BRIDGEMAN v NEW ZEALAND POLICE [2018] NZHC 115

BRIDGEMAN v NEW ZEALAND POLICE [2018] NZHC 115 [14 February 2018]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2017-443-32[2018] NZHC 115BETWEEN TRACEY ANNE BRIDGEMANAppellantAND NEW ZEALAND POLICERespondentHearing: 5 February 2018Counsel: N P Bourke for AppellantG N Milne for RespondentJudgment: 14 February 2018JUDGMENT OF THOMAS JIntroduction[1] Tracey Bridgeman was convicted of common assault on 20 October 2017following a judge-alone trial before Judge Powell in the New Plymouth DistrictCourt.1 Ms Bridgeman appeals her conviction on the grounds that errors in the Judge'sanalysis has caused a miscarriage of justice.Factual background[2] Ms Bridgeman and the complainant, Jay Jay Reid, were previously in arelationship and have two daughters together. Mr Reid has been convicted of domesticviolence against Ms Bridgeman in the past and is subject to a protection orderpreventing contact with her. At some point, Ms Bridgeman became convincedMr Reid was in another relationship. On 13 February 2017, she went to his house to1 Police v Bridgeman [2017] NZDC23538.seek him out. There she encountered Rachael Castle and she asked her if she wasMr Reid's partner. Rachael said she was not. Mr Reid came to the door. AngelaCastle, Rachael's sister, was inside the house.[3] The prosecution alleged Ms Bridgeman began yelling at Mr Reid, pulled himoutside, and assaulted him by punching him repeatedly in the head. She then lost herfooting and fell over. Following the altercation, she got in her car and drove away.[4] Ms Bridgeman's evidence was that she was calm and that Mr Reid instigatedthe violence. He grabbed her by the scruff of the neck, threw her over the rail of theramp, kicking her and stomping on her head and body. He invited Rachael and Angelato kick her as well. Ms Bridgeman described managing to stop the assault only bygrabbing Mr Reid's penis.[5] The police took photographs of Ms Bridgeman which showed red marks onher neck and what appears to be bruising and swelling to her upper arm.District Court decision[6] The Judge set out facts not in dispute and described prosecution and defenceevidence before embarking on a discussion of the evidence. He acknowledged therewere differences between the accounts of prosecution and defence witnesses,including as between prosecution witnesses. Despite this, and despite Mr Reid'sprevious convictions, the Judge found he was able to find a credible narrative of eventsin the evidence of Angela and Rachael Castle, whom he treated as being essentiallyindependent witnesses.[7] The Judge was concerned that Ms Bridgeman's account was at odds withprosecution witnesses on major points, as well as being inconsistent with her initialstatement to police. He considered her evidence "incoherent", "literally incredible"and "entirely implausible". He considered the marks on Ms Bridgeman's neck to bemore akin to scratches than to signs of strangulation.[8] In concluding, the Judge stated he did not find Ms Bridgeman's accountremotely credible and rejected her version of events "in its entirety". He was satisfiedMs Bridgeman was the aggressor and assaulted Mr Reid.The evidenceJay Jay Reid[9] Mr Reid said he had been in bed and heard raised voices outside. He describedMs Bridgeman trying to push him out of the way to get inside to Angela but he stoodin the doorway and stopped her getting through, telling her to leave. He described heryelling and screaming at him and swinging at him, punching him in the head withanywhere between 10 and 20 blows. As a result, Mr Reid sustained a black eye andsplit lip. He responded by putting his arms up and shoving her. He then walked herdown the ramp as she continued to hit him in the head. She tripped over, got back up,continued yelling and screaming and left, by which time both Angela and Rachaelwere also yelling at her to leave.[10] Mr Reid said he was seeing Angela Castle at the time.[11] Mr Reid accepted he saw the police arrive at his address that night but he leftthe property. He said he left because he was aware of the protection order and believedhe would be the one to get into trouble. He said that had happened in the past whenMs Bridgeman had turned up at his house and yelled abuse at him. It was put toMr Reid that if he had sustained a black eye, he would have wanted to show the policethose injuries or taken photographs of them. Mr Reid said he had not wanted to beinvolved in the case. Ms Bridgeman was the mother of his children and he did notwant anything to happen to them.[12] Mr Reid denied grabbing Ms Bridgeman by the throat and throwing her off theporch, saying he did not touch her face or neck in any way.Rachael Castle[13] Rachael Castle described Ms Bridgeman walking up the ramp to the door whenMr Reid came out and told her to leave. They were standing just in the doorway andMs Bridgeman pulled him down the ramp. At that point Rachael went into the house.She heard arguing so she and Angela went outside, by which stage Mr Reid andMs Bridgeman were about half way down the ramp.