Bradshaw v Police
[2017] NZHC 346
•6 March 2017
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2016-425-000041 [2017] NZHC 346
BETWEEN CRAIG ROBERT BRADSHAW
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 2 February 2017 Appearances:
L S Collins for the Appellant
S N McKenzie for the RespondentJudgment:
6 March 2017
JUDGMENT OF NATION J
Introduction
[1] On 13 June 2014, in the early hours of the morning, there was an altercation outside a bar in Queenstown. The victim, who was a security officer at the bar, was punched and kicked. Mr Bradshaw was arrested and charged with assault with intent to injure on 16 June 2014.
[2] On 17 May 2016, Mr Bradshaw’s counsel filed submissions in support of an application for dismissal of the charge against him because of undue delay. That application was argued at a hearing on 10 June 2016. The application was refused in a judgment of 13 June 2016.
[3] On 14 June 2016, after a Judge alone trial, Mr Bradshaw was found guilty of one charge of assault with intent to injure.
BRADSHAW v POLICE [2017] NZHC 346 [6 March 2017]
[4] On 17 October 2016, his application to be discharged without conviction was refused. He was fined $500 and was ordered to pay Court costs of $130 and an emotional harm payment to the victim of $750.
[5] Mr Bradshaw has appealed against sentence and conviction. Effectively, it is an appeal against each of the three decisions just referred to.
Appeal out of time
[6] The notice of appeal was filed six days out of time. The reasons given for the delay were counsel’s other commitments and the geographic separation of the appellant who was based in Auckland and counsel who was based in Queenstown. The Police do not oppose the application for leave to appeal out of time. There does not appear to be any prejudice. Leave to appeal out of time is accordingly granted.
Jurisdiction and principles on appeal
[7] Mr Bradshaw has a right of appeal to this Court pursuant to s 229 Criminal Procedure Act 2011 (CPA). I must allow an appeal only if satisfied that the Judge erred in her assessment of the evidence to such an extent that a miscarriage of justice has occurred.1 Alternatively, that a miscarriage of justice occurred for “any other reason”.2 Section 232(4) CPA defines “miscarriage of justice” as:
… any error, irregularity, or occurrence in or in relation to or affecting the
trial that—
(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
[8] In Condon v R, the Supreme Court stated that “it is not every departure from good practice which renders a trial unfair”.3 Instead, the errors or irregularities must depart from good practice in a manner that is “so gross, or so persistent, or so
prejudicial, or so irremediable” that the court must quash the decision.4
1 Criminal Procedure Act 2011, s 232(b).
2 Criminal Procedure Act 2011, s 232(c).
3 Condon v R [2006] NZSC 62 at [78].
4 Randall v R [2002] 1 WLR 2237 (PC) at [28] per Lord Bingham, cited with approval by the
Supreme Court in Condon v R, above n 3, at [28].
[9] In R v Sungsuwan, Tipping J for the Supreme Court said a “real risk” meant “a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong.”5
[10] The appeal proceeds by way of rehearing, and the court on appeal must
examine the Judge’s reasoning carefully and come to its own decision on the facts.6
[11] An appeal against a refusal to discharge without conviction is to be properly characterised as an appeal against both conviction and sentence.7
[12] Section 250 of the Criminal Procedure Act 2011 requires that the appeal be allowed if I am satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.8 I must dismiss the appeal in
any other case.9 To allow the appeal, I must be satisfied that the sentence imposed
was “manifestly excessive”.10 As has been stated:11
The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.
The appeal against the decision over delay
The District Court decision
[13] Section 147(1) CPA states that the court “may dismiss a charge at any time before or during the trial, but before the defendant is found guilty or not guilty, or enters a plea of guilty.” The section affords the Court a broad discretion.
[14] The Judge noted that the issue of post-charge delay is directly related to the right to a prompt trial under s 25(b) on the New Zealand Bill of Rights Act 1990
(NZBORA). She approached the case by following a three-step process based on the
5 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110] per Tipping J.
6 R v Slavich [2009] NZCA 188.
7 Jackson v R [2016] NZCA 627.
8 Criminal Procedure Act 2011, s 250(2).
9 Criminal Procedure Act 2011, s 250(3).
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
11 Larkin v Ministry of Social Development [2015] NZHC 680, at [26] per Toogood J.
approach approved by the Supreme Court in Williams v R12, which concerned an alleged breach of s 25(b) of NZBORA:
(a) Identify the relevant period of delay
(b) Determine whether the delay is undue having regard to the explanation
(causes) for it and any prejudice to the accused arising from the delay
(c) If there is undue delay, consider the appropriate response.
