The Queen v Bradbury

[2006] NZCA 130

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA342/04

THE QUEEN

v

BENJAMIN BARRIE BRADBURY

Hearing:19 June 2006

Court:Hammond, Chisholm and Cooper JJ

Counsel:Appellant in person

A R Burns for Crown

Judgment:19 June 2006 

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

REASONS

(Given by Hammond J)

Introduction

[1]       Mr Bradbury stood his trial before Judge Thorburn and a jury in the District Court at Auckland for a series of sexual offences against young women, including a rape.

[2]       He was ultimately sentenced to a term of 13 years imprisonment, with a minimum period of imprisonment of seven years.

[3]       The case has a convoluted procedural history. 

[4]       Mr Bradbury originally appealed both his sentence and his conviction.  The sentence appeal was heard on 7 March 2005.  It was dismissed (R v Bradbury CA342/04 16 March 2005).  At that hearing, Mr Kaye (who was at that point in time acting for Mr Bradbury) informed the Court that he did not feel able to advance the appeal against conviction.  That panel decided to grant Mr Bradbury the “indulgence of an adjournment” for the purposes of obtaining a second opinion. 

[5]       This second opinion was not forthcoming.  In a minute dated 23 September 2005, this Court postponed a hearing to sometime early this year, on the grounds that Mr Kaye had stood down, and no other lawyer was taking up the case. 

[6]       The case was again adjourned on 1 February 2006.  In a minute of that date, the now President reluctantly granted the adjournment.  He noted it was likely to be the last, and said that if Mr Bradbury had still not found counsel then he could expect the Court to require him to present his case in person. 

[7]       To date, Mr Bradbury has not filed any written submissions, either in person or by counsel.  Apparently, he filed a notice of abandonment, but qualified it by saying he intended to appeal “later”.  The registry returned the notice with advice that the appeal would proceed today because it was not a proper abandonment.

[8]       As a matter of caution this panel issued an OTP for Mr Bradbury to be present today, in case there should be anything he wished to say.  He was before us today.

Facts

[9]       Mr Bradbury’s convictions relate to two episodes of sexual assault and violence.  The facts are conveniently set out in the judgment of this Court dismissing Mr Bradbury’s sentence appeal.  At [1], [2] and [3] this Court noted:

… On 30 March 2003 [Mr Bradbury] went to a North Shore beach where teenagers had gathered for their own amusement.  [Mr Bradbury], at 27 years of age, was some 10 years or more older than the young people.  He made lewd comments to young females, and in respect of the first complainant he indecently assaulted her by grabbing her breasts.  He later repeatedly touched the girl’s bottom.  At one stage he approached a 17 year old girl who was sitting on a swing.  He asked her for a hug, and when she tried to evade his advance he reached out and touched her breasts, making an obscene comment as he did so.  Another complainant, aged 15, was approached by [Mr Bradbury], who said that he liked her skirt.  He put his hand up her skirt, into her underwear and attempted to digitally penetrate her.  Later in the evening he touched her bottom also.  When another member of the young person’s group remonstrated with him [Mr Bradbury] threatened that person with a knife [also stating, “I might have to use this to get some pussy tonight”].

[2]       [Mr Bradbury’s] conduct on 30 March 2003 resulted in three convictions for indecently assaulting a female over the age of 16 years, two convictions for assaulting a female between the ages of 12 and 16 and one count of carrying an offensive weapon.

[3]      A week later, on 6 April 2003, [Mr Bradbury] abducted a 15 year old girl from a public street, at knife point.  He took her to his residence where he threatened her, stripped her and raped her.

[10]     Mr Bradbury denied all the allegations in relation to the first incident.  In relation to the second incident, it was common ground that sexual intercourse had taken place.  The only issue was whether there was consent or reasonable belief in consent.  Mr Bradbury accepted that he had crassly hollered to the complainant “want a root?”  It was his contention that she then acquiesced.

The Parties’ Submissions

[11]     As we have noted, Mr Bradbury has not made any written submissions.  His notice of appeal asserts that there a number of significant errors in the summing-up of the trial Judge.  For completeness, we also note that on 23 September 2005 a fax was received from Mr Bradbury where he also alludes to several other grounds warranting a review of his conviction.  They are:

1.   The Judge allowed someone who knew the mother of one of the complainant’s to sit on the jury;

2.   The Police planted evidence at Mr Bradbury’s house (namely a knife);

3.   The officer in charge was caught changing a statement at trial;

4.   The officer in charge admitted to disallowing Mr Bradbury access to a lawyer when a statement was taken from him.  It is claimed that the Judge did nothing about the breach of Mr Bradbury’s rights;

5.   During the Judge’s summing-up, Mr Bradbury observed him laughing at a statement made by Mr Bradbury.

[12]     Before us today, Mr Bradbury has enlarged upon those matters in what he has said to us.

[13]     The Crown’s response was necessarily brief, because it had nothing to respond to in writing.  After noting that Mr Bradbury identifies no specific errors in the Judge’s summing-up, the Crown, in its written submissions argued that the Judge properly addressed all relevant matters.

[14]     As to the other matters (apart from point 5) raised before us today, Mr Burns noted that each matter had been raised during the course of the trial, and he said dealt with adequately by the trial Judge.  Mr Burns therefore said it was not now possible or appropriate for Mr Bradbury to endeavour to go behind those matters.

Discussion

The Summing-Up

[15]     Reading the summing-up as a whole, we can find no fault with the trial Judge’s summing-up.  It progressed through the elements of the offence, and the respective submissions of the parties in detail. 

[16]     It is difficult to see how the Judge’s summing-up could, on any basis, have resulted in a miscarriage of justice.  The directions in regard to reasonable doubt, the onus of proof, and the treatment of evidence are detailed and incapable of being criticised, as is the obvious effort the Judge went through to ensure the defence case was adequately put to the jury.  It is unsurprising that Mr Kaye, who was Mr Bradbury’s counsel at trial, took no issue with the summing-up, when asked by the Judge at the conclusion of that summing-up whether he had any concerns about an obviously difficult trial, with a somewhat awkward client.

Mr Bradbury’s additional contentions

[17]     We have already been rehearsed the outline of Mr Bradbury’s contentions.  We turn first to the allegations made against the “officer”, Detective Ander.

[18]     In his evidence-in-chief, Detective Ander relates that while the persons he sent to Mr Bradbury’s house in the first instance were unable to locate the knife, he discovered it upon undertaking his own survey.  The location and discovery is described at page 350 of the case.  Reading Mr Kaye’s cross-examination of Detective Ander, there appears to be the shadow of an allegation that the knife was placed there by someone else, but the point is never explicitly made.  See for instance the discussion of “securing the scene” (and the lack of officers stationed to act as wardens over the premises) at page 357.  No allegation of tampering was put to Detective Ander.

[19]     Mr Bradbury’s next apparent concern lies with the way Detective Ander conducted his interview.  At several points, Mr Kaye explicitly put to Detective Ander that the interview was conducted in breach of Mr Bradbury’s right to a lawyer under the New Zealand Bill of Rights Act 1990 (s 23(1)(b)): see for example, page 372 at line 5.  At trial Mr Kaye asserted that Mr Bradbury expressed the wish not to make any statements without his lawyer being present, but that Detective Ander carried on with taking a statement regardless.  Detective Ander denied this forcefully (a denial that is clear on the evidence and directly conflicts with Mr Bradbury’s contention that Detective Ander agreed with the assertion).   Furthermore, it was asserted that when Mr Bradbury refused to sign the statement (it containing in Mr Bradbury’s opinion systematic errors of transcription), Detective Ander got “mad” and began shouting (which is again denied).  Of particular note, and in contrast to the statement transcribed by Detective Ander, Mr Bradbury asserted that the knife found outside his house was not his, only that it looked similar to one that he had lost some time ago.  Mr Bradbury contended that this was what he told Detective Ander during their interview, but that Detective Ander had incorrectly recorded Mr Bradbury as stating that the knife was his.  Mr Bradbury’s contention that he had lost the knife three to four months ago is also recorded in the statement (see pages 363 and 364).  However these points were duly made in Mr Bradbury’s examination-in-chief, see pages 406 and 407, and were therefore before the jury.

[20]     Finally, Mr Bradbury asserts that Detective Ander was “caught” changing his statement at trial.  Detective Ander had asserted throughout his direct examination and his cross-examination that Detective Alwyn had been present as a witness as he took the statement from Mr Bradbury.  However, after contacting Detective Alwyn and seeing her notebook, Detective Ander asked to be recalled.  He then confirmed that in fact Detective Alwyn was only present when Detective Ander asked Mr Bradbury to sign off on the statement (see pages 378 and 379 of the case).

[21]     It is difficult to see how these contentions either individually or cumulatively could have resulted in a miscarriage of justice.

[22]     First, in relation to the presence of Detective Alwyn during the interview, the point was eventually accepted by Detective Ander, and the Judge duly made reference to Mr Kaye’s contention that this affected the Detective’s credibility (see pages 31 and 527 of the casebook). 

[23]     Secondly, the allegation of Police fraud was never actually put at trial. 

[24]     Thirdly, there appears to have been no challenge to the admissibility of the statement of Mr Bradbury produced by Detective Ander.  So there does not appear to be any mistake of law on behalf of the trial Judge (s 385(1)(b) of the Crimes Act 1961).  The issue at most could amount to an allegation of counsel incompetence through counsel’s failure to raise the issue of evidence admissibility before the Judge.  However having regard to R v Sungsuwan [2006] 1 NZLR 760, it would be a distinctly uphill battle to allege a miscarriage of justice had that occurred. As Tipping J said at [110] of Sungsuwan:

Ordinarily two things must be shown.  First, something must have gone wrong with the trial or in some relevant way.  Second, what has gone wrong must have led to a real risk of an unsafe verdict.  That real risk arises if there is a reasonable possibility that a not guilty (or a more favourable) verdict might have been delivered if nothing had gone wrong.

[25]     In our view, considering the evidence as a whole, including that of several witnesses and the forensic examination, it is unlikely a more favourable verdict would have eventuated even if this evidence had been excluded.  The exclusion of the evidence itself would have in any event been an unlikely outcome of any application to that effect. 

[26]     The next point is Mr Bradbury’s concern that one of the jury members should not have been sitting on the case.  No formal evidence of this has been adduced, and there appears to be no reference to it in any of the court files.

[27]     From what Mr Bradbury told us today, Mr Kaye took him aside and was involved in this matter as counsel.  We think there is considerable force in Mr Burn’s observations that counsel apparently took the view that there was insufficient connection to be concerned about the presence of this jury person on the particular jury.

[28]     Finally, Mr Bradbury complained that the Judge, by his demeanour, had been scornful during the summing-up, of his statement.  Mr Kaye did not consider this warranted comment; and there is no evidence to support the concern.

Conclusion

[29]     It is not clear to us if leave is required for Mr Kaye to withdraw.  If it is, such leave is given.

[30]     None of the points of appeal are made out.  The appeal against conviction is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington