Police v Paul [2017] NZDC 28213 (12 December 2017)

Last Updated: 1 August 2018

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT WHANGAREI

CRI–2017–088–002276

[2017] NZDC 28213

NEW ZEALAND POLICE

Prosecutor v

TEKAPO RANGI PAUL Defendant

Hearing:	10 November 2017
Appearances:	Sergeant G Lane for the Prosecutor S Thode for the Defendant
Judgment:	12 December 2017

RESERVED JUDGMENT OF JUDGE D J McDONALD

[Propensity]

[1] The defendant Tekapo Paul faces one charge of intentionally and obscenely exposing his genitals in a public place. He has pleaded not guilty. As is carries a maximum of three months’ imprisonment he has no right of election to be tried by a jury, therefore will be tried Judge alone.

[2] The police seek to call propensity evidence:

• (a) Nine convictions for obscenely exposing himself in public which were entered on 17 September 1980 for offending on 1 July 1980;
  

NEW ZEALAND POLICE v TEKAPO RANGI PAUL [2017] NZDC 28213 [12 December 2017]

(b) Two convictions entered on 3 February 2010 for offending on 16 June 2009 of unlawfully being in an enclosed area and lurking, loitering, peeping and peering near a dwelling;

(c) On 14 July 2010 being warned by the police for wandering around outside his home naked and in view of neighbouring properties and young children.

[3] It is opposed by the defendant.

[4] I heard argument on 10 November 2017 and ruled that the police could call as propensity evidence and convictions entered on 3 February 2010 and the warning given on 14 July 2010 but could not in relation to the convictions for obscene exposure on 17 September 1980. I reserved my reasons. I now give them.

[5] Sergeant Lane in his written submission said that all the offending shows the defendant’s propensity to act in a particular way, being evidence of exposing himself in public on nine occasions in 1980, and the circumstances of being partially clothed, wearing only a shirt, outside a private residence in June 2009 and he being warned, wandering around outside his home naked and then the current alleged allegation that he was sitting in his motor vehicle outside [a restaurant] at 3.30 pm on Tuesday 8 August 2017, masturbating as pupils from [a girls high school] were walking by.

[6] Sergeant Lane submitted that having regard to s 43(3) that the evidence was clearly admissible. While all evidence is prejudicial it would not be unfairly so, particularly as this is a Judge alone trial.

[7] Ms Thode, for the defendant, submitted that the convictions on 17 September 1980 should not be admitted. She said that there were, in fact, five convictions entered and that the four following convictions appear to be a double up due to administrative errors. Due to the age of the convictions, neither the Court nor the police have a physical or electronic file. The police are not able to provide a copy of the summary of facts relied on at sentencing. She submitted that that evidence is, “Too old.”

[8] In relation to the 2009 convictions, she said that the police rely on a single similarity, that both the offending and the current offending was sexually motivated behaviour. However, they were markedly different.

[9] In the 2009 incidents, he was in a property nearby to where he lived and he entered through a gate that goes into the back section of the complainant’s address. He was wandering around at about 5.58 pm on 16 June, 2009 in the dark, naked from the waist down.

[10] In relation to the current offending, it was the middle of the afternoon. He was seated in his motor vehicle with the windows up. The windows of his vehicle may be partially tinted.

[11] So as far as the warning that he was given, the circumstances of that warning, walking around his own property, albeit naked, is markedly different from the current offending. She submitted that the prejudicial effect of the evidence would outweigh its probative value. It would unfairly predispose the factfinder, the Judge, against the defendant and that the factfinder will tend to give disproportional weight in reaching a verdict.

Discussion

[12] I will first set out the factual basis for each.

The current alleged offending

[13] The police contended that at about 3.30 pm on Tuesday 8 August 2017, Mr Paul was parallel parked in his Mazda motor vehicle on Bank Street, near [a restaurant] in Whangarei. A number of [girls high school] pupils were walking down Bank Street at the time. The police will be calling evidence that it is common for school pupils to walk down Bank Street at the end of a school day at that time. One of the pupils observed through the passenger window of Mr Paul’s vehicle that he had his penis out on top of his pants and was masturbating. He gave the appearance of not caring where he was or what he was doing or who was around. The police were called.