[15] The Judge identified two periods of delay. The first was the 16 months between the defendant being charged on the 16 June 2014 and the first scheduled trial date, 14 October 2015. The second period of delay was from 8 October 2015 until the trial which, after further delays, eventually took place in June 2016.
[16] The Judge was of the opinion that the initial 16 months could not be construed as undue for a court such as Queenstown which does not sit every day. The judge rejected that this period was prolonged by late disclosure provided by police to counsel but that, even if it was, the period was well within a reasonable timeframe. At any rate, it could not be called an “egregious delay”.
[17] The facts surrounding the second period of delay are convoluted and were considered in paras [28]-[40] of the Judge’s reasons. The Judge held that the delay from early October was mainly attributable to poor communication between the appellant and his initial counsel. She held that it was immaterial as to who was at fault as between the appellant and counsel – importantly, the Court and the Police were not at fault. Some of the delay was attributable to the double booking of a court, but this only prolonged the proceedings by a little over a month, from May
2016 to June 2016.
[18] The Judge further found that, even if the defendant’s rights under s 25(b)
NZBORA had been breached, the delay would not justify a stay. The Judge compared the case to Zhang v Auckland District Court, in which a delay of two and a
12 Williams v R [2009] NZSC 41, [2009] 2 NZLR 750.
half years was held not to be undue in a situation where the delay was largely institutional in nature. 13
[19] Finally, the Judge found that the appellant could not point to any specific prejudice that the delay might have caused.
The appellant’s argument
[20] In his written submissions, Mr Collins said the case was ready for a Judge alone trial on 12 August 2014 but it was not until May 2015 the matter was scheduled for a Judge alone trial on 14 October 2015, 16 months after the alleged incident. He accepted there was a delay between 8 October 2015 and December
2015 which was, as the Judge found, attributable to poor communication between the appellant and his previous counsel. There was then a delay from December 2015 until 17 May 2016 due to the availability of trial dates, and then from 17 May 2016 until 14 June 2016 because a trial scheduled for 17 May 2016 had to be rescheduled because of other urgent commitments which the Court in Queenstown had on that day.
[21] Mr Collins asked me to adopt the two stage test articulated by Tipping J in R
v The Queen:14
1. The accused is entitled to a stay if he can show that the delay has caused specific prejudice jeopardising a fair trial to the extent that there is a serious risk of a miscarriage of justice if the trial proceeds.
2. Even if he cannot show that, the accused is entitled to a stay if, in all the particular circumstances, the delay is so long and unjustified that it would be an abuse of process to put him on trial at all.
[22] In his submissions at the hearing, Mr Collins said a significant part of the initial 16 month period of delay was due to the unavailability of Court time for a Judge alone trial in Queenstown, and that there had been a further delay of six months from December 2015 to June 2016 which was also due to the unavailability of Court time in Queenstown. He said there should not be regional differences in the
time within which criminal prosecutions should be brought to trial. He argued the
13 Zhang v Auckland District Court [2012] NZHC 385.
14 R v The Queen [1996] 2 NZLR 111 (HC) at 114-115.
delay of two years from the incident to the trial was undue and the delay of itself must have prejudiced Mr Bradshaw because of the way memories could be affected over that period.
Discussion
[23] The Supreme Court recently discussed the principles that apply in cases involving undue delay in Wilson v R:15
In relation to criminal proceedings, a stay may be granted where there is a state of misconduct that will:
(a) Prejudice the fairness of the defendant’s trial…; or
(b) Undermine public confidence in the integrity of the judicial process if a trial is permitted to proceed.
[24] In another case, CT v R, the Supreme Court summarised the factors which can be taken into account when regarding whether there should be a stay of proceedings based on delay:16
(a) Delay between offending and prosecution does not erase criminal liability and the adoption of limitation periods is for Parliament and not the courts. There is no scope for a presumption that after a particular time memories are too unreliable for the purposes of a criminal trial.
(b) The adequacy or otherwise of the explanation for delay may be relevant to credibility but perceived inadequacy of such explanation of itself is not a ground for a stay, at least in the case of serious crime.