[14] Rachael saw Ms Bridgeman punching Mr Reid in the head. She told her tostop it because there were children in the car screaming. She saw between three andfive quick punches to the head. They were reasonably strong and Mr Reid was tryingto push her off. She described Ms Bridgeman falling over, getting back up andapproaching Mr Reid again.Angela Castle[15] Angela Castle said she heard screaming and a commotion almost as soon asRachael and Ms Bridgeman arrived at the address. Mr Reid went outside and thenRachael came in. There was still some commotion between Mr Reid andMs Bridgeman so Angela went outside and saw Ms Bridgeman punching Mr Reidabout three or four times forcefully to the face when they were half way down theramp.[16] She described Ms Bridgeman having an arm around one side of Mr Reid andpunching into his face. She saw Mr Reid push Ms Bridgeman away from him andtrying to defend himself from the punches. Angela went inside and her son called thepolice.[17] Angela said Mr Reid sustained a swollen cheek bone and bruising to his eye asa result.Constable O'Byrne[18] Constable O'Byrne described Ms Bridgeman as visibly upset on his arrival atthe address, with red marks on her throat which appeared to him to be scratch marksand a red mark on her arm.Ms Bridgeman[19] Ms Bridgeman said she had become frustrated because Mr Reid was notresponding to her messages. She was messaging him on the night in question anddecided to go to his address to clarify everything. Ms Bridgeman described herself asmore upset than angry. Ms Bridgeman accepted that she had followed Rachael'svehicle to the address and they arrived at the address about the same time.Ms Bridgeman asked Rachael whether she was Mr Reid's new girlfriend and shereplied to the effect she was not but her sister was. She described Mr Reid coming tothe door with Angela standing behind him.[20] Ms Bridgeman said Mr Reid instantly picked her up by the scruff of her neckright under her chin and threw her over the railing while telling her in no uncertainterms to leave. When she stood up, Mr Reid came towards her and kept pushing herand she had to keep picking herself back up. She said she was knocked off her feetevery single time and she got up about three times. Then she said the pushing turnedinto "another strangle". At some stage, she had curled herself up on the ground andhe started "booting the shit out of me all down my body, all down my arm, all downthis side". She later said she "sprung up heaps" after she was knocked down and thenshe pulled his penis when she was on her knees and could not get back up again. Shedescribed that as her last resort and said she then just curled up on the ground and"took it".Submissions[21] Mr Bourke, for Ms Bridgeman, argues her conviction is a miscarriage of justiceon the grounds the Judge:(a) erred in stating the evidence did not support that Mr Reid and Angelawere in a relationship and therefore was not appropriately circumspectregarding Angela's and Rachael's evidence;(b) failed to give adequate weight to Mr Reid's propensity for domesticviolence against Ms Bridgeman;(c) misinterpreted and neglected medical evidence of Ms Bridgeman'sinjuries;(d) failed to consider self-defence;(e) erred in stating Ms Bridgeman's evidence was inconsistent with whatshe initially said to the police; and(f) leapt from a rejection of Ms Bridgeman's evidence to a conclusion ofher guilt.[22] He also submits the two months between the hearing and delivery of the verdictlimits the benefit the trial Judge had in hearing witnesses' evidence in person.[23] Counsel for the respondent, Ms Milne, contends the Judge:(a) gave appropriate weight to the evidence of witnesses;(b) was fully aware of and gave appropriate weight to propensity evidence,particularly that of Mr Reid's convictions;(c) appropriately considered the evidence of injuries; and(d) appropriately judged Ms Bridgeman's evidence as implausible andinconsistent and was satisfied Ms Bridgeman was guilty of assault.Law[24] The Criminal Procedure Act 2011 requires an appellate court to allow an appealwhere the trial judge erred in assessing the evidence such that a miscarriage of justicehas occurred or where a miscarriage of justice has occurred for any reason.2 Amiscarriage of justice is an error, irregularity or occurrence that has either created areal risk that the outcome of the trial was affected or has resulted in a trial that was2 Criminal Procedure Act 2011, s 232(2)(b) and (c).either unfair or a nullity.3 Not every error or irregularity results in a miscarriage ofjustice.4 