R v Bridgeman CA87/04

[2005] NZCA 388

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA87/04

THE QUEEN

v

PAUL JOHN BRIDGEMAN

Court:  Hammond, Chambers and Robertson JJ Counsel:       R A B Barnsdale for Applicant

A M Powell for Crown

Judgment (On the papers):     10 November 2005

JUDGMENT OF THE COURT

The appeal is reinstated.  Fresh grounds of appeal are to be filed and served

within 21 days of this judgment.

REASONS

(Given by Hammond J)

Introduction

[1]       This an application for reinstatement of this appeal, which arises in somewhat unusual circumstances.

R V BRIDGEMAN CA CA87/04 10 November 2005

[2]      Following a trial by jury in the District Court at Hamilton, on 10 February

2004 Mr Bridgeman was convicted of two  counts  of  sexual  violation.    He  was subsequently sentenced to four and a half years imprisonment.

[3]      Following that trial, a different counsel became involved in the proceeding, on behalf of Mr Bridgeman.  A Notice of Appeal was filed timeously on his behalf.

[4]      That appeal was subsequently abandoned.   A Notice of Abandonment in proper form was filed on 4 May 2004.  In accordance with the usual practice in this Court, the appeal was marked up as having been “abandoned”.

[5]      After the appeal was abandoned, Mr Barnsdale (the third counsel to have been involved for the appellant) was approached by one of Mr Bridgeman’s friends, to apply, on his behalf, to have this appeal reinstated.

[6]      An application for reinstatement was lodged with this Court on 22 February

2005.  For reasons which will become apparent later in this judgment, this Court is only now in a position to make a determination on the application.

The law relating to reinstatement of appeals

[7]      The principles relating to reinstatement of criminal appeals were recently addressed by this Court in R v Curtis CA288/04 17 February 2005.  This Court there noted that the Court of Appeal (Criminal) Rules 2001 provide for the abandonment of appeals, but those rules do not prescribe the consequences of an abandonment; in particular they do not provide that  a  Notice  of  Abandonment  effects  a  deemed dismissal of the appeal (Curtis, [23], [24] and [25]). This contrasts with r 4 of the Criminal Appeal Rules 1946, which provided that a Notice of Abandonment was deemed to be a dismissal of the appeal.

[8]      In Curtis this Court rejected an argument that a Notice of Abandonment could only be set aside if that Notice amounted to a nullity.  The Court determined that,  in  exceptional  circumstances,  it  has  an  inherent  power  to  reconsider  its decisions (see also R v Smith [2003] 3 NZLR 617).

[9]      In considering whether such exceptional circumstances exist, the Court will have regard to the importance of finality in criminal cases, the circumstances in which the Notice of Abandonment was given, and the necessity for an applicant for such an order to satisfy the Court that the reasons for the application are of an exceptional nature.

[10]     We have approached this application on the basis of those principles.

This case

[11]     The case against the applicant raised two allegations of sexual violation by digital penetration by Mr Bridgeman of a complainant, X.  The first was alleged to have been committed in Hamilton in the mid 1990s; the second in Napier at the end of 2000 or early in 2001.

[12]     The concern which has now been raised in the  case on Mr Bridgeman’s behalf is that the real perpetrator of the first offence may have been another man, whom we shall call Y; and that Mr Bridgeman was not in Napier at the time of the alleged second incident.

[13]     The  case  is  complicated  by  the  fact  that  it  is  common  ground  that  the applicant suffers from a mental disability, and cannot read or write.  His caregiver is Joelene Marie Duncan of Hamilton.  She has sworn an affidavit which, apart from attesting to Mr Bridgeman’s disabilities, asserts that the applicant was not in Napier at the time of the alleged second offence; and she suggests that the offences were committed by Y.   She also suggested that “a video which is being held by the Department of Children and Young Persons is some evidence of this”.

[14]     In essence, what is suggested now on Mr Bridgeman’s behalf is that he is distinctly under a disability, and the wrong man has been convicted.

The course of events in this Court

[15]     The application was first called before this panel in a Miscellaneous Motions list in June of 2005.   The circumstances which we have outlined concerned the Court,  and  it  appeared  that  the  video  seemingly  held  by  CYPS  might  be  of significant moment for the appeal.   Mr Barnsdale contemplated making a formal application for the production of that video.

[16]     In  the  result,  rather  than  the  parties  having  to  resort  to  such  a  formal application for the production of the video (which would raise other difficulties), with the agreement of counsel the reinstatement application was adjourned to see what could be achieved, informally.

[17]     Because this panel was familiar with the history of the application we agreed to keep the matter under review, and subsequent conferences have been held with counsel.   In particular, we record our appreciation to Mr Powell, who has acted entirely responsibly and carefully.

[18]     Mr Powell endeavoured to arrange for informal discovery from CYPS in Hamilton.   The concern was to ascertain whether there is any merit at all in the proposed appeal, for the purpose of a wider inquiry of the character suggested in R v Smith (above).

[19]     It suffices to say at this stage - because it is undesirable that we should now go into the merits in any great detail - that certain material disclosed by CYPS, in the Crown’s view, “identifies a possible basis for a substantive appeal”.   There is however room for argument as to whether the basis of that appeal should be on the grounds  of  trial  counsel  incompetence,  or  whether  what  is  involved  is  a  fresh evidence issue.

[20]     To have explored the possibility at trial of there having been another offender would have involved cross-examining X, or possibly leading other evidence.  Either course would have required the leave of the trial Judge under s 23A of the Evidence Act 1908.   But the very fact that there  apparently exists an interview with the

complainant regarding Y may well have been sufficient to prise open that particular line of inquiry.

[21]     We are not to be taken as suggesting that there was a real possibility of a defence, let alone that such unmistakably existed.  The difficulty is that the appeal was apparently abandoned on the basis that it had absolutely no prospect of success, without any consideration of the concerns about this video; and it was abandoned by a person with border-line intellectual ability at that.   We think (and the Crown responsibility accepted this viewpoint) that, cumulatively, there are exceptional circumstances here.  The appeal should be, and is, reinstated.

Consequential directions

[22]     Mr Barnsdale will have to reconsider the basis of the appeal.  Fresh grounds of appeal are to be filed and served within 21 days from the date of this judgment. Thereafter, the appeal is to proceed in accordance with the current rules, with submissions being filed in accordance with those rules.  Of course, if trial counsel competence is an issue, the usual steps will have to be taken in that regard.

Solicitors:

Crown Law Office, Wellington