(c) A judge should grant a stay if persuaded that, despite the operation of the burden and standard of proof and the steps which a trial judge must take to mitigate the risk of prejudice, there cannot be a fair trial.
(d) The exercise does not turn on whether the Judge is satisfied on the balance of probabilities as to any particular item of alleged prejudice (for instance, that but for the delay there would have been identifiable evidence which would have assisted the defendant). Rather what is required is a judicial evaluation based on assessments of the circumstances as they are at the time of trial and of the likely prejudicial effects of the delay.
(e) Material to such assessments will be the availability (or more commonly, the unavailability) of defence witnesses, relevant documents and independent evidence of whereabouts and activity, the general
15 Wilson v R [2015] NZSC 189, [2016] NZLR 705 at [40].
16 CT v R [2014] NZSC 155, [2015] 1 NZLR 465 at [32].
impact of time on memory, any deterioration in the defendant’s physical or mental health (with consequent impact on ability to mount a defence), indeterminacy as to the specifics of the alleged offending (particularly where an isolated act of offending is in issue) and the apparent strength or weakness of the Crown case.
(f) While a defendant facing serious charges will usually have to be able to point to tangible delay-related prejudice, a combination of a very lengthy delay and a weak Crown case may justify a stay.
(g) Judges must approach stay applications on the basis that an evaluative assessment is required of the facts of the case at hand without any presupposition as to what the result should be.
[25] Mr Collins, who is a counsel based in Queenstown, explained that, because the Court there has relatively few dates when Judges are scheduled to be available for Judge alone trials, it is difficult for the Court to provide certainty as to when a hearing will take place once it is clear the matter has to go to trial. He explained that what the Court does is to remand the defendant to a nominal date with the expectation that, in the intervening period, the Court will liaise with the prosecution and defence counsel over an appropriate hearing date. If that date is at some point after the nominal date to which the defendant has been remanded, there will be a further remand with the defendant excused from having to appear before Court.
[26] With that uncertainty, there is obviously the potential for the hearing to be delayed more than would be desirable, especially so if the availability of Judges for such a hearing is limited or if neither the prosecution nor the defence are doing what they can to ensure the proceedings are brought on for hearing at the earliest time possible. The latter was probably a significant cause of the delay that occurred in this case.
[27] During that initial 16 months period, Mr Bradshaw was being represented by a Wellington counsel, Mr Fulton. In affidavits, Mr Bradshaw and Mr Fulton confirmed that, on 20 June 2014, Mr Fulton was instructed to enter a not guilty plea on Mr Bradshaw’s behalf. In August 2014, Mr Bradshaw was transferred in his employment from Wellington to Auckland.
[28] In an affidavit, Mr Bradshaw said he then left matters to his counsel and that he was not aware the proceedings had been set down for trial on 14 October 2015
but that, as far as he was aware, his case remained listed on a nominal date. He said he did recall a conversation with Mr Fulton about transferring the case up to either Wellington or Auckland but did not recall receiving advice that he would be able to transfer the case only on an intimated guilty plea basis.
[29] In his affidavit, Mr Fulton referred to a letter he had sent to Mr Bradshaw in July 2015 to the Auckland address. The letter was not returned but was apparently not received by Mr Bradshaw. Mr Fulton said he emailed him on 30 September
2015 advising him of the hearing date of 14 October 2015. He then met with Mr Bradshaw on 2 October 2015 in Wellington where they discussed various options. Mr Fulton said, as a consequence of that meeting, he emailed the Queenstown Court asking for the matter to be transferred to Wellington for plea and sentencing. Mr Fulton’s affidavit indicates that he understood there was going to be a change of plea. It also appears from Mr Fulton’s affidavit that Mr Fulton was anticipating that the better strategy would be to seek a discharge or diversion rather than have the matter go to trial, a potentially achievable outcome given two other participants in the altercation had been, or were ultimately offered diversion by, the Police.
[30] There is a record that, on 9 October 2015, the Court at Queenstown transferred the proceedings to Wellington in anticipation of a guilty plea. Mr Bradshaw may complain that Mr Fulton was not following his instructions but, whether or not that is so, it was neither the Court nor the Police who were responsible for the loss of the 15 October 2015 trial date.