A real risk the outcome was affected exists when "there is a reasonablepossibility that a not guilty (or more favourable) verdict might have been delivered ifnothing had gone wrong".5AnalysisDelay in judgment[25] This ground can be rejected entirely. The date of a judgment is when it isreleased, not necessarily when it was written and, in any event, two months is anentirely acceptable period for the time from hearing evidence to delivery of thejudgment. There are no other indicators which could support questioning the Judge'srecall.Independent witnesses[26] The Judge heard evidence from the witnesses in person and had available tohim the notes of evidence. In making veracity and reliability assessments, hecanvassed the extent of relationships between Angela and Mr Reid and betweenRachael and Mr Reid. The Judge made particular note of the fact Rachael had not metMr Reid until the day of the incident and had no reason to cover up for him. He madeno finding on whether Angela and Mr Reid were in a relationship, merely pointing outthere was conflicting evidence on which witnesses had not been challenged andconcluding both Angela and Rachael were "essentially independent" witnesses.[27] The Judge was wrong when he said the witnesses were not challenged as towhether Mr Reid and Angela were in a relationship or not. There was indeed somedifference between the witnesses in this regard. The Judge was therefore not entirelycorrect when he described both Angela and Rachael as independent witnesses.Whatever the status of the relationship between Angela and Mr Reid, they were at thevery least good friends. Rachael, however, had met him for the first time that day.She could therefore be described as independent.3 Section 232(4).4 Matenga v R [2009] NZSC 18 at [30].5 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].[28] In any event, a relationship between a witness and a complainant does notnecessarily undermine a witness' independence. The Judge acknowledged there weredifferences between the prosecution witnesses' accounts (something which is by nomeans unusual) but considered they broadly corroborated each other to "paint acredible picture" of the incident. In that context, and in the context of other evidenceat trial, that conclusion does not give rise to a concern for a miscarriage of justice.Propensity evidence[29] In December 2010, Mr Reid was a passenger in a parked car with a femaleassociate and his son. Ms Bridgeman saw them and began abusing Mr Reid and thefemale. Mr Reid got out of the car, took Ms Bridgeman by the hair and there was aphysical struggle which resulted in several small clumps and strands of her hair beingfreed from her scalp. Mr Reid pleaded guilty to criminal charges following theincident.[30] In March 2009, Mr Reid pleaded guilty and was sentenced to 10 months'imprisonment after grabbing Ms Bridgeman by the throat.[31] Mr Reid's history of violence in a domestic context is relevant evidence. Itwas fully canvassed at the trial during cross-examination by defence counsel. TheJudge specifically referenced this evidence in his decision, noting Mr Reid hadpreviously grabbed Ms Bridgeman by the neck when she confronted him on an earlieroccasion about a new partner. He nonetheless rejected Ms Bridgeman's account.[32] Propensity evidence is simply one piece of evidence in the mix and it was forthe Judge to determine the weight to be attached to it. There is no problem with theway in which the Judge dealt with this evidence.Injury evidence[33] The Judge acknowledged the injuries to Ms Bridgeman's neck and arm butfound that the evidence did not support Ms Bridgeman's account of a severe assaultby Mr Reid. He considered her injuries would have been more significant than thoserecorded in police photographs. Mr Bourke submits the Judge failed to consider,firstly, the doctor's medical notes that the marks on her neck were consistent withthumb prints and, secondly, that there was no medical evidence suggestingMs Bridgeman had any injuries to her hands as would be expected if she had indeedassaulted Mr Reid in the terms the prosecution witnesses describe.[34] The doctor's notes recorded as follows:14 Feb 2017 Hardus SwartzAttacked last night by ex partnerBruising Lt upper armRed marks ant neck-thumb marksstomped at on left side neck, head and chestResp clear. No signs rib # or bruising[35] Given this evidence supported Ms Bridgeman's version of events, I accept itshould have been referred to. However, it is not as unequivocal as the defencecontends. The doctor's notes are clearly a record of what Ms Bridgeman told thedoctor – that is, she reported she had been attacked by her former partner and she hadbeen stomped on. The report noted there were red marks on Ms Bridgeman's neckand referred to "thumb marks". The doctor was not, however, called to give evidence.There was therefore no possibility to ask the doctor about what he or she meant bythat notation or, if it was indeed the opinion of the doctor, to challenge that opinion.