R v Bridgeman CA87/04

[2006] NZCA 417

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA87/04

THE QUEEN

v

PAUL JOHN BRIDGEMAN

Hearing:         24 May and 2 June 2006

Court:            Chambers, Rodney Hansen and Priestley JJ Counsel:  R A B Barnsdale for Appellant

J M Jelas (on 24 May 2006) and P K Hamlin (on 2 June 2006) for

Crown

Judgment:      16 June 2006

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by Rodney Hansen J)

Introduction

[1]      On 10 February 2004, following trial by jury in the Hamilton District Court, the appellant was convicted of two counts of sexual violation.  He was sentenced to

R V BRIDGEMAN CA CA87/04 16 June 2006

four and a half years imprisonment.  He appeals against his conviction on the basis of trial counsel incompetence and fresh evidence.

[2]      This is his second appeal.   An appeal was filed soon after trial and then abandoned.    An application  for  reinstatement  was  filed after  Mr  Barnsdale was instructed as counsel.  It was granted and the appeal reinstated for reasons given in this Court’s judgment of 10 November 2005.

Further background

[3]      In February 2001, the complainant, L, then aged 10, told her mother that the previous day the appellant, who had been staying with them, came into the bedroom where she and her sister were sleeping.   She said he had put his hand down her pyjama pants and underpants and penetrated her vagina with his finger.

[4]      Subsequently, L disclosed that about five years before this incident, when the family were living in Hamilton, the appellant took her into the bathroom and locked the door.  He sat her on the bath, pulled down her underpants and put his finger in her “front bum” as she called it.   L said they were disturbed by the appellant’s partner knocking on the door.  The appellant unlocked the door.  On L’s account, his partner was angry with him and dragged him out of the bathroom by the hair.

[5]      The appeal is founded on evidence that has recently come to light which may support an argument that the earlier assault was committed by a person we shall call X.  The Department of Child, Youth and Family Services (CYFS) has advised that on 15 February 1995 L was interviewed by a psychologist in relation to allegations of sexual assaults by X.  The allegation was made by a young relative of L’s who lived in the same house.  L was interviewed to check whether she had experienced similar problems with X.  The report of the interview of L records the following:

[L] said that [X] was a person she did not like because he hits Janet with a stick.  She said that Janet does not like [X].

The only touching L would talk about was [X] touching her on the “tummy”. She had very few names for body parts and would not indicate on a doll where “tummy” was.

She also said that [X] touched [her brother’s] tummy and he did not like it.

The report concluded:

[L] also talked about touching but because of her young age and lack of understanding about body parts, it is not clear what kind of touching she is meaning.

[6]      The report of the interview with L is seen by the appellant  as providing potential support for a defence that the Hamilton offence was committed by X and that L confused X and him when recollecting the incident some five years later.  The appellant’s trial counsel, Mr Gordon Matenga, was made aware of the allegation against X but the report of the interview with L never came to his notice.   He has sworn two affidavits.  The first was sworn without his having access to his files and in reliance on his unaided memory.   Because of the potential importance of the evidence and the extent of counsel’s knowledge of it at the time of trial, we gave the Crown an opportunity to obtain a further affidavit from Mr Matenga after he had had access to  the files.    We also  invited the Crown to  consider  whether  it  may  be appropriate to file evidence from the complainant or other family members.   We wanted to ensure that the cogency of the new evidence was fairly tested.

[7]      At  the  resumed  hearing  the  Crown  tendered  a  further  affidavit  from Mr Matenga and an affidavit by the officer in charge of the investigation, Detective Helen Dowling.  Mr Matenga had been able to access most documents from his file, although it seems that some papers may have been mislaid while the file passed through the hands of Mr Barnsdale and another lawyer who initially pursued the appeal on behalf of the appellant.

[8]      Mr Matenga deposed that before trial he was told by the appellant’s former partner of allegations against X.  She and the appellant were living together at L’s family home when the bathroom incident  allegedly occurred.   Their relationship came to  an end  before the trial but  he remained  boarding  with  her.    She gave evidence  for  the  defence  at  trial  and  has  actively  pursued  the  appeal  on  the appellant’s behalf.

[9]      The appellant’s  former  partner told  Mr Matenga that  X  had  been  caught interfering  with L when  he was aged  about  12  and  she  was 3  or 4.   She told Mr Matenga that “Social Welfare” (by which he understood her to refer to CYFS) had records of his behaviour.  Mr Matenga said he made enquiries of the officer in charge of the investigation seeking further disclosure and also sent a letter to the Crown Solicitor asking him to make enquiries.   He said that no further disclosure was forthcoming from either the police or the Crown and he decided to run the trial on the basis of what he knew and could substantiate through the evidence.

[10]     Mr Matenga deposed that it was also reported to him that the mother of L’s stepfather had heard L say to her mother that if she did not want her stepfather to stay, “I will say that he touched me too”.  Mr Matenga was told that the stepfather’s mother  was  unwilling  to  give  evidence.     He  nevertheless  prepared  a  witness summons.   However, before the trial he was instructed not to call her.   He did, however, explore the issue with L’s mother in cross-examination at the trial.   She denied that L had ever offered to make allegations about her stepfather in order to make him leave.

Appellant’s case

[11]     Mr Barnsdale accepted that he could not rely on the evidence which might have been given by the mother of L’s stepfather.  He acknowledged that Mr Matenga had taken all reasonable steps to introduce the evidence at trial and, in the face of an instruction not to call the witness, could do no more than put the allegations to L’s mother.  In any event, the appellant did not file sworn evidence for us to consider.

