Clark v Police [2014] NZHC 154 (13 February 2014)

Last Updated: 18 August 2017

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2013-485-90 [2014] NZHC 154

BETWEEN	SEAN CLARK Appellant
AND	POLICE Respondent

Hearing:	11 February 2014
Counsel:	K Preston with G Lowe for Appellant M J Ferrier for Respondent
Judgment:	13 February 2014

JUDGMENT OF THE HON JUSTICE KÓS (Leave to appeal pre-trial ruling)

[1] Mr Clark is charged in the District Court with possessing instruments capable of being used for burglary, with intent to use them for such a purpose and without lawful excuse.

[2] A pre-trial application was made by the prosecution. It was to admit propensity evidence relating to the defendant’s previous conviction for possession of instruments for burglary. On 28 November 2013 Judge Moran ruled that evidence was admissible.

_{[3] The appellant now seeks leave to appeal that decision.}

CLARK v POLICE [2014] NZHC 154 [13 February 2014]

Background

[4] At 1 am on Friday 16 August 2013, police were called to respond to an apparent attempted burglary at an address in Anne St, Wadestown. A garage door lock had been tampered with.

[5] Very soon after the callout the police stopped the appellant. It seems the police may already have been in the street at the time. He was driving his van in Anne St at the time. The police noticed a set of tools sitting on the front seat of his van. These included black leather gloves, a torch, a large set of keys, a screwdriver and bolt cutters. Upon a search of the van, police located a set of lock picks in the front passenger footwell.

[6] The defendant said at the time he was driving in Anne St to avoid police alcohol checkpoints. He explained that the tools were for his use as a handyman. The lock picks came from an engineering apprenticeship he did not complete.

Proposed propensity evidence

[7] The prosecution proposes to lead evidence of a previous incident for which the appellant was convicted of possession of instruments for burglary, and burglary itself. At 1 am on a night in July 2008, the appellant boarded a boat berthed at the Mana Marina, Porirua. The appellant unclipped an awning and entered the cockpit area. Using a small LED torch, the appellant attempted to unlatch the door into the cabin, to get access to the lower level of the boat. The noise woke the occupant. He confronted the appellant. The appellant said he was “security” and decamped. Police located the appellant a short distance from the Marina with the LED torch, a pair of gloves, and a Swiss army knife in his pockets. The appellant’s explanation was that he was going for a walk. He had the torch and knife for safety, while the gloves were because it was cold. However when push came to shove, he pleaded guilty to the two charges noted above.

Decision appealed

[8] In a brief decision, Judge Moran identified the issue in dispute: the appellant accepts that he was in possession of the tools, but says that he did not intend to use them for burglary. So intent is the issue. The Judge held that the previous convictions showed that the appellant had a propensity to commit burglaries and have instruments on his person for burglary, in similar circumstances. Any prejudice was not unfair because this was a Judge-alone trial and the evidence could be given its proper weight.

Analysis

Issue in dispute

[9] The issue in dispute is whether the appellant intended to use the tools for burglary. There is no dispute that they are capable of being used as tools for burglary, and that they were in his possession.

Relevance

[10] The evidence in question is at least relevant to that issue of intent. The fact that someone has previously possessed implements with the intention of using them for burglary, and in fact has committed a burglary with them, may assist in proving the appellant had an intention to commit burglary in the present case.

Propensity evidence?

[11] Propensity evidence must tend “to show a person's propensity to act in a particular way or to have a particular state of mind”.¹ The proposed evidence shows the appellant’s propensity to have a particular state of mind when found in possession of implements capable of being used for burglary. That state of mind is

_{an intention to burgle.}

¹ Evidence Act 2006, s 40(1).

[12] In my view that is a sufficiently specific propensity. There are close linkages between the two sets of offending. Both times, the appellant was found at the same early hour of the morning, in possession of gloves and a torch, along with other tools capable of being used for burglary. In the 2008 incident it was proven that the appellant had the intention to use those implements for burglary. Therefore in the present similar circumstances, it may be inferred that the appellant has a propensity to intend to burgle.