[36] At its highest, the doctor's notes suggest his or her opinion that there werethumb marks on Ms Bridgeman's neck. However, it is always open to a fact-finder toaccept or reject the evidence of an expert. In this case, the Judge did refer to the markson Ms Bridgeman's neck but concluded they were not obviously the result of havingbeen grabbed by the neck. He considered, as Mr Reid suggested, they appeared moreakin to scratch marks. In this regard, there was the evidence of Constable O'Byrnewho attended that night and took the photographs. It was his opinion they appearedto be scratch marks.[37] The doctor's notes do not support Ms Bridgeman's version of events in respectof other injuries. The doctor recorded the alleged stomping on the left side of the neck,head and chest but then noted there were no signs of rib damage or bruising.[38] Ms Bridgeman's lack of further injuries was, on balance, properly taken intoaccount by the Judge when assessing her evidence. Descriptions of multiple stompsand/or kicks to the head, arm and torso would reasonably be expected to produceconsiderable redness or bruising. No such marks were apparent to the police on theday in question, or to the doctor on examination of Ms Bridgeman the following day.[39] Mr Bourke also made much of the fact it does not appear anyone noticed markson Ms Bridgeman's hand that day, noting she was seen by her doctor. Punching doesnot invariably cause marks on the hands of the person administering the punch and thelack of evidence of injury to Ms Bridgeman's hands does not mean she did not assaultMr Reid by punching him. That there should have been such marks is speculation onthe part of the defence. The fact the Judge did not refer to any marks or make anyobservation about the lack thereof is not in error.Self defence[40] Mr Bourke contended there was no dispute the scratch marks were not presentwhen Ms Bridgeman had arrived at the address that night. Ms Bridgeman had beenconsistent from what she told the police that night to her evidence at the trial thatMr Reid had grabbed her by the throat. In Mr Bourke's submission, given the markson Ms Bridgeman's neck, the Judge could not be satisfied that the Crown had provedbeyond reasonable doubt that Ms Bridgeman was not acting in self-defence. Hesubmitted there was a period when Ms Bridgeman had first approached Mr Reid whenneither Rachael nor Angela were present. It could be inferred, in his submission, thatMr Reid had grabbed Ms Bridgeman around the throat at that point and, if she hadpunched him, it was in self-defence.[41] Mr Reid's evidence was that Ms Bridgeman started punching him immediately.Rachael's evidence was that Ms Bridgeman immediately started pulling Mr Reid downthe ramp as she walked into the house. She says she was in the lounge with Angelafor 30 to 40 seconds before they both went out again. Angela confirmed she andRachael were together inside for a period although she was not asked how long thatwas. Ms Bridgeman's evidence was that when Mr Reid was at the door, Angela wasbehind him.[42] Ms Bridgeman's case was not that she punched Mr Reid acting in self-defenceafter he had strangled her at the beginning of the altercation. She, on a number ofoccasions, gave evidence of a very nasty assault by Mr Reid on her before sheretaliated (or acted in self-defence) by grabbing his penis. Mr Bourke's submissionwould mean the Judge would have to consider there was at least reasonable doubt asto whether Mr Reid had put his hands around Ms Bridgeman's throat before shepunched him and that she did so in self-defence. Ms Bridgeman's evidence was thatMr Reid "instantly picked her up and threw her over the railing". None of theprosecution witnesses gave evidence that when Ms Bridgeman was punching Mr Reid,it was close in time to him having had physical contact with her other than to the extentof pushing her down the ramp. Ms Bridgeman then said that after Mr Reid had keptpushing her and she kept falling over, he then strangled her.[43] In the circumstances, the Judge was not faced with a narrative which wouldsupport the proposition that when Ms Bridgeman punched Mr Reid she was doing soin self-defence. Punching Mr Reid in the face is not a proportionate response to beingpushed down a ramp and told to leave.Inconsistent evidence[44] Ms Bridgeman gave different accounts of the incident to police, to theexamining doctor and at trial. The inconsistencies are as follows:(a) her initial statement to police said Mr Reid had thrown her over theramp railing, grabbed her throat and, when she collapsed, he stompedon her head;(b) to the examining doctor she said Mr Reid had stomped on the left sideof her neck, head and chest; and(c) at trial she said Mr Reid picked her up by the scruff of the neck, threwher over the railing, continued to aggressively push her when she gotup, strangled her several times, and kicked her on her body and her arm.