Bradshaw v The Queen
[2015] NZCA 98
•26 March 2015 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA329/2014 [2015] NZCA 98 |
| BETWEEN | ALEXANDER GERALD BRADSHAW |
| AND | THE QUEEN |
| Hearing: | 3 March 2015 |
Court: | Harrison, Fogarty and Dobson JJ |
Counsel: | S J Zindel for Appellant |
Judgment: | 26 March 2015 at 3 pm |
JUDGMENT OF THE COURT
The appeal against conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Harrison J)
Introduction
Alexander Bradshaw was found guilty after a trial before Judge Zohrab and a jury in the Nelson District Court in May 2014 on two charges of male assaults female.[1] He was convicted and sentenced to nine months supervision and 180 hours community work.[2]
[1]Crimes Act 1961, s 194(b).
[2]R v Bradshaw DC Nelson CRI-2013-042-536, 23 May 2014.
Mr Bradshaw appeals against his conviction only. He alleges error or incompetence by his trial counsel, Mr Daniell-Smith, and prosecutorial misconduct. Both Messrs Bradshaw and Daniell-Smith were cross-examined before us on affidavits filed in advance of the hearing.
Facts
Mr Bradshaw and his girlfriend, who we will call YZ, were in a relationship of some months duration. It was characterised by a degree of mutual volatility. One day in late February 2013 YZ advised Mr Bradshaw of her intention to end the relationship.
The Crown’s case was that Mr Bradshaw reacted angrily to this advice. YZ picked up her cell phone to call for help. Mr Bradshaw attempted to grab the phone and in the course of a struggle YZ said he grabbed her hands. At some stage Mr Bradshaw’s sister, Ms Natalya Bradshaw, appeared and attempted to calm him.
Under cross-examination by Mr Daniell-Smith at trial, YZ admitted that during an argument a week or so earlier she had bitten Mr Bradshaw’s finger, and that during the scuffle over the cell phone she bent his fingers back and kicked him.
Subsequently, while still in the room with YZ, Mr Bradshaw picked up a chair and threw it across the room but nobody was struck. Later, however, when YZ was seated back on a couch the Crown alleges that Mr Bradshaw punched her in her stomach. She was not injured but suffered some discomfort.
YZ called the police. An officer later interviewed Mr Bradshaw. Her evidence was that he was in a very agitated and angry state. In answer to the officer’s question about the phone incident Mr Bradshaw said:
It was an argument about nothing. I tried to get the phone. She bit my finger and tried to kick me.
In answer to the officer’s question about whether he later punched YZ in the stomach, Mr Bradshaw stated:
I was trying to get her phone and restraining her. This is fucking bullshit.
YZ and Mr Bradshaw apparently reconciled after these events and their relationship continued intermittently for about three months before it finally ended.
Mr Bradshaw’s punch to YZ’s stomach was the subject of the sole charge of assault contained in the original indictment. By the second day of the trial, the Crown applied successfully to amend its indictment by adding an additional count of assault arising from the scuffle over the cell phone. It is unclear why this second charge was not included in the original indictment but it was, by any measure, a very minor offence.
The Crown’s evidence at trial was from YZ and the police officer who interviewed Mr Bradshaw. He did not give evidence in his own defence but called his sister as a witness.
Appeal
Mr Bradshaw alleges that an error or errors by Mr Daniell-Smith caused a substantial miscarriage of justice and that as a result there is a real risk that the verdicts are unsafe. In a memorandum filed in August 2014 Mr Zindel gave notice of 14 alleged errors by Mr Daniell-Smith. However, in argument Mr Zindel limited Mr Daniell-Smith’s alleged errors to three: (1) providing a brief of Ms Bradshaw’s evidence to the Crown before trial without Mr Bradshaw’s authority and in any event incompetently; (2) failing to advise Mr Bradshaw properly on whether to give evidence in his defence at trial after the indictment was amended by adding the second count; and (3) failing to properly brief Ms Bradshaw’s evidence before it was given. Additionally, Mr Bradshaw alleged that (4) the Crown prosecutor was guilty of misconduct when cross-examining Ms Bradshaw and addressing the jury.
We shall address each ground in turn.
Ms Bradshaw’s witness statement
First, Mr Bradshaw asserts that Mr Daniell-Smith acted without his authority and in any event incompetently in sending to the police before trial a copy of an unsigned statement which was prepared for Ms Bradshaw by her uncle – a civil litigation lawyer who was then visiting from London. Mr Zindel submits that the Crown used the statement in cross-examination of Ms Bradshaw “to devastating effect”, to discredit her by identifying inconsistencies between the version of events which she had narrated to her uncle and her account on oath at trial.
