Judge incorrectly used cross-propensityevidence to convict Mr Cox of the second charge.Facts[3] Two events led to Mr Cox's convictions. These are an alleged exposure of hispenis to a woman at the Eastgate Mall carpark on 23 November 2020 (the Eastgateevent) and an alleged exposure of his penis to another woman sitting in her car atBurnside Park on 2 December 2020 (the Park event).Eastgate event[4] The victim was at the Mall around 4.15 pm. She had just walked back to hercar and was sitting in the driver's seat in the car park. Mr Cox parked his white Toyotavan in a car park near to the victim. He exited the driver's seat and walked around theback of the van. As Mr Cox walked towards the passenger-side sliding door of thevan, his penis was hanging out from the open zipper of his trousers.[5] The victim saw Mr Cox's penis — "all of it" as she described. The victimdescribed it as "fairly long". Mr Cox then stared at the victim while reaching for, andopening, the sliding door of his van. He continued to stare at her through the frontpassenger door's window while he was standing in the doorway, "a couple of feet"from the victim. The incident lasted about 20 seconds. The victim made eye contactand reversed out of her carpark, Mr Cox closed the sliding door of his van and walkedtowards her vehicle, with his hand near his groin. When the victim drove away, MrCox turned and walked back to his van.1 Crimes Act 1961, s 126; maximum penalty 2 years' imprisonment.[6] There was CCTV footage showing Mr Cox during this time, including drivinghis van in the car park close to the victim's car when he could have left space on bothsides of his vehicle.[7] I observe that in speaking to his submissions today, Mr Fletcher has recognisedthat if the appeal were to succeed because it is an appeal based on a failure to correctlyfollowing propensity reasoning, the appeal can only apply in relation to the secondcharge, the one I am now coming to.Park event[8] The victim of the Park event was parked on Roydvale Avenue in Burnside inthe afternoon. Mr Cox pulled into the car park to the left of the victim in his whitevan. The victim said that although the car park was for practical purposes empty, MrCox had driven up and parked right alongside her vehicle. As Mr Cox exited his vanhe made eye contact with the victim, who saw his penis was hanging out of his pants.[9] The victim looked away, and when she looked back Mr Cox had moved andwas standing in the front of her car, looking at her. His genitals were still exposed,and he thrust his hips toward her. She considered his penis "average to larger".[10] The victim backed out of her car park and drove away before stopping to callpolice. While she was on the phone to the Police, Mr Cox got back into his van anddrove away towards Avonhead Road.Mr Cox's evidence[11] At trial Mr Cox gave evidence that the victims were mistaken. He said whatthey saw in fact was a wooden dowel attached to his pants (produced in evidence), nothis penis. Mr Cox explained that the dowel was kept there to enable him to exercisethe little finger on his right hand which was badly injured in a work place accident.[12] He called three other witnesses, including his wife who spoke as to where MrCox kept his wooden dowel and as to their observations of him gripping it as anexercise.Principles on appeal[13] Section 232 of the Criminal Procedure Act 2011 provides that the High Courtmay only allow an appeal against conviction if satisfied that the trial judge "erred inhis or her assessment of the evidence to such an extent that a miscarriage of justicehas occurred", or that "a miscarriage of justice has occurred for any reason." Amiscarriage of justice means any error, irregularity, or occurrence in or in relation tothe trial that has created a real risk that the outcome of the trial was affected, or hasresulted in an unfair trial.2[14] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.3District Court decision[15] Judge Hix delivered an oral judgment following the trial.[16] After outlining the respective cases the Judge turned to consider the propensityissue. The prosecutor had invited the Court to use the evidence on one of the chargesas proof on the other after his Honour had raised the possibility of using propensityevidence at the conclusion of the evidence. His Honour summarised the policeargument as "once might be able to raise a reasonable doubt but twice is not acoincidence".[17] The Judge found that there were some peculiarities of the incidents which weresimilar. He reminded himself that the legal test is whether the evidence of one casetends to show Mr Cox's propensity to act in a particular way. The Judge referred tos 43 Evidence Act 2006 and summarised the matters he considered under that section.First, the time of day was consistent across both charges, being just after Mr Coxfinished work. Secondly, that there was no suggestion the witnesses have in any way2 Criminal Procedure Act 2011, s 232(4).3 Criminal Procedure Act, ss 250(2) and 250(3).known each other beforehand or talked with each other. Thirdly, the Judge consideredthe fact Mr Cox was said to have parked his vehicle close to the victims in both caseswhen ample space was available. The Judge also found there was a similarity in thealleged commission of the offence itself across the two charges.[18] The Judge considered the CCTV evidence of the Eastgate event. He found itmore consistent with the victim's account than Mr Cox's, both in relation to how MrCox approached the victim and whether it was Mr Cox's dowel the victim saw. Hefound the Eastgate event proven beyond reasonable doubt. He did not take thepropensity evidence into account in relation to that matter. However, having foundthat charge proved, the Judge found the Park event was not a mere coincidence. TheJudge summarised his reasoning as:even without the propensity evidence, my view of the Eastgate matterwould not have changed; in relation to the Roydvale Avenue incident, thepropensity evidence has assisted me in my conclusion.[19] The Judge found Mr Cox guilty on both charges.SubmissionsAppellant's submissions[20] Mr Fletcher, for Mr Cox, submitted that the traditional rule is that the evidenceof a person committing a crime on one occasion ought not to be used as evidence tosupport an allegation of another. He recognised, however, that propensity evidence isan exception to this traditional rule.[21] Mr Fletcher argued that the prosecution did not "offer" the propensity evidenceas required by s 43 of the Evidence Act. It was instead the Judge who first raised it.Mr Fletcher says that the raising of the issue took everyone by surprise. He says that,given propensity evidence is complicated, it should have been raised early byprosecution and he should have had the opportunity to file written submissions.Further, he raised the possibility that he would have applied to have the charges heardseparately.[22] Mr Fletcher submitted propensity evidence had little value in this case. Hesaid the issue was whether the witnesses correctly described what they saw, rather thanidentification or another issue. He referred to Professor Gallavin's text Evidencewhere the author says:4For example, on a charge of burglary, evidence that the defendant hadcommitted burglaries in the past is more likely to be admitted if the defendanttestifies that he entered a strangers house by mistake than if the defendant hasnot been seen near the scene of the crime and the issue is who committed theburglary.[23] Mr Fletcher further submitted that the fewer the suggested propensity events,the more striking the similarity must be:— two events may simply be coincidence. MrFletcher referred to the s 43(3) Evidence Act factors submitting the Judge erred in howhe had done so. In particular, Mr Fletcher submitted the "extent of similarity" waslimited to Mr Cox exposing his private parts, with no other distinctive element. MrFletcher argued the Judge erred in the weight he placed on the fact the events occurredat a similar time of day and that Mr Cox positioned his van close to their cars in bothinstances. Mr Fletcher also took issue with the Judge's assessment of the events as"entirely independent".[24] Mr Fletcher submitted the best way to consider whether the propensityevidence should have been used was to ask whether Mr Cox would have beenconvicted of each charge if he had been tried on the charges separately.Respondent's submissions[25] Mr Harvey, for the Crown, similarly referred to the s 43(3) factors. Hesubmitted there were similarities as on each charge Mr Cox had parked (unnecessarily)close to a woman alone in her car, had his "long" or "average to large" penis hangingout of his zipper and made eye contact with the victims. He also submitted theoffending was unusual as Mr Cox approached them randomly with his penis hangingout of his zipper. He submitted the Judge was entitled to rely on cross-propensityreasoning.4 Chris Gallavin Evidence (LexisNexis, Wellington, 2008) at 223.Analysis[26] Propensity evidence is adduced where a person can be shown to have atendency to act in a specific way or a particular state of mind. The justification foradmitting propensity evidence rests on concepts of linkage and coincidence.5[27] The sole issue was whether the witnesses were mistaken in believing what theysaw was Mr Cox's penis.[28] To be admissible, propensity evidence must be relevant to an issue in dispute.6The propensity evidence here was probative in relation to the Park event because, asthe Judge said, "once might be able to raise a reasonable doubt but twice is not acoincidence". If proved, the fact Mr Cox had his penis visible at the Eastgate eventmakes it less likely the second witness was mistaken when they say they saw Mr Cox'spenis at the Park event. This is demonstrated when the s 43(3) factors are considered:(a) Frequency: There were two incidents.(b) Time: The two incidents occurred nine days apart. They were closelyconnected in time.(c) Similarity: There are significant similarities. On each occasion Mr Coxparked his van close to a woman alone in her car, unnecessarily closein terms of the spaces available. Both witnesses described a period ofsustained and deliberate eye contact, and Mr Cox approaching theirvehicles. Each offence also occurred at a similar time of day. Thesimilarity may be considered striking.(d) Number of complainants: There were two complainants.(e) Collusion: Mr Fletcher accepted there was no suggestion of collusion.The witnesses were truly independent.5 Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [3].6 C(CA458/2018) v R [2018] NZCA 513 at [23]; and Evidence Act 2006, s 43.(f) Unusualness: Exposing oneself to strangers is unusual behaviour andin this case the unusualness is increased by the extent of the similaritiesto which I have referred.[29] The striking similarity combined with the fact the incidents occurred withinnine days of each other gives the evidence high probative value for the purpose ofestablishing the second witness was not mistaken. A single prior and substantiallysimilar incident may be admissible as propensity evidence.7[30] In relation to Mr Fletcher's submissions as to the prospect of severing thecharges, I note the observations of the Court of Appeal in M(CA85/13) v R in whichthe Court of Appeal summarised earlier authorities in relation to the linkage betweenseverance arguments and propensity arguments. There the Court observed:8[17] Where evidence in relation to one count is admissible propensityevidence in relation to another count, this is clearly a strong factor againstseverance. Even where this is not the case there may be circumstances whereallegations are so connected in time and circumstance that it is necessary totry counts together in order to present a case on a realistic rather than anartificial basis. The discretion to grant severance is not likely to be exercisedwhere it would be contrary to the requirements of justice to deny the jury theadvantage of the full picture.