Probative value

[13] The appellant submits that the propensity in question is too general to have any real probative value. Alternatively, if it is sufficiently specific, the present facts are so dissimilar to previous offending as to give the evidence a low probative value. The appellant relies in particular on the decisions of Grimshaw v R² and Rei v R.³

[14] In Grimshaw the defendant had a previous conviction from 2008 for low level dealing in amounts of 1 gram or less of methamphetamine, as a broker between friends. She did not have the financial resources to have large quantities of methamphetamine. The defendant was then charged in 2011 with possession of 56 grams worth of methamphetamine for supply, far in excess of what a street level dealer would be involved in. The issue at trial was whether the defendant had knowing control of the methamphetamine. The Court of Appeal ruled that while the

2008 incident was propensity evidence in relation to the 2011 charge, it had limited probative value. It only demonstrated a tendency to supply methamphetamine as a broker in small quantities. It did not show a particular tendency to possess considerable quantities of methamphetamine. That greatly reduced the probative

value of the evidence.⁴

[15] In Rei the defendant had a previous conviction for manufacturing methamphetamine on his property. The defendant was then charged with possession of methamphetamine for supply and implements for manufacture found in a garage

_{on his property. The defendant alleged that the items had been placed there without}

² _{Grimshaw v R [2013] NZCA 22.}

³ _{Rei v R [2012] NZCA 398, (2012) 25 CRNZ 790.}

⁴ Grimshaw v R [2013] NZCA 22 at [16].

his knowledge. Therefore the issue in dispute was the identity of the person who placed the methamphetamine in his garage. The Court of Appeal held that the previous incident of manufacturing revealed no more than a general tendency to be involved in offending of the kind alleged. The reasoning that the defendant’s propensity to be involved in the manufacture of methamphetamine made it more likely that he had placed the items in the garage, as opposed to another person, was counterbalanced by the fact that the defendant’s involvement in the drug scene made

it more likely that some other drug dealing associate had placed the items there.⁵

[16] In cases such as this, the issues turn on fine distinctions as to the matters in dispute. I am satisfied that the proposed propensity evidence meets the bare particularity threshold. The more important question is how probative the evidence is by reference to the matters in s 43(3), including the similarities between the incidents.⁶

[17] The appellant submits that because the 2008 incident occurred five years ago, it is insufficiently connected in time to the present offending. I disagree. As the respondent points out, the appellant has been imprisoned for at least three of those five years. It is probative that when given the opportunity to reoffend, the appellant is alleged to have done so in a similar manner a relatively short time after his release.

[18] The appellant also placed much weight on the submission that the two incidents have factual differences. Counsel submits that the fact the instruments were found beside the appellant in his vehicle, as opposed to on his person, and that he did not actually enter any premises in this case, makes the incidents distinguishable. I disagree. Put baldly, when found in a public place at 1 am on a weeknight, in possession of gloves, a torch, and other tools capable of being used for burglary, the appellant is more likely than the average motorist to have the intention to commit burglary with those tools because he has done that before. The fact that one event occurred on a boat moored in a marina, and the other at a garage more

_{firmly fixed to terra firma, is also not a distinction that should trouble the tribunal of}

⁵ _{Rei v R [2012] NZCA 398, (2012) CRNZ 790 at [47].}

⁶ Preston v R [2012] NZCA 542 at [50].

fact. As the Court of Appeal observed in Preston v R, the Act does not require

“striking similarity” between events.⁷

[19] I find the proposed propensity evidence has a moderate probative value in regards to the appellant’s state of mind when in possession of the implements. It is moderate only, because it represents a single prior instance only. Albeit one with sufficient particularity to be admissible as propensity evidence.

Prejudicial effect

[20] There is some prejudice to the appellant in having this evidence admitted. But it is not I think unfair prejudice. The propensity evidence does not strip the appellant of the ability to conduct an effective defence. Its moderate probative value merely increases the likelihood that the appellant intended to use them for burglary. The Judge will still have to determine the credibility of the appellant’s statement to police that they were for his use as a handyman.

[21] What is more, the tribunal of fact here will be a Judge alone. Judges are frequently called upon to put out of their mind evidence inadmissible altogether. At one extreme, Judges dealing with a summary trial may have the whole of a defendant’s criminal history before them on a bail or pre-trial application. The Judge may be trusted to disregard that information in then assessing guilt. In this case, provided the Judge self-directs appropriately, any prejudice is entirely manageable and will not be unfair. The Judge will be cognisant of the inferential limits available from this single admissible prior instance, and will need to record that in his or her findings.

[22] I find that prejudice to the appellant is not unfair. The Judge did not err in noting that the threshold for unfair prejudice is effectively higher in a Judge-alone trial.

[23] I find that the moderate probative value of the evidence outweighs the minor prejudicial effect of finding it admissible.

⁷ At [49].

Result

[24] Leave to appeal granted. [25] Appeal dismissed.

_{Stephen Kós J}

Solicitors:

Public Defence Service,Wellington for Appellant

Crown Solicitor, Wellington for Respondent