The police approached. He appeared startled. He did not have his penis out at the point the police approached him. His explanation was that he was just parked there and was playing with his phone.

The 1980 offending

[14] The police have no summaries of fact in relation to the either five or nine convictions for indecent exposure.

June 2009 offending

[15] The complainant, a sixteen year old female, became aware that a person may be prowling around her home during the hours of darkness. She believed that she saw a person outside her bedroom window. As a result of her concerns her father had a security camera set up near the house on 16 June 2009, with the intention of attempting to capture footage of the prowler.

[16] At about 5.58 pm on 16 June 2009, Mr Paul, who then resided nearby, entered the complainant’s property through a gate giving access to the back of the complainant’s section. He approached the back of the house. He was captured on the security surveillance system looking into the complainant’s bedroom. At the time, he was only wearing a t–shirt and was naked from the waist down. Four photographs show that.

July 2010 offending

[17] On 14 July 2010, the police responded to a complaint of a male person wandering around outside their address naked. That was in view of neighbouring properties which contained young children. The defendant was warned by the police.

[18] I must first decide whether the evidence sought to be called satisfies the statutory definition of propensity evidence, that is:

To show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances of which the person is alleged to have been involved.

[19] I am clearly of the view that the evidence of the offending in 2009 and 2010 does meet that definition. It tends to show Mr Paul’s propensity to expose himself to young persons. The 1980 convictions do not; as I have nothing but this bare conviction. In any event even if the 1980 offending met the criteria I would not admit it, it is too old.

Should the evidence be admitted?

[20] In Mahomed v R1 it emphasised that the purpose of admitting propensity evidence is grounded in the concepts of linkage and coincidence. Propensity evidence must have some specificity.

The issue in dispute

[21] The issue in dispute is whether he was sitting in his car masturbating (as the police allege) or was innocently playing with his cell phone unexposed (as the defence contend).

Section 43(3)

(a) Frequency

The alleged offending occurred on 8 August 2017. The proposed propensity evidence first took place in 1980, then in 2009, then in 2010.

(b) Connection in time

There is eight years between the 2009 and seven years between the 2010 offending and the alleged offending in 2017.

(c) Similarities

1 [2011] NZSC 52, [2011] 3 NZLR 145

There is a degree of similarity between the 2009 and 2010 offending and the alleged offending in 2017. The same cannot be said of the 1980 offending because there is no evidential basis to be able to conclude that. All I have is the convictions.

(i) He took a high risk of being seen naked by young people or children.

(ii) He did not approach directly the persons who saw him.

(iii) He put himself in a position where he would, in all probability, be seen by young girls.

(iv) It was sexually motivated behaviour.

Number of persons making the allegation

(d) There is one person making the allegation in each case.

Collusion or sensibility

(e) There is no evidence or suggestion that this has occurred.

The extent to which the acts being tried are unusual

(f) It is unusual for a adult male, who was born on 12 August 1959, to be exposing himself in such a way where there is a high possibility where he would be seen.

[22] I am satisfied the evidence proposed to be called by the police is propensity evidence and therefore I must move to assess whether the prejudicial effect of the evidence outweighs its probative value.

[23] Obviously, the evidence is prejudicial but I do not consider this unfairly so in relation to the 2009 and 2010 incidences. This is a Judge alone trial. The evidence

may assist the Judge in determining whether this was as the police allege or quite innocent as the defence allege.

Result

[24] The 1980 convictions for obscene exposure cannot be called. They are too old. I have nothing bar the convictions themselves. There is no summary of facts or any other documentation setting out what he did.

[25] The 2009 convictions and the 2010 warning are propensity evidence. They are probative. The evidence will not unfairly predispose the factfinder nor will it be given disproportionate weight.

[26] That evidence can be called.

D J McDonald District Court Judge