IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA522/2018
 [2018] NZCA 530

	
BETWEEN	
ADAM SHAY SPARKS
Applicant 	
	
AND	
POLICE
Respondent	

Hearing:	
7 November 2018	

Court:	
Clifford, Dobson and Mander JJ	

Counsel:	
C J Tennet for Applicant 
K S Grau for Respondent 	

Judgment:	
28 November 2018 at 3 pm	

JUDGMENT OF THE COURT

A	The application for an extension of time to apply for leave to bring a second appeal is granted. 
B	The application for leave to bring a second appeal is declined. 
____________________________________________________________________

REASONS OF THE COURT

(Given by Dobson J)
[1]	Following a judge alone trial in the District Court, Mr Sparks was convicted on three charges of burglary.  He has now applied, out of time, for leave to bring a second appeal against two of those convictions on a question of law. 
[2]	Mr Sparks’ convictions for the three burglaries were entered on 12 October 2017 and he was sentenced on 10 November 2017 to concurrent sentences of three years and three months’ imprisonment.  Mr Sparks’ first appeal against two of three convictions was dismissed in a judgment of Davidson J issued on 30 April 2018.
[3]	The application for leave to bring a second appeal was filed relatively soon after expiry of the time limit for doing so.  As explained in an affidavit from Mr Sparks, the delay was caused by his difficulty in retaining counsel to act for him on the application.  For the respondent, Ms Grau did not raise any prejudice and leave to bring the application out of time was not strenuously opposed.  We therefore grant that application.
[4]	The respondent did, however, oppose the application for leave to bring a second appeal.  It is that application which is the subject of this judgment.
The facts 
[5]	On three Sunday nights in June and July 2015, burglaries were committed in three commercial premises in Christchurch: Animates, Coupland’s Bakery and Mitchelli’s Café.  The modus operandi adopted on each occasion was the same.  The burglar used tin snips to cut holes in the roofing iron, gained access from the roof into the ceiling cavity of each of the premises and from there into the office area where the weekend takings of the respective businesses were kept.  
[6]	The evidence was the strongest in relation to the third of the burglaries, that of Mitchelli’s Café.  This took place on 12 July 2015.  The burglar broke through the ceiling plasterboard after gaining access through a hole cut in the roofing iron, removed a cash box containing $3,000 in cash and departed back out through the roof.  CCTV footage showed the cash box being thrown from the roof.  CCTV footage earlier on the same day recorded Mr Sparks and another person at the shopping complex, and the night time footage recorded two people of the same description wearing the same clothes.  The footage also recorded a vehicle, which appeared to be the same as one that was found abandoned 350 metres from Mr Sparks’ home.  It had his fingerprint inside. 
[7]	Two Sunday evenings earlier, on 28 June 2015, a burglar had broken into the office of Coupland’s Bakery.  Entry was gained by cutting through the roofing iron with tin snips and accessing the ceiling cavity.  The burglar removed some ceiling panels, obscured a security camera, broke into the safe, and removed cash of approximately $8,000.  
[8]	Two Sunday evenings earlier than the Coupland’s Bakery burglary, on 14 or 15 June 2015, a person had broken into an Animates business.  On that occasion, the burglar cut a hole through the roofing iron with tin snips, cut a hole in the ceiling, disabled the security system and removed the safe containing $6,000 in cash.  Some two months after that burglary, Mr Sparks posted a photograph on Facebook showing a small safe in the boot of a car, with the commentary “Late night in a Benz”.  Although the safe was not positively identified, a representative of Animates said the safe matched the general description of that taken from their premises.  
The District Court and High Court judgments
[9]	After Mr Sparks was charged with all three burglaries, an unsuccessful application was brought for severance of the charge relating to the burglary of Mitchelli’s Café.  The Police had signalled their intention to use that burglary as propensity evidence in relation to the two earlier burglaries.  A pre-trial District Court ruling declining severance held that, although the issue would ultimately be for the trial judge, the evidence should be cross-admissible as propensity evidence on all of the three charges.  
[10]	At the subsequent judge alone trial, Judge Saunders found Mr Sparks guilty of the Mitchelli’s Café burglary.  The Judge undertook a propensity analysis to rely on the same features in the modus operandi used in the first two burglaries to be satisfied beyond reasonable doubt that Mr Sparks had also committed them.  The Facebook photograph was a relevant piece of evidence to consider alongside the propensity evidence.  
[11]	Mr Sparks’ appeal to the High Court was argued on the basis that he accepted the conviction for the Mitchelli burglary.  He challenged the other two convictions on the grounds that the District Court ought to have severed the Mitchelli charge.  Not doing so arguably led to the wrongful admission of propensity evidence, rendering the convictions on the Animates and Couplands’ burglaries unreasonable.  
[12]	Davidson J found that evidence of the Mitchelli burglary was legitimately applied as propensity evidence in relation to the burglary of Coupland’s Bakery and the Animates burglary.  The similarities in the modus operandi of all three were distinctive.  The totality of the evidence led the Judge to the conclusion that the similarities between the offending were striking.  By also taking into account Mr Sparks’ Facebook posting, the evidence was sufficient for the District Court Judge and for the High Court to be sure of Mr Sparks’ guilt.  
The application for leave 
[13]	The application for leave is brought under s 237(1) of the Criminal Procedure Act 2011.  To grant leave, this Court must be satisfied that the appeal involves a matter of general or public importance, or that a miscarriage of justice may have occurred. 
[14]	Mr Tennet, who had not been involved at any earlier stage of the case, characterised the point of general or public importance as the test that should be applied for using propensity evidence to convict someone where the propensity evidence was all circumstantial.  The real gravamen of Mr Sparks’ complaint is the adequacy of the evidence for finding that he committed the two earlier burglaries.  
[15]	We were not persuaded by Mr Tennet’s arguments that these concerns could raise a question of general or public importance.  By its nature, propensity evidence is always circumstantial.  The reasons for convicting and then upholding those convictions are specific to the evidence on each of the charges.  Mr Tennet could not articulate a question that would have wider application.  After argument, Mr Tennet accepted that a challenge to the admissibility of the propensity evidence could not constitute a matter of general or public importance.  
[16]	Mr Tennet also raised the prospect that the way in which the propensity evidence had been applied gave rise to the risk of a miscarriage of justice.  We disagree.  The pattern evident from the cross-propensity evidence in this case was compelling.  We see no concern that the sufficiency of evidence could raise a risk of a miscarriage of justice.  
Result
[17]	The application for an extension of time to apply for leave to bring a second appeal is granted. 
[18]	The application for leave to bring a second appeal is declined. 

Solicitors:
Crown Law Office, Wellington for Respondent