Bridgeman v Police

[2018] NZHC 115

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2017-443-32

[2018] NZHC 115

BETWEEN

TRACEY ANNE BRIDGEMAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	5 February 2018
Counsel:	N P Bourke for Appellant G N Milne for Respondent
Judgment:	14 February 2018

JUDGMENT OF THOMAS J

Introduction

[1]                 Tracey Bridgeman was convicted of common assault on 20 October 2017 following a judge-alone trial before Judge Powell in the New Plymouth District Court.1 Ms Bridgeman appeals her conviction on the grounds that errors in the Judge’s analysis has caused a miscarriage of justice.

Factual background

[2]                 Ms Bridgeman and the complainant, Jay Jay Reid, were previously in a relationship and have two daughters together. Mr Reid has been convicted of domestic violence against Ms Bridgeman in the past and is subject to a protection order preventing contact with her.  At  some  point,  Ms  Bridgeman  became  convinced Mr Reid was in another relationship. On 13 February 2017, she went to his house to

1      Police v Bridgeman [2017] NZDC23538.

BRIDGEMAN v NEW ZEALAND POLICE [2018] NZHC 115 [14 February 2018]

seek him out. There she encountered Rachael Castle and she asked her if she was  Mr Reid’s partner. Rachael said she was not. Mr Reid came to the door. Angela Castle, Rachael’s sister, was inside the house.

[3]                 The prosecution alleged Ms Bridgeman began yelling at Mr Reid, pulled him outside, and assaulted him by punching him repeatedly in the head. She then lost her footing 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 instigated the violence. He grabbed her by the scruff of the neck, threw her over the rail of the ramp, kicking her and stomping on her head and body. He invited Rachael and Angela to kick her as well. Ms Bridgeman described managing to stop the assault only by grabbing Mr Reid’s penis.

[5]                 The police took photographs of Ms Bridgeman which showed red marks on her 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 defence evidence before embarking on a discussion of the evidence. He acknowledged there were differences between the accounts of prosecution and defence witnesses, including as between prosecution witnesses. Despite this, and despite Mr Reid’s previous convictions, the Judge found he was able to find a credible narrative of events in the evidence of Angela and Rachael Castle, whom he treated as being essentially independent witnesses.

[7]                 The Judge was concerned that Ms Bridgeman’s account was at odds with prosecution witnesses on major points, as well as being inconsistent with her initial statement to police. He considered her evidence “incoherent”, “literally incredible” and “entirely implausible”. He considered the marks on Ms Bridgeman’s neck to be more akin to scratches than to signs of strangulation.

[8]                 In concluding, the Judge stated he did not find Ms Bridgeman’s account remotely credible and rejected her version of events “in its entirety”. He was satisfied Ms Bridgeman was the aggressor and assaulted Mr Reid.

The evidence

Jay Jay Reid

[9]                 Mr Reid said he had been in bed and heard raised voices outside. He described Ms Bridgeman trying to push him out of the way to get inside to Angela but he stood in the doorway and stopped her getting through, telling her to leave. He described her yelling and screaming at him and swinging at him, punching him in the head with anywhere between 10 and 20 blows. As a result, Mr Reid sustained a black eye and split lip. He responded by putting his arms up and shoving her. He then walked her down 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 Rachael were 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 left the property. He said he left because he was aware of the protection order and believed he would be the one to get into trouble. He said that had happened in the past when Ms Bridgeman had turned up at his house and yelled abuse at him.  It  was put to   Mr Reid that if he had sustained a black eye, he would have wanted to show the police those injuries or taken photographs of them. Mr Reid said he had not wanted to be involved in the case. Ms Bridgeman was the mother of his children and he did not want anything to happen to them.

[12]              Mr Reid denied grabbing Ms Bridgeman by the throat and throwing her off the porch, 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 when Mr Reid came out and told her to leave. They were standing just in the doorway and

Ms 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 and    Ms Bridgeman were about half way down the ramp.

[14]              Rachael saw Ms Bridgeman punching Mr Reid in the head. She told her to stop it because there were children in the car screaming. She saw between three and five quick punches to the head. They were reasonably strong and Mr Reid was trying to push her off. She described Ms Bridgeman falling over, getting back up and approaching Mr Reid again.