[31] After 23 October 2015 there was a hearing scheduled for Wellington. On 11
December 2015 Mr Bradshaw made a voluntary appearance in the District Court at Auckland and confirmed he was still pleading not guilty and the proceedings were transferred back to the Queenstown District Court. It was not unreasonable for the Judge to attribute the delay over this period to a breakdown in communication between Mr Bradshaw and his counsel. From the Court’s point of view, there was uncertainty as to whether there still needed to be a trial.
[32] On 5 January 2016, the District Court at Queenstown noted a case review hearing had already been held. The proceedings were adjourned to a nominal Judge
alone trial date of 29 April 2016. On 19 April 2016, the proceedings were set down for trial on 17 May 2016. The trial could not proceed on that date because close to that date there was an urgent care of children matter that had to be given priority before the only available Judge.
[33] On 19 May 2016, the proceeding was set down for trial on 14 June 2016. The application for a stay because of delay was argued on 10 June 2016, with the Judge giving her decision on that application on 13 June 2016.
[34] In all the circumstances, the delay until the trial on 14 June 2016 was not so long or the reasons for it so unsatisfactory that this delay, of itself, would have justified a stay of prosecution.
[35] Significantly too, Mr Collins did not persuade me the defendant had been prejudiced by the delay. With the trial not proceeding in May 2016 as scheduled, the officer in charge of the case became unavailable to give evidence but, by agreement, his evidence was read with production of notes he had made as to his interview of the complainant on the night of the incident. Those notes were, to a certain extent, helpful to Mr Bradshaw. On being pressed, Mr Collins acknowledged that Mr Bradshaw had not been prejudiced through the officer being unavailable to give evidence at the hearing on 14 June 2016.
[36] Mr Collins suggested there might have been some prejudice in that the complainant’s evidence as to what had happened, in particular his identification of Mr Bradshaw as the person who had kicked him, had firmed up over the intervening period in a way that prejudiced Mr Bradshaw. While there is the potential for that to happen with any period of delay, in this case, the Police and the defence had a record of notes made by a Police officer as to what the complainant had said when the Police initially attended and in an extensive interview that occurred the following day. The defence were thus able to cross-examine the complainant over potential differences between his evidence as given at trial and what he had said on the night the incident occurred.
[37] On the evidence that was before the Judge at the time she made her decision on the stay application, it could not be said there had been any error in the decision which she reached. When the hearing did proceed, neither the complainant nor Mr Bradshaw suggested that their memory of what happened on the night had been affected by the delay that had occurred.
[38] Although the sentence ultimately imposed was a lenient one, the alleged assault was serious. In the circumstances of this case, confidence in the integrity of the judicial process might well have been undermined if Mr Bradshaw had been able to avoid a determination as to whether he was guilty of the offence charged through not having to stand trial simply because of the delays that had occurred.
[39] I accordingly conclude there was no error in the Judge refusing to dismiss the charge because of delay.
The Judge alone trial
The Judge’s expression of a view as to guilt during the hearing
[40] Mr Collins argued that there was a significant error in the way the trial proceeded in that, after the complainant had given his evidence in chief, the Judge gave a sentencing indication in terms of s 61 of the Criminal Procedure Act 2011 without being invited and, in doing so, expressed a “formal view” that, regardless of the charge Mr Bradshaw faced, she believed she would find him guilty as a party to assaults committed by others. Mr Collins submitted that there was a real risk that the Judge had predetermined matters and this had ultimately influenced her finding that Mr Bradshaw was guilty on the charge he faced.
[41] The transcript shows the complainant was the first witness called. He gave detailed evidence as to what happened when he was approached by three males outside the bar where he was a doorman. He said one of the males was clearly intoxicated. He told this man that he was going to be refused entry to the bar. He said he was punched by the first man he had spoken to, causing bruising to his face, but also that he was “swamped” by the second man and a third man, a man much taller than the other two. He said he attempted to hold off one of the men. He said
that, while doing this, the tall man twisted his shirt at the neck, forcing his head up. He said the tall man attempted to punch him. He fell to the ground and while there he was kicked on the left side of his head by the tall man and was later punched by him. His manager and another security guard from a different establishment arrived around that time, followed by the Police. It would have been clear to the Judge that Mr Bradshaw was distinctively tall.
[42] Just before the morning adjournment, the Judge told the witness he could leave the Court for a time. She then spoke to the Police and counsel, initially asking the Police to explain why the first two men were charged with disorderly behaviour when, on the evidence as given, they had seriously assaulted the complainant. She was plainly critical of the decision that had been made over this.
