HOPKINS v R [2017] NZCA 197

HOPKINS v R [2017] NZCA 197 [23 May 2017]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.NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA298/2016[2017] NZCA 197BETWEEN IAN DONALD HOPKINSAppellantAND THE QUEENRespondentHearing: 3 May 2017Court: French, Mallon and Wylie JJCounsel: C S Lawes and M J Vesty for AppellantJ C Pike QC for RespondentJudgment: 23 May 2017 at 2.30 pmJUDGMENT OF THE COURTA The application for leave to appeal is granted.B The appeal is dismissed.C 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 Wylie J)Introduction[1] The appellant, Mr Hopkins, seeks leave to appeal a pre-trial ruling given byJudge Ruth in the District Court at Nelson.1[2] Three complainants have alleged they were sexually offended against byMr Hopkins. One complainant — DM — alleges she was offended against in 2001.The other two complainants — SK and MT — allege the offending against themoccurred in 2015.[3] Mr Hopkins faces nine charges arising out of these allegations. There are twocharges, one of indecent assault and the other of sexual violation by rape, allegingoffending against DM (the DM charges). There are six charges alleging offendingagainst SK — three of indecent assault (one representative) and three of doing anindecent act (also one representative) (the SK charges). There is one charge allegingindecent assault against MT (the MT charge). Mr Hopkins applied to sever the DMcharges from the seven charges involving SK and MT. Judge Ruth declined theapplication for severance.The charges and the proposed evidence[4] In relation to the DM charges, DM says:(a) Mr Hopkins approached her at a bus stop on more than one occasion.He asked her to go to lunch with him. She agreed, but only because afemale friend agreed to accompany her.1 R v Hopkins [2016] NZDC 10882.(b) Both before this lunch, and more than once subsequently, Mr Hopkinsarrived at her house uninvited. On some of these occasions he pushedhis way into the house.(c) He rang her often, leaving messages on her answer phone.(d) She eventually agreed to go out to dinner with him. He tried to getclose to her at the dinner. She did not feel comfortable about that, tothe extent she suffered an anxiety attack and was sick in the restaurant.(e) They left the restaurant and sat on a nearby seat. He kissed her. Hepersuaded her to get into his car. She thought he was going to take herhome; however, he drove her to a secluded location.(f) He parked the car. He started to kiss her again. He then pulled up herupper clothing and started touching and kissing her breasts.(g) She was confused. He did not say anything; he did not ask for herpermission. She froze. Mr Hopkins took his trousers down. He pulledher skirt up and removed her underwear. He got on top of her and rapedher. She says she did not know what to do or how to stop it happening.[5] The complainant, SK, says:(a) She was desperate to get a job and Mr Hopkins offered her work as ataxi driver. He required her to go on a number of drives for tuitionpurposes.(b) Mr Hopkins took her out to lunch, despite her telling him she was notcomfortable with that.(c) After the lunch, he drove her out to a secluded area.(d) He told her he thought there was a connection between them. He thenstarted touching her chest.(e) She protested. Mr Hopkins then exposed his penis and masturbated infront of her.(f) She continued going out in his car so she could qualify for a job as ataxi driver. Mr Hopkins made sexual advances to her on otheroccasions.(g) On one occasion Mr Hopkins tried to get his hands down her pants.[6] In relation to the MT charge, MT says:(a) Mr Hopkins befriended her after she met him through SK.(b) Mr Hopkins invited her to go for a drive. She was sceptical about thisbut she agreed. He asked her for a kiss before taking her home.(c) She indicated she was not keen to go on further drives with him, or tosee him again, but he persisted.(d) On another occasion, Mr Hopkins drove her to a secluded area (thesame secluded area as alleged by the complainant SK). They sat in thecar and he touched her breasts. He continued touching her breasts,despite her asking him forcefully not to do so. He asked her to get outof the car and sit on a nearby beach. She asked "what for", and hereplied "oh, you know". She refused.(e) On a third occasion, she agreed to go on another drive with him. Afterstopping for lunch, he pulled into a driveway. She asked why they werestopping. He said for "a bit of a cuddle and a kiss". She refused. Hestopped the car again a short time later for the same purpose. Again,she refused.[7] Mr Hopkins has denied all allegations. He denies knowing DM. Heacknowledges knowing SK, offering her a job, giving her tuition and taking her tolunch. He denies driving her to isolated locations, rather he says she propositionedhim on one occasion. Mr Hopkins accepts he also knows MT, that they had lunch andthat they did go on drives together. He accepts that there were intimacies betweenthem, which he says were consensual.Analysis[8] The principles relating to applications for severance are well settled. Theywere summarised by this Court in Churchis v R.2 The Court there noted as follows:3Counsel were agreed that the principles applicable [to severance] are wellsettled and include the following:(a) Offending that is unrelated in time or circumstance should not be triedtogether, unless the evidence of one incident is relevant to another toan extent that its probative value outweighs its prejudicial effect. Thatrelevance may arise in a variety of circumstances, such as where thefacts are so similar or the allegations interconnected to a point that itwould be artificial to present them separately.(b) Joinder may be granted if evidence relevant to one count is alsorelevant to one or more other counts.(c) The practicalities of the criminal process may be taken into accountincluding the degree of connection between the charges; the impact ofsuccessive trials on the accused and witnesses; and the likely effect ofpublicity of the first and subsequent trials.(d) Prejudice to the accused is a factor to be taken into account. The factthat the accused may be obliged to give evidence is a relevant but nota decisive consideration.(e) The discretion is wide. In the end, what is required is a balancingbetween the legitimate interests of an accused and the public interestin the fair and efficient despatch of the Court's business.[9] Here, the issue of severance falls to be determined by reference to the proposedpropensity evidence. The Crown argues the proposed propensity evidence isadmissible discretely on each charge and across all charges as showing a propensityby Mr Hopkins to act in the ways alleged. It can adduce the proposed evidence if ithas a probative value in relation to an issue in dispute which outweighs the risk theevidence may have an unfairly prejudicial effect on Mr Hopkins.42 Churchis v R [2014] NZCA 281, (2014) 27 CRNZ 257; and see M (CA85/2013) v R [2013] NZCA239 at [16]–[17].3 Churchis v R, above n 2, at [28] (footnotes omitted).4 Evidence Act 2006, s 43(1).[10] Here, there is disagreement between the parties as to the issues that will be indispute. The defence asserted identity will be in issue on the DM charges, the SKcharges will be met by a straightforward denial, and the MT charge will raise the issueof consent. The Crown said, in reality, the issue on each charge will be whether thealleged offending occurred.[11] Coincidence of issues can enhance the probative value of propensity evidence,but even if Mr Lawes, counsel for Mr Hopkins, is correct and the issues are different,that of itself is not a reason for excluding the proposed evidence in this case. Theconcepts of linkage and coincidence, which are the underlying rationale for theadmission of propensity evidence, are engaged.5 Even if the issue in the DM chargesis the identity of the assailant, it could be argued it is a strange coincidence the manDM should identify is the same man independently accused by the other complainantsof non-consensual sexual conduct that took place in similar circumstances. Propensityevidence can properly be admissible where identity is in issue.6 It can also beadmissible where consent is in issue.7[12] Section 43(3) of the Evidence Act 2006 sets out a number of matters the Courtcan consider in assessing the probative value of proposed propensity evidence. Thematters listed in the subsection are not exclusive. In the present case, we note thefollowing:(a) The alleged acts and circumstances have been repeated on a number ofoccasions.(b) There is little connection in time between the offending that is allegedto have occurred in 2001 and the offending that is alleged to haveoccurred in 2015. The passage of time, while a relevant factor, is nothowever determinative of admissibility, in that it does not necessarilyextinguish the probative value of propensity evidence.85 Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [3].6 Solicitor-General v Morgan [2015] NZCA 465; and Rossiter v R [2015] NZCA 557.7 R v Healy [2007] NZCA 451, (2007) 23 CRNZ 923 at [68]; and Linton v R [2011] NZCA 561 at[31]–[33].8 T v R [2014] NZCA 602 at [45].(c) There is a similarity between the acts and circumstances alleged byeach complainant. All complainants say Mr Hopkins befriended them;made advances to them despite the absence of any positive interest ontheir part; persuaded them to travel in his car; took them to isolatedplaces; made sexual advances to them, initially touching their breasts;and continued to make sexual advances notwithstanding the absence ofconsent or the existence of protest by them.(d) There are three persons making similar allegations.(e) There is no suggestion of collusion between DM and the othercomplainants.(f) Sexual offending against adult women is not in itself unusual, but thealleged modus operandi is a little more distinctive. Further, there isprobative value in the similarity of the alleged offending.[13] The proposed evidence qualifies as propensity evidence. To be admissible,evidence proposed to be offered by the Crown about a defendant's propensities musthave some specificity about it.9 On balance, we consider the proposed propensityevidence does have some specificity, and it is of moderate probative value. Itsprobative value is not, however, particularly high.[14] We turn to consider the question of prejudice.[15] Section 43(4) of the Evidence Act requires the court to consider whether theproposed propensity evidence is likely to unfairly dispose the jury as the fact finderagainst the defendant, and whether the jury might tend to give disproportionate weightin reaching its verdicts to evidence of the acts or omissions alleged by othercomplainants.[16] Any evidence that is probative will be prejudicial to a defendant, but notnormally unfairly so. Unfairness is generally found when and to the extent the9 Mahomed v R, above n 5, at [3].evidence carries with it a risk the jury will use it for an improper purpose or in supportof an impermissible process of reasoning.10[17] We acknowledge the point made for Mr Hopkins — there is a risk the jury, ifnot properly directed, could place disproportionate weight on the allegation of rapemade by DM.[18] However, in assessing the probative value/unfair prejudice balance, we cantake into account the extent to which we consider a "proper use" direction in the trialjudge's summing up is likely to guard against the risk of improper use.11 In this case,an appropriate and tailored direction can readily be given. We are not prepared toassume that direction would be ignored, as Mr Hopkins invited us to do. A tailoreddirection, cautioning the jury against reasoning processes that carry the risk of unfairprejudice, is very likely to shut off the possibility the jury as the fact finder in relationto the SK and MT charges will be unfairly predisposed as the result of hearingevidence of the rape allegation.[19] We consider the proposed propensity evidence is relevant, it has someprobative value, and that probative value is not outweighed by the potential prejudicialeffect on the defendant.[20] The application for leave to appeal is granted but the appeal is dismissed.[21] For fair trial reasons, an order is made prohibiting publication of the judgmentand any part of the proceedings (including the result) in news media or on the internetor other publicly available database until final disposition of trial. Publication in lawreport or law digest permitted.Solicitors:Bamford Law, Nelson for AppellantCrown Law Office, Wellington for Respondent10 Mahomed v R, above n 5, at [7].11 Mahomed v R, above n 5, at [7].