Angela Castle

[15]              Angela Castle said she heard screaming and a commotion almost as soon as Rachael and Ms Bridgeman arrived at the address. Mr Reid went outside and then Rachael  came  in.   There  was  still  some  commotion  between  Mr  Reid  and    Ms Bridgeman so Angela went outside and saw Ms Bridgeman punching Mr Reid about three or four times forcefully to the face when they were half way down the ramp.

[16]              She described Ms Bridgeman having an arm around one side of Mr Reid and punching into his face. She saw Mr Reid push Ms Bridgeman away from him and trying to defend himself from the punches. Angela went inside and her son called the police.

[17]              Angela said Mr Reid sustained a swollen cheek bone and bruising to his eye as a result.

Constable O’Byrne

[18]              Constable O’Byrne described Ms Bridgeman as visibly upset on his arrival at the address, with red marks on her throat which appeared to him to be scratch marks and a red mark on her arm.

Ms Bridgeman

[19]              Ms Bridgeman said she had become frustrated because Mr Reid was not responding to her messages. She was messaging him on the night in question and decided to go to his address to clarify everything. Ms Bridgeman described herself as more upset than angry. Ms Bridgeman accepted that she had followed Rachael’s vehicle 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 she replied to the effect she was not but her sister was. She described Mr Reid coming to the door with Angela standing behind him.

[20]              Ms Bridgeman said Mr Reid instantly picked her up by the scruff of her neck right under her chin and threw her over the railing while telling her in no uncertain terms to leave. When she stood up, Mr Reid came towards her and kept pushing her and she had to keep picking herself back up. She said she was knocked off her feet every single time and she got up about three times. Then she said the pushing turned into “another strangle”. At some stage, she had curled herself up on the ground and he started “booting the shit out of me all down my body, all down my arm, all down this side”. She later said she “sprung up heaps” after she was knocked down and then she pulled his penis when she was on her knees and could not get back up again. She described 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 justice on the grounds the Judge:

(a)erred in stating the evidence did not support that Mr Reid and Angela were in a relationship and therefore was not appropriately circumspect regarding Angela’s and Rachael’s evidence;

(b)failed to give adequate weight to Mr Reid’s propensity for domestic violence against Ms Bridgeman;

(c)misinterpreted and neglected medical evidence of Ms Bridgeman’s injuries;

(d)failed to consider self-defence;

(e)erred in stating Ms Bridgeman’s evidence was inconsistent with what she initially said to the police; and

(f)leapt from a rejection of Ms Bridgeman’s evidence to a conclusion of her guilt.

[22]              He also submits the two months between the hearing and delivery of the verdict limits 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 and inconsistent and was satisfied Ms Bridgeman was guilty of assault.

Law

[24]              The Criminal Procedure Act 2011 requires an appellate court to allow an appeal where the trial judge erred in assessing the evidence such that a miscarriage of justice has occurred or where a miscarriage of justice has occurred for any reason.2 A miscarriage of justice is an error, irregularity or occurrence that has either created a real risk that the outcome of the trial was affected or has resulted in a trial that was

2      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 of justice.4 A real risk the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.5

Analysis

Delay in judgment

[25]              This ground can be rejected entirely. The date of a judgment is when it is released, not necessarily when it was written and, in any event, two months is an entirely acceptable period for the time from hearing evidence to delivery of the judgment. There are no other indicators which could support questioning the Judge’s recall.

Independent witnesses

[26]              The Judge heard evidence from the witnesses in person and had available to him the notes of evidence. In making veracity and reliability assessments, he canvassed the extent of relationships between Angela and Mr Reid and between Rachael and Mr Reid. The Judge made particular note of the fact Rachael had not met Mr Reid until the day of the incident and had no reason to cover up for him. He made no finding on whether Angela and Mr Reid were in a relationship, merely pointing out there was conflicting evidence on which witnesses had not been challenged and concluding both Angela and Rachael were “essentially independent” witnesses.

[27]              The Judge was wrong when he said the witnesses were not challenged as to whether Mr Reid and Angela were in a relationship or not. There was indeed some difference between the witnesses in this regard. The Judge was therefore not entirely correct when he described both Angela and Rachael as independent witnesses. Whatever the status of the relationship between Angela and Mr Reid, they were at the very 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 not necessarily undermine a witness’ independence. The Judge acknowledged there were differences between the prosecution witnesses’ accounts (something which is by no means unusual) but considered they broadly corroborated each other to “paint a credible picture” of the incident. In that context, and in the context of other evidence at 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 female associate and his son. Ms Bridgeman saw them and began abusing Mr Reid and the female. Mr Reid got out of the car, took Ms Bridgeman by the hair and there was a physical struggle which resulted in several small clumps and strands of her hair being freed from her scalp. Mr Reid pleaded guilty to criminal charges following the incident.

