R v Cruden [2007] NZCA 68 (15 March 2007)

Last Updated: 8 February 2014

ORDER PROHIBITNG PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (EXCEPT THE RESULT AS SET OUT IN [32]) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF RETRIAL. PUBLICATION IN LAW REPORT OR

_{LAW DIGEST PERMITTED.}

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 248/06 [2007] NZCA 68

THE QUEEN

v

WARREN JOSEPH CRUDEN

Hearing: 5 March 2007

Court: Ellen France, John Hansen and Williams JJ Counsel: R G Glover for Appellant

S B Edwards with K Laurenson for Crown

Judgment: 15 March 2007 at 11 am

_{JUDGMENT OF THE COURT}

A The appeal against conviction is allowed and a retrial ordered.

B Order prohibiting publication of the judgment and any part of the proceedings (except the result as set out in [32]) in news media or on internet or other publicly accessible database until final disposition of

_{retrial. Publication in law report or law digest permitted.}

R V CRUDEN CA CA 248/06 15 March 2007

REASONS OF THE COURT

_{(Given by Williams J)}

Issues

[1] Following trial in the District Court in Christchurch beginning on

28 June 2006 the appellant, Mr Cruden, was convicted on the one count he faced, a charge of burgling Thomas’ Hotel in Christchurch on 26 February 2005.

[2] As a result of a ruling by Judge Saunders on 19 June 2006, part of the Crown case at trial was similar fact evidence of his having pleaded guilty to burglary on five earlier occasions.

[3] He now appeals to this Court on the ground that evidence of his previous convictions should not have been ruled admissible.

[4] He also appeals his sentence of four years’ imprisonment.

Facts

[5] An American woman arrived in Christchurch on 25 February 2005 to holiday with her fiancé. They booked into Thomas’ Hotel at 36 Hereford Street and were allocated room 229 on the second floor.

[6] Prior to leaving the United States she had withdrawn US$1300 cash from her bank account and placed it in her luggage. It consisted of one US$100 note, twenty-two US$50 notes and five US$20 notes. En route she made a small purchase using one of the US$50 notes. Her change included two US$20 notes.

[7] On the evening of 26 February 2005 she and her fiancé attended a concert at the Christchurch Town Hall leaving about 7:30pm. They locked their room and ensured the window was secure. Arriving back at about 11:30pm they found the

room had been burgled. Entry had been gained from the fire escape. All the

United States cash was gone.

[8] At 10:02pm on 26 February 2005 a cashier at the Christchurch Casino gave a man whom she recognised as the appellant $1696 for US$1290 consisting of one US$100 note, twenty-one US$50 notes and seven US$20 notes. The appellant was filmed on the casino security camera conducting the transaction.

[9] On 22 March 2005 Christchurch Police endeavoured to contact Mr Cruden after perusing the casino videotape but were unsuccessful in locating him until September. He said he was unable to remember whether he had burgled room 229 of the Thomas’ Hotel on 26 February 2005. He made no comment as to the provenance of the US$1290 cashed by him at the casino that evening.

[10] A pre-trial hearing as to the admissibility of Mr Cruden’s previous convictions was conducted on the basis of depositions. Those convictions included:

(a) That on 26 April 2000 at about 7:15pm a ground floor window at the Round the World Backpackers at 314 Barbados Street, Christchurch, was jemmied. The intruder was disturbed. Mr Cruden was apprehended by a Police dog a short distance away. He pleaded guilty to the burglary and was sentenced to one year’s imprisonment on 28 March 2001.

(b) At about 10:30pm on 5 November 2000 unit 37 at the Central Park Motor Lodge, 18 Riccarton Road, Christchurch, was burgled by means of a window being jemmied with its catch being broken. A man was seen at the window. Mr Cruden later pleaded guilty to attempted burglary of unit 37 and was sentenced to one year’s imprisonment.

(c) During the evening of 27 December 2001 the window of a room at the Dreamland Backpackers, 21 Packe Street, Christchurch, was burgled by breaking the security stays of a slightly open window. The

burglar was filmed on the security video leaning inside the window. He was disturbed and decamped. Mr Cruden pleaded guilty to that burglary and was sentenced to two years three months imprisonment on 31 May 2002.

(d) On the following day, 28 December 2001, at about 10:30pm, a window of a unit at the Admiral Court Motel, 168 Bealey Avenue, Christchurch, was opened. An intruder was disturbed and ran off. A $100 note was taken. Mr Cruden also pleaded guilty to that burglary on 31 May 2002 and received the same concurrent sentence.

(e) At about 1:12pm on 1 October 2003 room 2-5 at the Occidental Hotel and Backpackers, 208 Hereford Street, Christchurch, was burgled. When the owner opened the room, Mr Cruden was found under the bed. The only way he could have entered the room was from the fire escape through a locked window. He was recognised by the owner as a long-term resident at the establishment. On 28 October 2003

Mr Cruden pleaded guilty to that burglary and was sentenced to six months’ imprisonment.

[11] The Judge correctly reminded himself of the relevant authorities: R v McIntosh (1991) 8 CRNZ 514 (CA), R v M [1999] 1 NZLR 315 (CA), R v Jones (2003) 20 CRNZ 583 (CA), R v Holtz [2003] 1 NZLR 667 (CA), R v Heta CA109/04 21 June 2004. He reviewed the facts including the Crown submission that the necessary distinctive similarities in the appellant’s case were the targeting of backpacker or tourist accommodation, entry by forcing windows, theft of money and offending at night when money was taken and occupants were absent. The Judge noted the appellant’s admissions of guilt concerning the earlier burglaries and held:

[24] In reaching a conclusion about the admission of the similar fact evidence, upon the basis of its probative value, I record that I have weighed the argument advanced that there are in Christchurch at any one time a number of convicted burglars who have previously targeted accommodation such as mentioned in this case.

[25] However, if a jury is satisfied that it was the Accused who cashed in American currency on 26 February 2005 at the Casino, and that money was the proceeds of the burglary of the complainant’s room

at the Thomas Hotel, then Cruden’s convictions that he has been responsible for motel/backpacker burglaries previously is very relevant to the jury in determining whether the Accused was no more than a money changer or receiver.

...

[28] Accepting that there are some minor variations as to time and whether items were stolen, I am satisfied that it could be said that there is a discernible pattern of offending which this Accused has been convicted of.

[29] The issue is then whether that has cogent probative value that outweighs the illegitimate prejudice namely that this is no more than evidence of propensity.

[12] The Judge refused the application as far as it related to an earlier conviction for receiving goods stolen from another motel.

[13] At trial, the Crown case accordingly included evidence from a number of police officers who had been involved in the earlier burglaries. They described what had occurred. Perhaps surprisingly, certificates of conviction were also produced and the jury was told of the sentences imposed on the earlier occasions.

[14] Mr Cruden gave evidence. He said he had cashed currency at the casino

“dozens and dozens of times”. He claimed the cash he converted at the casino on

26 February 2005 was repayment that day of the $2000 balance of a loan he had made to a Mr Burgess. He claimed to have documentary support for the loan but did not produce it.

[15] Mr Burgess, who was at the time also a remand prisoner with Mr Cruden at Paparoa Prison, gave corroborative evidence. He said he gave Mr Cruden US$1300, AUS$100 and the rest in New Zealand currency to make up $2000. He claimed he won the foreign currency on dog fights. He asserted he had ascertained the then current exchange rate the day before he paid the money to Mr Cruden to ensure he paid no more than $2000, but when it was put to him that, on his version of events, the total he paid Mr Cruden exceeded that sum, he claimed the excess was interest. He was vigorously cross-examined about his numerous convictions for dishonesty.

Submissions

[16] For the appellant, Mr Glover submitted the four factors accepted by Judge Saunders as exhibiting the distinctive similarities necessary to justify admission of the similar fact evidence were no more than commonplace factors present in most burglaries and accordingly it was inadmissible. Noting that identity of the burglar was the main issue at trial, Mr Glover particularly relied on observations by this Court in M, Jones and Holtz. In M, at 320 - 321, the following appears:

There can be circumstances where evidence of past conduct can strengthen an inference that the accused has repeated that conduct but there must be some significant additional feature which lifts the evidence above showing only bad character or disposition to offend generally. That will be where some special characteristic or pattern emerges from the evidence, or where there is some underlying unity between the separate events. In those circumstances evidence of the presence of the characteristic or pattern on separate occasions may increase the likelihood that they are linked. An obvious case is where identity is in issue on a charge of burglary, and the same distinctive method of entry evident in the present case has been used in previous burglaries. That suggests the same person may have committed both. The case against an accused charged with burglary may be strengthened by evidence that the accused committed a burglary on another occasion in the same manner. That is not because disreputable conduct in the past makes it more likely that there has been further offending but because offending by that particular method – with that particular characteristic or pattern – by the accused on another occasion supports the inference that the offending by that method now disclosed was by the same person. In other words, the evidence of the previous offending is directly relevant to the contentious issue of the offender’s identity.

Before the evidence may be used in this way to convict an accused person the jury must be satisfied:

1. That the accused was the person who engaged in the other conduct

2. That the other conduct exhibited the particular characteristic or pattern.

3. That there is in the conduct charged the characteristic or pattern evidenced in the other conduct.

4. That it is in all the circumstances a reasonable inference to draw that the similarity supports the allegation that the same person was involved.

5. That when taken in the context of all the evidence there does not remain the reasonable possibility that the offender was someone else.

[17] In Jones this Court emphasised that similar fact evidence must have “cogency beyond the mere propensity of an accused to commit offences of the type in issue which legitimately boosts the complainant’s credibility”: at [22]. And in Holtz this Court said:

[36] We are not persuaded that it is necessary to have different rules governing the admission and use of evidence of past conduct where identity is the issue. We do accept, however, that where the evidence is to be given with a view to establishing identity, care is necessary in assessing probative value. There is a real danger of being seduced by invalid reasoning. Evidence of a past incident which might have been that of the accused may have no probative value (or even relevance) in establishing that it was the accused who was responsible for the crime charged. That he or she might have been responsible for both incidents, without more, cannot amount to proof beyond reasonable doubt. There must be something that points to both incidents having been the responsibility of the same person and that the accused was responsible for one of them before the evidence is probative. That something may be provided in many ways. Striking similarity in the two incidents may be one of them. Other evidence linking the incidents and the accused may be available. Instead of one, there may be a series of previous incidents, each separately having little distinctiveness but when taken together compel the exclusion of coincidence.

[18] Mr Glover submitted that the similarities accepted by the Judge as warranting the admissibility of the previous convictions were matters common, even inherent, in such offending and accordingly should not have led to the ruling in favour of the Crown.

[19] For the Crown, Ms Edwards relied on Heta where evidence of eight previous convictions for burglary were admitted at trial on three counts of the same offence. All the previous convictions resulted from entries by the appellant into elderly persons’ homes during the day when, with one exception, cash was taken. This Court dismissed an appeal against an order admitting the evidence. Though the similarities might have been commonplace in isolation, in combination they showed the necessary discernible pattern. She submitted the same could be said of the ruling in contention in this case.

[20] Even were she wrong on her principal point, Ms Edwards submitted that the trial Judge – not Judge Saunders – dealt with similar fact appropriately in his summing-up, tailored his directions to the evidence, and accordingly no miscarriage of justice resulted from the admission of the similar fact evidence.

Discussion and Decision

[21] Having carefully considered the submissions, we take the view, with respect, that the similar fact evidence should not have been admitted and that the evidence given was more directed to the appellant’s propensities than probative of the case against him.

[22] Burglaries are frequently committed at night. Money is the usual target. Forced entry by window is a commonplace mode of gaining access. Burglars often target unoccupied premises.

[23] The Crown’s strongest point was that all the burglaries of which evidence was admitted were in Christchurch, in premises in reasonable proximity to each other and all were of tourists’ or backpackers’ accommodation. Hence such burglars may bank on the victim being back in his or her own country by the time of trial and be less inclined - and not compellable - to return to New Zealand to give evidence.

[24] However, in our view, that single common factor is, at least in this case, insufficient to demonstrate the necessary discernible pattern or unity in the appellant’s offending as to justify admission of his previous convictions at trial.

[25] In balancing the probative effect of the admission of similar fact evidence against its prejudicial effect in any given case – particularly where identity is in issue

– it is often of assistance to assess prejudice by posing the case converse to that for which the Crown contends.

[26] Here, the ruling admitting the appellant’s previous convictions could be seen as effectively tantamount to saying that, if he were at liberty at the time, Mr Cruden would be a suspect in any burglary of tourists’ or backpackers’ accommodation

committed in the Christchurch hospitality area. There is nothing in the timing of the offence under review when related to the similar fact offending that gave rise to a submission of pattern. Another possible factor was missing. This case is different from one such as McIntosh. Prevalent though such thefts may be, putting the matter that way demonstrates that the prejudicial admission of his previous convictions well outweighed their probative force on this occasion.

[27] We also take the view that the money-changing evidence on which the Judge relied to support his similar fact conclusion was relevant, as he said, to whether Mr Cruden was the burglar or a receiver, but was of no assistance in deciding whether evidence of the previous convictions was admissible as similar fact.

[28] We decline to accept the Crown’s submission that no miscarriage of justice occurred in the way the matter developed since, once evidence of previous convictions was ruled admissible, when he was facing an indictment containing a single count of burglary and no alternative count of receiving, there was little alternative for the appellant but to call and give evidence.

[29] We therefore allow the appeal, rule the evidence of the appellant’s previous convictions inadmissible and order a new trial. Since this would appear to be a very strong case of either burglary or receiving by the appellant and the likely result on conviction for either would be roughly comparable, it may well be that Mr Cruden faces alternative counts at his re-trial but that must, of course, be a matter for the Crown.

Sentence appeal

[30] Mr Cruden was sentenced to four years imprisonment and appealed to this

Court on the grounds that his sentence was manifestly excessive.

[31] In view of the result of the conviction appeal, it is unnecessary for us to consider the sentence appeal although, for completeness, we should record Mr Glover’s acknowledgement that the sentence imposed on the appellant, as a recidivist burglar was within the range available to the sentencing Judge.

Result

[32] In the result:

(a) The appeal against conviction is allowed, a retrial is ordered.

(b) Order prohibiting publication of the judgment and any part of the proceedings (except the result as set out in this paragraph) in news media or on internet or other publicly accessible database until final disposition of retrial. Publication in Law Report or Law Digest permitted.

Solicitors:

Crown Law Office, Wellington