[31] This is a case where severance would have denied the Judge the advantage ofconsidering the full picture recognised by the Court of Appeal in M. This was a classiccase for joinder.[32] Mr Fletcher has not pointed to any particular prejudice other than the fact MrCox was convicted on the second charge in partial reliance on the propensity evidence.That is a reflection of the legitimate probative value.[33] In these circumstances the Judge correctly determined that the Eastgate eventwas admissible propensity evidence in relation to the Park event.[34] It does not appear to me that the Judge gave the propensity evidencedisproportionate weight. The propensity evidence was but one aspect of the evidence7 Patten v R [2014] NZCA 486 at [24].8 M(CA85/13) v R [2013] NZCA 239.the Judge relied on to convict Mr Cox on the second charge. He had the evidence ofan eyewitness complainant whose evidence, it is clear, he found reliable. As the Judgeindicated,9 the propensity evidence assisted him to reach his conclusion — it was notthe sole foundation.[35] I return to Mr Fletcher's submission as to the prosecution not having "offered"propensity evidence in terms of s 43 Evidence Act 2006. Mr Fletcher's submissiondoes not advance the appeal for at least two reasons.[36] First, activating the requirements of s 43 occurs through the offering of theevidence in question (in parallel with the trigger under s 41 where it is the defendantwho is offering the evidence). In this case, it was the prosecution which offered theevidence as to the Eastgate event. It happens that the next consideration under s 43(as with s 41) is whether the evidence offered has the quality of propensity evidence,a matter frequently dealt with in jury trials at the conclusion of the evidence and beforethe jury are directed. The fact that the Judge (rather than counsel) may have initiatedthe consideration as to whether the evidence as to the Eastgate event had the qualityof propensity evidence does not alter the fact that it was the prosecution which hadoffered that evidence in the first place. Once the adjudicator of fact (in this case theJudge sitting as Judge-alone) perceived the potential use of the Eastgate event oralevidence as propensity evidence, it was for the Judge to direct himself (having heardany submissions), as to whether or not it was admissible in relation to the Park eventon that basis.[37] That is precisely what the Judge then did, introducing his analysis in this way:[10] In particular there is this propensity issue that has come in. That is alegal issue where I am being asked to effectively use what one witness says inone case as evidence to support the case in relation to the other witness. Inother words, asking for the evidence of each of them to support each other. Inessence, I will simplify it by saying that the police case is "well once might beable to raise a reasonable doubt but twice is not a coincidence" I will justsimplify the propensity argument in that way.The Judge then completed that analysis at [11]–[13].9 Police v Cox [2021] NZDC 11361.[38] Secondly, even were there a need for the prosecution to have initiated theconsideration of the Eastgate event evidence as propensity evidence, that cannotconstitute a miscarriage of justice if the evidence was correctly admissible (as I found(at [24]–[29] above). Here, evidence which was subsequently used for propensityreasoning was all legitimately and necessarily adduced to prove the first chargerelating to the Eastgate event. Mr Fletcher was given the opportunity to make legalsubmissions on the appropriateness of propensity reasoning as was the prosecutor,albeit at the close of the hearing. The propensity evidence is now before this Court asit was before the District Court. An issue arising on the appeal is whether it wasproperly admissible. That can equally be determined on this appeal as it was in theDistrict Court. Mr Fletcher has made detailed submissions in relation to it. Had Ifound that the need for assessment of propensity evidence under s 43(1) had not beentriggered, this aspect of the appeal would still have failed for the reason that there hasbeen no miscarriage of justice resulting.[39] I turn briefly and finally to consider Mr Fletcher's submission that the best wayto consider whether the propensity evidence should have been used is to ask whetherMr Cox would have been convicted of each charge if he had been tried on the chargesseparately. Mr Fletcher suggests that if the Park event charge had proceeded first, MrCox may well have been acquitted on both. I do not find that analysis helpful. Thefact that the charges were not severed but were heard together and the case proceededaccordingly. Had the charges been severed, and I do not believe it likely that the Courtwould have ordered severance, the prosecution would almost inevitably have soughtto have the Eastgate charge dealt with first with precisely the same consequences asoccurred in the joint trial of the charges.Conclusion[40] I have therefore concluded that the Judge's use of the propensity evidence wasappropriate and that in any event no miscarriage of justice resulted.Order[41] I dismiss the appeal.Osborne JSolicitors:G D Fletcher, Barrister, ChristchurchCrown Solicitor, Christchurch