[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. It was fully canvassed at the trial during cross-examination by defence counsel. The Judge specifically referenced this evidence in his decision, noting Mr Reid had previously grabbed Ms Bridgeman by the neck when she confronted him on an earlier occasion 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 for the Judge to determine the weight to be attached to it. There is no problem with the way in which the Judge dealt with this evidence.

Injury evidence

[33]              The Judge acknowledged the injuries to Ms Bridgeman’s neck and arm but found that the evidence did not support Ms Bridgeman’s account of a severe assault by Mr Reid. He considered her injuries would have been more significant than those recorded 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 with thumb  prints  and,  secondly,  that  there  was  no  medical  evidence  suggesting   Ms Bridgeman had any injuries to her hands as would be expected if she had indeed assaulted Mr Reid in the terms the prosecution witnesses describe.

[34]The doctor’s notes recorded as follows:

14 Feb 2017 Hardus Swartz Attacked last night by ex partner Bruising Lt upper arm

Red marks ant neck-thumb marks

stomped at on left side neck, head and chest Resp clear. No signs rib # or bruising

[35]              Given this evidence supported Ms Bridgeman’s version of events, I accept it should have been referred to. However, it is not as unequivocal as the defence contends. The doctor’s notes are clearly a record of what Ms Bridgeman told the doctor – that is, she reported she had been attacked by her former partner and she had been stomped on. The report noted there were red marks on Ms Bridgeman’s neck and 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 by that 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 were thumb marks on Ms Bridgeman’s neck. However, it is always open to a fact-finder to accept or reject the evidence of an expert. In this case, the Judge did refer to the marks on Ms Bridgeman’s neck but concluded they were not obviously the result of having been grabbed by the neck. He considered, as Mr Reid suggested, they appeared more akin to scratch marks. In this regard, there was the evidence of Constable O’Byrne who attended that night and took the photographs. It was his opinion they appeared to be scratch marks.

[37]              The doctor’s notes do not support Ms Bridgeman’s version of events in respect of 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 into account by the Judge when assessing her evidence. Descriptions of multiple stomps and/or kicks to the head, arm and torso would reasonably be expected to produce considerable redness or bruising. No such marks were apparent to the police on the day 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 marks on Ms Bridgeman’s hand that day, noting she was seen by her doctor. Punching does not invariably cause marks on the hands of the person administering the punch and the lack of evidence of injury to Ms Bridgeman’s hands does not mean she did not assault Mr Reid by punching him. That there should have been such marks is speculation on the part of the defence. The fact the Judge did not refer to any marks or make any observation about the lack thereof is not in error.

Self defence

[40]              Mr Bourke contended there was no dispute the scratch marks were not present when Ms Bridgeman had arrived at the address that night. Ms Bridgeman had been consistent from what she told the police that night to her evidence at the trial that   Mr Reid had grabbed her by the throat. In Mr Bourke’s submission, given the marks on Ms Bridgeman’s neck, the Judge could not be satisfied that the Crown had proved beyond reasonable doubt that Ms Bridgeman was not acting in self-defence. He submitted there was a period when Ms Bridgeman had first approached Mr Reid when neither Rachael nor Angela were present. It could be inferred, in his submission, that Mr Reid had grabbed Ms Bridgeman around the throat at that point and, if she had punched 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 down the ramp as she walked into the house. She says she was in the lounge with Angela for 30 to 40 seconds before they both went out again. Angela confirmed she and Rachael were together inside for a period although she was not asked how long that was. Ms Bridgeman’s evidence was that when Mr Reid was at the door, Angela was behind him.

[42]              Ms Bridgeman’s case was not that she punched Mr Reid acting in self-defence after he had strangled her at the beginning of the altercation. She, on a number of occasions, gave evidence of a very nasty assault by Mr Reid on her before she retaliated (or acted in self-defence) by grabbing his penis. Mr Bourke’s submission would mean the Judge would have to consider there was at least reasonable doubt as to whether Mr Reid had put his hands around Ms Bridgeman’s throat before she punched him and that she did so in self-defence. Ms Bridgeman’s evidence was that Mr Reid “instantly picked her up and threw her over the railing”. None of the prosecution 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 extent of pushing her down the ramp. Ms Bridgeman then said that after Mr Reid had kept pushing her and she kept falling over, he then strangled her.

[43]              In the circumstances, the Judge was not faced with a narrative which would support the proposition that when Ms Bridgeman punched Mr Reid she was doing so in self-defence. Punching Mr Reid in the face is not a proportionate response to being pushed down a ramp and told to leave.

Inconsistent evidence

[44]              Ms Bridgeman gave different accounts of the incident to police, to the examining doctor and at trial. The inconsistencies are as follows:

(a)her initial statement to police said Mr Reid had thrown her over the ramp railing, grabbed her throat and, when she collapsed, he stomped on her head;

(b)to the examining doctor she said Mr Reid had stomped on the left side of her neck, head and chest; and

(c)at trial she said Mr Reid picked her up by the scruff of the neck, threw her over the railing, continued to aggressively push her when she got up, 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. The various accounts Ms Bridgeman has given are not entirely inconsistent with each other. To the extent there are inconsistencies in descriptive detail, such inconsistencies could be explained by the context in which they were given. A more detailed description of events is more likely at trial than either the immediate aftermath of a violent incident or the context of a doctor’s visit. Seen in that light, the Judge’s comments regarding Ms Bridgeman’s credibility and his rejection of her evidence in its entirety were perhaps stated in overly vigorous terms.

[46]              The Judge was, however, entitled to disbelieve Ms Bridgeman’s version of events in its entirety and in my assessment had reasonable grounds to do so. While his description of her evidence could be considered harsh, it is certainly true that her version of events, alleging an extreme assault, including being kicked and stomped on, was not supported by any other evidence.

[47]              Mr Bourke raises concerns that the evidence of prosecution witnesses was also inconsistent and says, in combination with the injury and propensity evidence, this ought to have raised doubt in the Judge’s mind. Mr Bourke points out the following inconsistencies:

(a)Mr Reid and Angela claiming to hear raised voices and shouting, where Rachael gave evidence of a conversation in quiet, civil tones;

(b)Mr Reid claimed Ms Bridgeman entered into the house trying to get past him but Rachael said she grabbed Mr Reid and dragged him outside and denied she was trying to forcefully enter the house;

(c)Angela claimed to see Mr Reid in a headlock but Mr Reid did not describe this; and

(d)Mr Reid denied touching Ms Bridgeman but Angela and Rachael gave evidence he at least pushed her and there was the incontrovertible evidence of the scratches on her neck. Furthermore, Mr Reid avoided talking 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 Bridgeman grabbed him and tried to pull him outside. Mr Reid acknowledged Ms Bridgeman could quite possibly have grabbed him and pulled him out of the way. Mr Reid clearly acknowledged pushing Ms Bridgeman down the ramp in his evidence but denied he was 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 for three months, the inference being he accepted Mr Reid’s explanation for that. A judge does not have to refer to each and every piece of evidence in outlining his or her reasons.

[50]              It would indeed be surprising if the prosecution witnesses had all given entirely consistent accounts of the events that day. The Judge acknowledged there were clear differences 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  fact  Ms Bridgeman gave evidence. In his submission, having rejected Ms Bridgeman’s version of events, the Judge then leapt to a conclusion of guilt rather than assessing whether the respondent had proved its case beyond reasonable doubt.

[52]              A defendant giving evidence does not change the burden of proof, which remains 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’s evidence, then he or she must assess all the evidence which is accepted as reliable in order to decide whether the prosecution has proved the defendant’s guilt beyond reasonable doubt.

[53]              In this case, the Judge rejected Ms Bridgeman’s account in its entirety. I do not accept that  he  leapt  from  that  to  a  conclusion  of  guilt.  Indeed,  he  found Ms Bridgeman had made a deliberate choice to drive to Mr Reid’s home for the express purpose of seeking a confrontation that night. He concluded she was the aggressor and was satisfied beyond reasonable doubt that upon arrival at the house she

commenced a physical assault almost as soon as Mr Reid came to his front door and that the assault continued until Ms Bridgeman fell over.

Stepping back

[54]              I have taken into account the alleged errors but, standing back and considering the evidence as a whole, I am satisfied there was no miscarriage of justice. The Judge could properly have been satisfied beyond reasonable doubt that Ms Bridgeman assaulted Mr Reid by punching him on 13 February 2017.

Result

[55]For the reasons given, the appeal is dismissed.

Thomas J

Solicitors:
Crown Solicitor’s Office, New Plymouth