[43] There was then a discussion with Mr Collins. The Judge said the defence needed to consider the extent to which the evidence could establish that Mr Bradshaw was guilty, at least as a party, to what the other men had done, irrespective of whether he was the person who “did the king hit or any of those things”. The Judge indicated that, as the evidence stood, it seemed to her it was quite clear that at least one of the men assaulted the complainant and it appeared Mr Bradshaw was not going to be disputing this. She indicated that she thought s 66 of the Crimes Act (as to liability on a party basis) was going to be a challenge for him.
[44] Mr Collins at the time responded to what she was saying by saying there was still evidence to come and the Court had not heard from the other two people who had been charged because they had been diverted. During the course of that exchange, the Judge said that, if ultimately matters were determined against Mr Bradshaw, there would be issues of parity. She said that might be viewed more favourably if the case ended at that point. In response to that, Mr Collins asked “is that a formal indication?”. The Judge responded by saying “I will give you that formal indication. I do not think that the Sergeant will be in a position to oppose it.” She added that, if she were to grant a s 106 application, she would not be granting Mr Bradshaw costs. Mr Collins, in response to this, referred to her having “indicated a possible resolution” and obtained confirmation from the Judge that it could be achieved that day without Mr Bradshaw having to travel a third time to Queenstown
for sentencing. At the suggestion of the Sergeant, the Judge then said there would have to be some consideration of payment of reparation and emotional harm.
[45] Although the Judge anticipated the matter could be discussed and resolved over a 15 minute break, the record indicates the hearing did not resume until more than one hour and 20 minutes later. The hearing then proceeded on a fully defended basis.
[46] Mr Collins was critical of what happened, firstly because, pursuant to s 61 of the Criminal Procedure Act 2011, a Court may give a sentence indication, but only at the request of the defendant made before the trial.
[47] Mr Collins submitted that the giving of a sentencing indication during the trial puts real, improper pressure on a defendant to change their plea to guilty. He seemed to be suggesting that, in expressing the view she did at that point in the trial, the Judge had done something so improper that, of itself, this should be considered an error that has caused a miscarriage of justice. He suggested it would be rare that a Judge expresses a view such as this during the course of a trial, especially so during a Judge alone trial.
[48] For the Crown, Ms McKenzie submitted it was not unusual for Judges, either during a Judge alone trial or a jury trial, to express a tentative view as to how matters were looking and to suggest a way in which there might be some course of action adopted by either the prosecution or the defence which would bring the proceedings to an end in a way that would be for the benefit of all involved, including a defendant. That accords with my experience, such as it was, as both a prosecuting and defence counsel.
[49] Although the Judge said she was giving a “formal indication”, I do not consider that should be construed as the kind of “formal indication” contemplated by s 61(1) CPA. Section 61 clearly refers to a sentence indication which is given before trial based on a summary of fact rather than evidence given during a hearing. The indication given by the Judge was in such a different context and was so informal in nature that it was clearly not a s 61 sentencing indication. I consider the Judge
described it as a formal indication to make it clear to Mr Bradshaw and his counsel that, if Mr Bradshaw was willing to plead guilty on the basis of being a party to an assault committed by others, she would discharge him without conviction to ensure the outcome was similar to that for the others involved in the incident.
[50] Before the CPA provided for a formal process by which Judges could give a sentencing indication, it was not uncommon for Judges to express a view as to how matters might be constructively resolved based on what they had been told would be the evidence to support a charge and the potential defence. Although there was no legislative basis for this, criminal proceedings were set down for “status hearings” to facilitate that sort of discussion. At least, in smaller centres where a limited number of Judges were available, it was understood that the expression of an initial view at a status hearing would not prejudice a defendant if the same Judge had to preside at a later Judge alone trial. In the same way, it was expected that a defendant would not necessarily be unfairly prejudiced through the Judge, presiding at a Judge alone trial, being aware of a defendant’s previous criminal offending even though evidence as to that offending would have been inadmissible. Judges can and do on occasions, but more rarely, express a view as to a potential outcome on the basis of evidence that had been presented at a certain stage of a trial. Mr Collins did not refer me to any judgment on appeal where it had been held the Judge’s expression of such a view justified the overturning of a conviction.
[51] The CPA now provides for a formal pre-trial sentence indication hearing. I do not consider that, in doing so, Parliament intended to restrict the freedom of Judges to express a view as to a potential outcome when they were presiding over a trial or in other circumstances where a Judge is not giving a pre-trial s 61 sentence indication. Of course, in taking an initiative such as occurred here, Judges have to be mindful of how this might be perceived and of the way someone with an interest in this proceeding might feel, even unreasonably, that it has affected the outcome. That is easier to do in the context of a jury trial where the Judge’s remarks can be made in the absence of the jury.
[52] Even if the effect of s 61 was to limit judicial freedom in the way Mr Collins’
submissions might suggest and, even if the Judge’s initiative had been unwise, that
would not inevitably have required me to allow the appeal. If an error occurred, I would still have to be satisfied that it was an error which affected the outcome of the trial, resulted in an unfair trial or resulted in a reasonable possibility that the Judge’s decision, in finding Mr Bradshaw guilty, was less favourable than it might have been if she had not given the indication. I do not consider that her expressing the view she did had such a consequence.
[53] The Judge did express a view that, at that point in the hearing, it seemed the evidence would be sufficient to establish that Mr Bradshaw was at least a party to an assault committed by at least one of the other men that were with him. After all the evidence had been presented in this case and there had been a full cross-examination of all witnesses, the Judge’s initial assessment of the evidence, as to Mr Bradshaw having at least been a party to an assault committed by one of the other men, remained sound. The view she thus expressed was a reasonable one both on the evidence as it stood at the time and also on the basis of all the evidence that the Court heard subsequently.
[54] As it transpired, what the Judge said did not affect the way in which the trial proceeded. Mr Bradshaw did not plead guilty to either the charge he faced or a lesser charge. The trial proceeded with witnesses being called and cross-examined just as they would have been if the discussion with the Judge had never taken place.
[55] The record indicates that, when the hearing proceeded, the Judge was attentive to the evidence and asked questions herself to clarify matters. The Judge found the charge proven at the conclusion of the hearing but indicated she would give reasons in writing at a later date, which she did in a judgment of 24 June 2016. In that judgment, she began by summarising the decision-making process. In that part of her judgment she said she had considered all the evidence. She explained how she had gone about assessing the credibility of crucial witnesses. She carefully explained why she had reached the conclusions she did. There was no criticism of the approach she had taken although Mr Collins did suggest there were ways in which the conclusions she reached were not supported by the evidence. Her decision was based on her assessment of all the evidence she heard in the case.
[56] With the way the hearing proceeded and given her carefully reasoned judgment, I do not consider the Judge’s ultimate findings were influenced by a predetermined view as to Mr Bradshaw’s guilt rather than her objective assessment of all the evidence. In expressing the view she did, the Judge made it clear she was mindful of her obligation to keep an open mind and to consider all the evidence she would hear. She said there would be issues of parity “should the matter be determined”. Her statements were suitably qualified: she said “of course, I have not decided anything because I have not finished hearing the case.”
[57] Although not particularised in the notice of appeal as a ground of appeal, Mr Collins argued that the Judge’s decision must have been influenced by her pre- determination because it was unreasonable given certain aspects of the evidence.
[58] He criticised the Judge for finding Mr Bradshaw had kicked the complainant when she had a letter from an orthopaedic surgeon dated 4 May 2016 which confirmed that Mr Bradshaw had undergone extensive left hind foot and ankle reconstruction surgery in December 2012.
[59] The letter refers to his condition as at 4 May 2016. The letter said Mr Bradshaw had been advised (at the time of the letter) he should never run or be involved in activities that relate to functioning on uneven surfaces. It confirmed that Mr Bradshaw had suffered a significant injury to his left ankle. The Judge considered the evidence as to this but found, as she was entitled to on the evidence, that the kick had been with Mr Bradshaw’s right foot and would have required weight being put on his left leg only momentarily.
[60] Mr Collins submitted the Judge should not have accepted the evidence of the complainant because of its inconsistency with the evidence of an independent witness who had arrived on the scene. On the night of the offending, this witness had been working as a bouncer at an “exotic dancing establishment” in Queenstown. On finishing work at his establishment, he had come across the fracas involving the complainant. He said he saw the tall man pushing and shoving the complainant. He said he intervened and tried to separate them. He also said it looked like the three men were attacking the complainant and fists were flying. He did not succeed in
stopping what was going on and so called the Police. He did not see the complainant being kicked or on the ground but said he had been told that the complainant had been hit while he was on the ground. This witness described the complainant as being very much on the defensive and of being visibly agitated and upset. He also saw what he described as a contusion and “massive swelling” on the side of the complainant’s face. He told the Police they might need an ambulance.