[45] The extent of the inconsistences is perhaps overstated by the respondent. Thevarious accounts Ms Bridgeman has given are not entirely inconsistent with eachother. To the extent there are inconsistencies in descriptive detail, such inconsistenciescould be explained by the context in which they were given. A more detaileddescription of events is more likely at trial than either the immediate aftermath of aviolent incident or the context of a doctor's visit. Seen in that light, the Judge'scomments regarding Ms Bridgeman's credibility and his rejection of her evidence inits entirety were perhaps stated in overly vigorous terms.[46] The Judge was, however, entitled to disbelieve Ms Bridgeman's version ofevents in its entirety and in my assessment had reasonable grounds to do so. Whilehis description of her evidence could be considered harsh, it is certainly true that herversion of events, alleging an extreme assault, including being kicked and stompedon, was not supported by any other evidence.[47] Mr Bourke raises concerns that the evidence of prosecution witnesses was alsoinconsistent and says, in combination with the injury and propensity evidence, thisought to have raised doubt in the Judge's mind. Mr Bourke points out the followinginconsistencies:(a) Mr Reid and Angela claiming to hear raised voices and shouting, whereRachael gave evidence of a conversation in quiet, civil tones;(b) Mr Reid claimed Ms Bridgeman entered into the house trying to getpast him but Rachael said she grabbed Mr Reid and dragged himoutside and denied she was trying to forcefully enter the house;(c) Angela claimed to see Mr Reid in a headlock but Mr Reid did notdescribe this; and(d) Mr Reid denied touching Ms Bridgeman but Angela and Rachael gaveevidence he at least pushed her and there was the incontrovertibleevidence of the scratches on her neck. Furthermore, Mr Reid avoidedtalking to the police about the incident for some three months.[48] Rachael's version of events was put to Mr Reid, that is that Ms Bridgemangrabbed him and tried to pull him outside. Mr Reid acknowledged Ms Bridgemancould quite possibly have grabbed him and pulled him out of the way. Mr Reid clearlyacknowledged pushing Ms Bridgeman down the ramp in his evidence but denied hewas pushing her when she fell over at the end of the ramp.[49] The Judge did not refer to Mr Reid's having avoided speaking to the police forthree months, the inference being he accepted Mr Reid's explanation for that. A judgedoes not have to refer to each and every piece of evidence in outlining his or herreasons.[50] It would indeed be surprising if the prosecution witnesses had all given entirelyconsistent accounts of the events that day. The Judge acknowledged there were cleardifferences in the evidence but was satisfied as to the essential elements of the assault.Defendant's evidence[51] In Mr Bourke's submission, the Judge dealt improperly with the factMs Bridgeman gave evidence. In his submission, having rejected Ms Bridgeman'sversion of events, the Judge then leapt to a conclusion of guilt rather than assessingwhether the respondent had proved its case beyond reasonable doubt.[52] A defendant giving evidence does not change the burden of proof, whichremains on the prosecution. If the fact-finder is unsure about a defendant's evidence,then a reasonable doubt will remain. If the fact-finder disbelieves a defendant'sevidence, then he or she must assess all the evidence which is accepted as reliable inorder to decide whether the prosecution has proved the defendant's guilt beyondreasonable doubt.[53] In this case, the Judge rejected Ms Bridgeman's account in its entirety. I donot accept that he leapt from that to a conclusion of guilt. Indeed, he foundMs Bridgeman had made a deliberate choice to drive to Mr Reid's home for theexpress purpose of seeking a confrontation that night. He concluded she was theaggressor and was satisfied beyond reasonable doubt that upon arrival at the house shecommenced a physical assault almost as soon as Mr Reid came to his front door andthat the assault continued until Ms Bridgeman fell over.Stepping back[54] I have taken into account the alleged errors but, standing back and consideringthe evidence as a whole, I am satisfied there was no miscarriage of justice. The Judgecould properly have been satisfied beyond reasonable doubt that Ms Bridgemanassaulted Mr Reid by punching him on 13 February 2017.Result[55] For the reasons given, the appeal is dismissed.Thomas JSolicitors:Crown Solicitor's Office, New Plymouth