Mr Bradshaw denied that he was ever consulted about Mr Daniell-Smith’s decision to disclose a copy of his sister’s brief to the police. He said that he only learned about it during or after the trial. Mr Daniell-Smith remembers that Mr Bradshaw and his mother, who appeared to have a significant input into the conduct of her son’s defence, agreed to his proposal to disclose a copy of the statement to the police in an attempt to avoid prosecution completely. We accept Mr Daniell-Smith’s evidence. Our inquiry focuses on the reasonableness of his advice.
Mr Daniell-Smith’s disclosure advice was against the background of the Bradshaw family’s anxiety to persuade the police to withdraw the assault charge. YZ gave damaging evidence at trial of two attempts by the Bradshaw family to apply pressure on her for this purpose. The first occurred a day after the assault. Ms Bradshaw and her mother drove YZ to the police station to request that the charge be withdrawn. Then a week later YZ wrote to the police with the same request following approaches from Mr Bradshaw and his mother. The prosecutor, Mr Webber, made much of this evidence in his closing address to the jury.
When interviewed by the police shortly after the incident, Ms Bradshaw refused to make a statement. In Mr Daniell-Smith’s view Ms Bradshaw’s refusal was unwise but the police may nevertheless consider withdrawing the charge if a brief of her evidence was provided even at a late stage.
It was against this background that Mr Daniell-Smith wrote to the police, about three weeks after the alleged assault, enclosing brief and unsigned statements made by Mr Bradshaw and Ms Bradshaw which their uncle had typed up while they were at a café in Nelson. In his letter Mr Daniell-Smith said:
Ms Bradshaw would still be prepared to make a sworn statement if you were prepared to take that from her, and that of course may make all the difference in terms of whether you wish to proceed with the prosecution.
When viewed in context we are not satisfied that Mr Daniell-Smith’s advice fell into the category of an error giving rise to an irregularity in the trial which prejudiced Mr Bradshaw’s chance of an acquittal. Mr Daniell-Smith had little scope for running an effective defence at trial. The police case against Mr Bradshaw was strong. Mr Bradshaw had no basis for suggesting that YZ’s complaint was fabricated; she had no identifiable reason for falsely asserting that Mr Bradshaw had hit her either while they were scuffling over the cell phone or while she was seated on the couch.
Mr Bradshaw realistically admitted that he would not be a good witness in his own defence and would have difficulty giving evidence at trial. All he could rely on was his bald denials to the police officer. There was also the adverse evidence of the family’s pressure on YZ. The strategy of attempting to persuade the police to withdraw the charge by providing copies of exculpatory briefs prepared by Mr Bradshaw and his sister was one of last resort but not unreasonable.
Mr Zindel is correct that Mr Daniell-Smith’s advice was inadequate in failing to explain to Mr Bradshaw that the police would be able to use his sister’s brief statement at trial if the prosecution proceeded and she gave evidence. Mr Daniell-Smith can also be criticised for failing to ensure that Mr Bradshaw confirmed his instructions in writing and in failing to send to him a contemporaneous copy of his letter to the police. Ultimately, however, Mr Daniell-Smith’s advice to provide copies of the statements to the police was not unreasonable in the circumstances. Nor can it be characterised as erroneous. There would of course have been no appeal if the police had decided to withdraw the charge following receipt of Mr Daniell-Smith’s letter. Hindsight provides invaluable insights.
We add our satisfaction that no miscarriage could have arisen from Ms Bradshaw’s evidence at trial. She was subjected to intensive and at times argumentative cross-examination. The prosecutor identified some inconsistencies between Ms Bradshaw’s statement and her evidence-in-chief. Examples are Ms Bradshaw’s statement that her attention was originally drawn by the sound of her brother shouting upstairs when at trial she said she heard both parties; and her omission to state that when she saw YZ and her brother scuffling they were fighting over a cell phone. However, when viewed as a whole these inconsistencies were relatively minor and inconsequential.
While something was apparently made of these so-called inconsistencies at the time, they do not seem to have mattered much. The prosecutor did not give them particular prominence in his closing address. What was relevant was the jury’s rejection of Ms Bradshaw’s assertions that she did not see her brother scuffling with YZ over the cell phone and later punch YZ in the stomach. Once the jury was satisfied that the complainant was truthful on these facts, Ms Bradshaw’s evidence was likely to have little effect on the result.
Failure to advise about giving evidence
Second, Mr Zindel submits that Mr Daniell-Smith erred in failing to advise Mr Bradshaw to reconsider his original decision not to give evidence after the Crown amended the indictment during the course of trial to add the second count of assault. Mr Bradshaw admits that he accepted Mr Daniell-Smith’s advice not to give evidence in his defence on the original charge of punching YZ in the stomach. As noted, he had the necessary degree of self-awareness to appreciate that he would not have been a good witness.
However, Mr Zindel says, Mr Daniell-Smith should have reconsidered his advice once the police charged Mr Bradshaw with the additional offence of hitting her during the cell phone scuffle. That is because, he says, the facts raise the prospect of a defence of self-defence which almost without exception requires a defendant to give evidence.
We can answer this submission shortly. Advice to Mr Bradshaw to run a defence of self-defence would almost certainly have exposed Mr Daniell-Smith to an arguable allegation of incompetence. Mr Bradshaw signed a ten page affidavit in support of his appeal (much of it containing plainly inadmissible material). However, he did not at any stage admit that he applied physical force to YZ during the cell phone scuffle. Under cross-examination by Mr Simmonds before us, Mr Bradshaw emphatically denied hitting YZ: that was the essence of his defence.
As Mr Simmonds emphasises, the whole legal foundation for a defence of self-defence is that a defendant was justified in physically applying force to another for the purposes of defending himself from harm.[3] Here, a defence of self-defence would have been the antithesis of Mr Bradshaw’s defence based on a denial of hitting YZ at any time during the cell phone struggle. If called to give evidence, Mr Bradshaw would also, of course, have been exposed to cross-examination on the primary charge of punching YZ. This ground of appeal therefore fails.
[3]Crimes Act, s 48.
Trial conduct
Third, Mr Zindel raises a range of miscellaneous criticisms of Mr Daniell‑Smith’s conduct of Mr Bradshaw’s defence at trial, in particular his inadequate cross-examination of YZ and his failure to adequately brief Ms Bradshaw’s evidence.
We can deal with this ground shortly also. Again, with the benefit of hindsight, criticisms can be made about Mr Daniell-Smith’s cross-examination of YZ. For example, he failed to directly challenge her assertion that Mr Bradshaw punched her in the stomach. Fortunately, the Judge rectified this deficiency. But, this omission aside, when the cross-examination is read as a whole we are not satisfied that Mr Daniell-Smith’s performance could possibly give rise to an allegation of trial counsel error. In fact, fairness requires us to point out that he made inroads in cross-examination wherever possible but YZ was plainly a strong and compelling witness. Defence counsel cannot be responsibly criticised for failing to impugn the evidence of a complainant whom a jury is satisfied is both credible and reliable.
There is no substance to Mr Zindel’s submission that Mr Daniell-Smith failed to properly brief Ms Bradshaw’s evidence. He acted entirely appropriately in preparing her brief on the second day of trial before she gave evidence. Earlier, the previous evening, he had spoken with her to ensure that she did not speak with her mother or brother. All this was proper and unimpeachable.
Prosecutorial misconduct
Fourth, Mr Zindel submits that the prosecutor’s cross-examination of Ms Bradshaw was unfair and led to a distortion of the trial. In particular he focuses on the prosecutor’s proposition to Ms Bradshaw at the outset of cross-examination that:
I’m going to be suggesting to you that you are a bare faced liar and you have come here to lie to this jury. What do you say about that?
Mr Zindel refers to the prosecutor’s repeated suggestions to Ms Bradshaw during cross-examination that she was lying and what he says is the prosecutor’s “florid” submission to the jury that Ms Bradshaw’s “evidence was more choreographed than her ballroom dancing [Mr Bradshaw and his sister were ballroom dancers]”, which was repeated by the Judge when directing the jury.
We agree with Mr Zindel that the prosecutor’s accusatory proposition to Ms Bradshaw that she was a “bare faced” liar was inappropriate. Crown counsel’s obligations of fairness, balance and temperance are well settled. Emotive references to a witness being “bare faced” have little place in a prosecutor’s cross-examination. However, Mr Simmonds is correct that it was the prosecutor’s duty at some stage during cross-examination to confront Ms Bradshaw with the Crown’s proposition that she was lying. We would add that repeated assertions to that effect are unnecessary and, if there had been more in this trial, the prosecutor would have run the risk of crossing the line into unfairness.
Prosecutors must be allowed some licence in addressing the jury. In this trial the prosecutor’s closing address when read as a whole was firm but fair, and commendably concise. His reference to choreographed evidence was solitary and not excessive. We do not accept that he was guilty of misconduct.
We do add also, however, that the length of time taken for this trial (two days) seems unnecessary. Much of the evidence-in-chief of YZ was repetitive. The incident occurred within a confined timeframe and was uncomplicated. Evidence from all three witnesses should not have lasted more than half a day. There was a risk of the trial losing its true sense of proportion to the facts but not to the extent of giving rise to a miscarriage of justice.
Result
The appeal against conviction is dismissed.
Solicitors:
Zindels, Nelson for Appellant
Crown Law Office, Wellington for Respondent
1
0
0