[61] Under cross-examination, this witness also described what he saw as he was approaching the fracas. The sequence of movements he described and where people were was not entirely consistent with the complainant’s account of how matters had started and what happened immediately before the complainant was on the ground and was kicked.
[62] The complainant gave detailed evidence as to how he was on the ground and how he was kicked while he was there. He had an injury consistent with that explanation. The fracas was well underway when the witness first saw it. The witness said Mr Bradshaw had remained in front of him for the short time that he was trying to separate and disperse them but he did not know what had happened before then or after then and he did not know what happened when he was calling the Police and the attack was continuing.
[63] The Judge considered this witness to have been a fair and impartial witness but noted he may not have seen the whole incident.
[64] The Judge’s determination, as to whether the complainant was assaulted in the way he said, required her essentially to make an assessment as to his credibility against that of Mr Bradshaw who denied he had offended in that way. Mr Bradshaw said the complainant had one of the men in a chokehold on the ground for two or three minutes and all he had done was to try and release this man from the complainant’s chokehold. He denied punching the complainant and speaking to him in the way the complainant had described. He accepted he had grabbed the complainant by the scruff of the neck but said it was to get him to release the man the complainant had in a chokehold.
[65] The Judge made a careful assessment of the credibility of both the complainant and Mr Bradshaw. In her judgment, she explained why she preferred the complainant and why his evidence was sufficient to prove the charge beyond reasonable doubt. Mr Collins accepted that, on appeal a Court will be reluctant to interfere with a trial Judge’s determination over credibility. He also said the main issue in the case had been over identification of the person who the complainant said had kicked him.
[66] In that regard, Mr Collins was critical of the Judge for finding that Mr Bradshaw had been identified as that person. He argued that the complainant had said he saw only the leg of the person who kicked him. In making that submission, he made much of a note the Police Officer had made from his initial discussion with the complainant. This Police Officer had arrived on the scene when the group was still scuffling with each other. He arrested Mr Bradshaw almost immediately. He spoke to the complainant and saw “a huge swelling” to the left hand side of the complainant’s face. He said he made some quick notes and asked another staff member to follow this up with the complainant. The notes recorded the complainant saying “I remember one boot to the head, I think it was the tall guy that kicked me”.
[67] In giving evidence, the complainant was asked what exactly he saw at the point of being kicked. His answer was “At that point, that’s all I saw was just his leg being raised up and coming in to kick my head. That’s all I distinctly remember at that time was the kick to my head.”
[68] Mr Collins submitted that, on the basis of this, the complainant had identified the person who kicked and punched him after he had seen only the leg of the person who kicked him.
[69] I do not accept the evidential basis for identification can properly be criticised in this way. The complainant and other witnesses, such as the Police Officer who attended initially and the security guard, all confirmed that Mr Bradshaw was distinctive because he was so much taller than the other two men. He had played basketball for New Zealand. In describing what he could recall of what the three men did, the complainant referred to this distinctively tall man as male
number three. Male number three was Mr Bradshaw. Before he made the specific comment just referred to as seeing “just his leg being raised up and coming in to kick my head”, the complainant had already identified male number three as twisting his shirt up his neck, of grabbing and of trying to punch him. He said he could distinctly remember male number three because he was so tall. He said that, after he had fallen to the ground, he noticed that “male number three” was coming in with a kick. It was clear from this evidence as to the lead up to the kick that the complainant had identified the person who came towards him, and the person whose leg he saw just prior to the impact as being male number three, Mr Bradshaw. Put in context, it is clear the complainant was saying that he had identified the leg he saw immediately before the impact as being the leg of Mr Bradshaw. It was not a post-event reconstruction.
[70] It was put to the complainant that he had not been sure who kicked him when he spoke initially to the Police. It was put to him that he might have been mistaken about the identification he made. He was certain that he had correctly identified Mr Bradshaw as the person involved.
[71] The likelihood of his identification being reliable was increased because, in the context of all that occurred, Mr Bradshaw, through his height, was so distinctive. The complainant also identified the same tall man as being involved in specific actions with him before the kick and afterwards. The identification of Mr Bradshaw as being actively involved in what happened as an aggressor was also consistent with the evidence given by the security guard as to what he observed, although those observations were not as to a kick when the complainant was on the ground.
[72] There was thus an evidential basis in the evidence on which the Judge could reasonably conclude that Mr Bradshaw had both kicked and punched the complainant. The criticisms that Mr Collins made as to this did not support his submission that her ultimate decision resulted from a predetermined view as to Mr Bradshaw being guilty, at least as a party to an assault.
[73] I do not consider that the way in which the Judge expressed a view during the hearing resulted in a miscarriage of justice so as to permit or require me to allow the appeal.
Appeal against refusal of a discharge
[74] The hearing and sentencing took place on 17 October 2016. Mr Bradshaw’s application was supported by his affidavit, letters of support from his partner and former employer and the written submissions of counsel.
[75] In his submissions, Mr Collins highlighted that:
(a) this was the first time Mr Bradshaw had been arrested and charged for any offence;
(b) his previous good character, including the commitment and excellence he had shown in succeeding in sport at an elite level;
(c) prior to the commission of this offence, the Court had heard evidence of how he had been the peacemaker in earlier incidents involving the other two men; and
(d) the other two men had been given diversion on lesser charges (disorderly behaviour).
[76] In submissions before me, Mr Collins highlighted the way in which, pursuing sport to a high level, Mr Bradshaw had sacrificed and delayed the start of a working career which meant the potential consequences of a conviction could now have a greater impact on him. He also referred to other cases where courts had held it was not always necessary to show that some particular or unusual consequences of a conviction would have to exist for a discharge to be granted. He submitted, and I accept, that the courts have acknowledged that, in some circumstances, the normal consequences of a conviction can be out of proportion to the gravity of the
offending.17
17 Nash v Police HC Wellington CRI-2009-495-7, 22 May 2009 at [19].
[77] Mr Collins submitted the Judge could and should have taken into account the particular stress Mr Bradshaw had suffered through the delay in the matter coming on for hearing, together with cases in which a discharge had been granted where the Court had confidence the defendant would not reoffend.
[78] In considering the application, the Judge followed the three-step process set out in Z v R.18 There was no criticism of the factors that she took into account. They included a reference to Mr Bradshaw being on bail for close to two and a half years. In that sense, the delay in the proceedings was a matter she had considered. She referred to a mention that had been made on the day of sentencing that Mr Bradshaw could pay an emotional harm payment of $3,000 but she also referred to his denial of
the assault and her sense that Mr Bradshaw did not in fact feel remorse for what had happened. She referred to the significant effect the offending had on the victim, who had subsequently left his employment as a security guard as a consequence of the incident. She referred to the consequences which Mr Collins had suggested he would suffer as a result of a conviction. She noted that the consequences did not need to be certain. Although Mr Bradshaw had been made redundant from his previous employment while awaiting the hearing of this charge, the Judge was not satisfied this was because of the charge he faced. She did not accept that a conviction would impact on his ability to assist in the care of his daughter. She noted that, at the time of the hearing, Mr Bradshaw had found employment and she was not satisfied that a conviction would impact on that.
[79] The Judge also noted that Mr Bradshaw had pleaded not guilty. I accept a s
106 discharge can be granted after a defended hearing where someone has been found guilty but often the remorse and empathy for the victim, which is exhibited through a guilty plea, will be a significant factor in the granting of a discharge.
[80] The Judge did have regard to the delay that had occurred. She said that, after weighing up all matters, she was unable to conclude that the direct and indirect consequences of a conviction would outweigh the moderate seriousness of the
offending. She then went on to say that, even if that had not been the case, the direct
18 Z v R [2012] NZCA 599, [2013] NZAR 142.
or indirect consequences were not such as to be out of all proportion to the gravity of the offending.
[81] I have not been persuaded that there was any error in the way the Judge considered the s 106 application or that the conclusion she reached was wrong. Given the nature of the assault that occurred, the fine she imposed was, as Mr Collins acknowledged, a very light sentence. Given the sentence, it will seem to anyone concerned with Mr Bradshaw’s conviction and sentence that his assault must have been of only a minor nature. For that he is fortunate.
[82] The appeal is accordingly dismissed.
Solicitors:
L S Collins, Barrister, Queenstown
Preston Russell Law, Invercargill.
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