[12]     The appeal therefore stands or falls on the failure to call the evidence relating to X.  For this purpose, the ultimate issue is the same whether the evidence was not called because it could not, with reasonable diligence, have been found or because of counsel error.  In both cases the Court must determine whether there is a real risk that a miscarriage of justice has occurred as a result of the evidence not being called at trial: R v Bain [2004] 1 NZLR 638, R v Sungsuwan [2006] 1 NZLR 730 (SCNZ) where Elias CJ said at [7]:

Where,  as  here,  the basis  of  the  ground  of  appeal  is  that  relevant  and admissible evidence was not called (whether because it was not reasonably available at trial or because counsel did not choose to call it), the effect of its absence will have to be assessed.  The context may include the cogency of the evidence not called, the other evidence at trial, any additional evidence likely to have been elicited in response had the evidence been called, and any risk to the defence in calling the evidence.

[13]     Mr Barnsdale argued that if the evidence had been available at trial, it would have supported a defence of transference in relation to the first incident.  He said the defence could have used the so-called Dobson procedure set out in R v Dobson CA25/95 8 June 1995 to require CYFS to produce the records of interview.  It could have then sought leave to cross-examine L and to suggest that she had confused the appellant and X when recollecting the earlier incident some six years later.   That would have provided the foundation for an attack on the jury’s verdict in relation to the  2001  incident.   It  would  be argued  that  doubts raised  as  to  the  appellant’s credibility in relation to the first incident rendered the verdict against the weight of evidence.

Discussion

[14]     The information provided to the Crown Law Office by CYFS makes it clear that  apart  from the  reported  comments  of L  quoted  in  [5]  above,  nothing  else emerged from her interview which could have assisted the defence.  It is clear that the complaint which initiated the enquiry was not made by L but by another family member.    L  was  interviewed  as  a  consequence.    X  was  interviewed  and  an assessment prepared; there is no transcript of his interview.  There is no reference in the assessment to L or the appellant.   Accordingly, the evidence provides only the most slender foundation on which to build a case that L wrongly attributed the acts of X to the appellant.

[15]     The officer in charge of the investigation interviewed L in response to the Court’s indication that it would be assisted by evidence that would help to assess the cogency of the new evidence.   Detective Dowling swore an affidavit to which she exhibited a statement taken from L.   She is now aged 15.   In the statement she confirms that as a child she stayed at the house where the incidents involving X are

alleged to have happened.  She denies that she was ever inappropriately touched by him and is adamant that there is no possibility she confused the appellant and X.  She had no recollection of being interviewed in relation to allegations against X.

[16]     In  light  of  L’s  response,  it  is  hard  to  see  how  the  defence  could  have advanced the case for transference had it had the opportunity to cross-examine L. She would simply have denied that X was the culprit.  As she had no recollection of the CYFS interview, it would have been futile to ask her about it, not that it  is inconsistent with a denial that X was involved.  Furthermore, her evidence that it was the appellant who touched her had powerful corroboration from other witnesses.

[17]     L’s brother, two years older than her, gave evidence that on one occasion when the appellant was looking after L and him, he tried to get into the bathroom and found it locked.  When he asked what was happening, the appellant told him he was washing L’s hands or face.   He said he waited until they were finished.   He could not remember the appellant’s partner intervening and dragging him out of the bathroom by the hair as L had said in her evidence.

[18]     L’s mother gave evidence that the appellant and her partner stayed for three or four months at the house she shared with her husband and the two children.  She thought it was about 1995.  Sometimes the appellant and his partner looked after the children when she and her husband went out.   After one such outing she said the appellant’s partner told her that she had gone into the bathroom to find L with the appellant.   L was sitting with her underpants around her ankles.   The appellant’s partner went on to say that she had pulled him out of the bathroom by the hair and told him what he was doing was “sick and disgusting”.   L’s mother said that as a result of that disclosure she asked the appellant and his partner to leave the house.

[19]     The appellant’s partner was the only witness for the defence.  She confirmed that she and the appellant lived at L’s family home in, she thought, 1996.  She denied that any incident occurred as described by prosecution witnesses.   She denied that she and the appellant ever babysat the children.  She said the discussion spoken of by L’s mother never took place; she claimed she and the appellant left the house for reasons of their own.

[20]     There was therefore a stark and irreconcilable conflict at trial between the evidence of the complainant, supported by her mother and brother, and the assertions of the appellant’s partner that  nothing had  happened.   Their differences did  not concern the identity of the perpetrator but whether the incident had happened at all.

[21]     It is hard to see how the evidence relating to allegations against X could have assisted the defence to implicate him in the offending.   As we have said, L would have denied that she identified the wrong person.  Having regard to the corroborating evidence, that surely would have been conclusive.  Other circumstances also militate against any defence of transference being accepted.  At the time the appellant would have been in his early twenties; X would have been aged 14.   The appellant was acknowledged to have been living in the house.  There is no evidence that X even visited during the relevant period.

[22]     The prosecution case was that the incident occurred when the appellant and his partner were both present in the house.   If it happened at all, the appellant’s partner knew and was involved in the aftermath.   The evidence simply could not accommodate a suggestion that the incident occurred but someone other than the appellant was the perpetrator.

[23]     The evidence could assist the appellant in relation to the later incident only if it dented L’s credibility by casting doubt on her account of the Hamilton incident. As it does not, it is clear that, even if the evidence had come to light before the trial, it could have made no difference to the outcome.  There is no risk that a miscarriage of justice occurred.

Result

[24]     The appeal is dismissed.

Solicitors: