R v STEPHEN MICHAEL BRADFORD [2003] NZCA 259 (11 November 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA368/02

THE QUEEN

v

STEPHEN MICHAEL BRADFORD

Hearing: 29 October 2003

Coram: Tipping J

Rodney Hansen J

Paterson J

Appearances: R Neave and K H Cook for the Appellant

P J Shamy and A M Toohey for the Crown

Judgment: 11 November 2003

JUDGMENT OF THE COURT DELIVERED BY PATERSON J

Introduction

[1] Mr Bradford was found guilty by a jury on two counts.The first was that he being a male, assaulted a female, namely, his wife (count 5).The second was that with intent to injure his wife, he assaulted her (count 6).He now appeals against those convictions.

[2] The indictment contained six charges.On the morning of the trial, Mr Bradford pleaded guilty to one count of cultivating cannabis.The jury found him not guilty on three other charges.They were representative charges of threatening to kill, being a male assaulting a female, and indecently assaulting a female.In all counts, the alleged victim was Mrs Bradford.

[3] Count 5 was based on an allegation by Mrs Bradford that in late July 2001 her husband got very angry and hit her on the jaw with his fist.She had swelling on her jaw and treated that swelling with warm water.The incident occurred the day after the police seized cannabis from Mr Bradford.The only evidence called by the Crown in support of this count was the evidence of Mrs Bradford.In effect, it was her word against his.

[4] Count 6 arose from an incident on 6 August 2001.Mrs Bradford’s evidence was that Mr Bradford lit a fire in a shed and tried to tie her to a chair for the purposes of having her killed in the fire.Mr Bradford’s position was that his wife had fabricated the story.His version of the incident was that while he was tied to a chair as part of a cleansing ceremony she tried to kill him by setting fire to the shed.

[5] Mrs Bradford’s credibility was the central issue in respect of all five counts.It was necessary to accept Mrs Bradford’s evidence as credible before he could be convicted.On count 5 her evidence was the only evidence.The jury obviously accepted her evidence on counts 5 and 6, but did not accept it to the required standard of proof on counts 2, 3 and 4.

Grounds of appeal

[6] Central to all the grounds of appeal is the allegation that inadmissible evidence was led.Most of it was led without objection from defence counsel.The appeal grounds, however, do not rely upon the leading of the evidence but are based either on the manner in which the Judge dealt with that evidence in his summing up, or with his failure to deal with it.

[7] The evidence upon which it was submitted that incorrect or insufficient directions were given was;

a) The video interview of Mr Bradford by a police officer and the in Court evidence of that police officer ;

b) Evidence of Mrs Bradford’s distress given by a neighbour;

c) Unexpected evidence of a recent complaint nature given by Mr Bradford’s mother.

The interview and police witness evidence was particularly relevant to count 6 but also had a bearing on count 5, the distress evidence was relevant to count 6 and the recent complaint evidence was relevant to count 5.

The interview

[8] Mr Neave, for Mr Bradford,did not submit that the videotaped interview of Mr Bradford by the police officer was objectionable as a whole, but objected to the latter part of it when the detective frequently challenged Mr Bradford’s evidence.There were numerous times when the police officer stated that she did not believe what Mr Bradford was telling her, and she accused him of lying.The police officer also gave evidence at the trial where she initially read a brief of evidence.This evidence included her qualifications to give opinion evidence on arson.She had attended two courses on arson investigation in 1995 and 1996, and in the latter year also attended a fire investigation course run by the Victoria Arson Squad in Victoria, Australia.Over the seven years prior to the trial, she had attended numerous arson scenes and suspicious fires, and had given evidence in Court in relation to her findings at those scenes.Her evidence included a summary of the discrepancies between what she found at the fire scene and Mr Bradford’s versions of what occurred.Acceptance by the jury of her reconstruction evidence would likely discredit Mr Bradford’s version of the reason for the fire.The Crown Solicitor led from the detective, evidence of Mr Bradford’s demeanour during the interview, and the fact that she had made it clear to Mr Bradford at that time that she did not believe what he was saying.Her evidence in chief repeated many of the discrepancies she had referred to in her written brief.

[9] The Judge in his summing up dealt with both the style of the detective’s interview with Mr Bradford, and her opinion evidence.In respect of the videotaped interview he said:

30. ...There has been much punch and counterpunch associated with the accused’s videotaped evidence, hasn’t there.Much of that is related to Detective Wilson’s trenchant challenge of the defendant, particularly the accused, particularly towards the end of the interview when she told him that she simply did not believe him, and Mr Gresson will say “Well, he was an angry man at that stage” and Mr Edgen says, “Well wouldn’t you get agitated as well if you were challenged so forcefully by a police officer in circumstances where you were trying to give your genuine innocent explanation.”

31. The position about that is this, police officers have a duty when they are investigating serious allegations of this kind to put the allegations in a strenous way to the suspect but what the officer believes the accused has done means nothing to you, Mr Foreman and Ladies and Gentlemen.If you like, that is a police technique which they sometimes adopt when questioning suspects because sometimes the suspect will crack upon that sort of strenous questioning and then confess to having committed the crimes and so it is a legitimate police technique but the point about it, so far as you are concerned, is this, what the police officer, or anybody else believes about the accused’s alleged part in these crimes is of no relevance to you at all.You simply put the police officer’s belief to one side.In the end, what do you believe, that is really the issue.

[10] The Judge gave standard directions on expert witnesses.A number were called, including Detective Wilson whom the Judge noted “gave evidence as an expert witness in respect of those pieces of her evidence.”That comment related to her evidence reconstructing the fire scene.There were three expert witnesses in respect of the fire.The Judge noted they have given their opinions on conclusions they drew from observations they had made or experiments they had carried out, and then said:

... but juries are always told this, expert witnesses do not decide cases, juries do. In other words, you treat the evidence of the expert witnesses no differently from the way you treat the evidence of the lay witnesses, in other words, it is for you to decide what you make of the expert witnesses’ evidence by accepting or rejecting in whole or in part as the case may be and so do not be daunted, if you like, by the fact that some of these people are highly qualified and experienced.

The Judge then dealt with the evidence given by the other expert witnesses but did not deal specifically with the evidence given by Detective Wilson.

[11] Mr Neave, on behalf of Mr Bradford, submitted that the videotaped interview of Mr Bradford amounted to a clear breach of the rule in R v Halligan [1973] 2 NZLR 156, and was arguably also a breach of R7 of the Judges’ Rules.He acknowledged that the statement had been admitted for legitimate tactical reasons, but submitted that the Judge was required to give a clear warning of the use to which the statement could be put.In his submission, the warnings given in the summing up were effectively nullified by the detective being allowed to give evidence as an expert, and the views she expressed on the accused’s credibility while in the witness box.In summary, the criticism of the summing up was that the Judge should have specifically directed the jury that it should ignore the detective’s opinion on Mr Bradford’s credibility and should not be influenced by the opinions expressed of an expert on matters which were not the subject of the expert opinion.It was submitted that the Judge’s comment in his summing up, that “it is for you to decide what you make of the expert evidence in the case ...” should have been qualified to make it clear that, in the detective’s case, the comments on credibility were not part of her expert evidence.

[12] Mr Shamy, for the Crown, noted there had been no challenge made to the statements during the hearing and surmised that the evidence was probably not objected to by the defence to show consistency between what Mr Bradford said during the interview and the evidence he gave at the hearing.In counsel’s submissions, the directions given by the Judge were adequate in the circumstances of this case, and the verdicts of the jury did not indicate that they were influenced by the detective’s comments on credibility.Although the detective did not give evidence in respect of the three charges on which Mr Bradford was acquitted, the jury’s verdicts indicated that they were able to determine on each charge whether or not the complainant was truthful.

[13] The Halligan principle relied upon by Mr Neave is that police officers, cannot be allowed to introduce evidence for the Crown by making accusations to a suspect, and, when they receive no damaging admissions in reply, detailing to the jury what they said as if it were relevant evidence.This Court considered similar circumstances in R v Hunt (CA178/00, 26 September 2000).The Court saw that case as a bad case of overreaching by an interviewing officer which resulted in prejudicial matter being put before the jury in a case calling for a difficult credibility assessment without direction from the Judge on its significance.

[14] In this case, there was no objection to the videotaped interview being shown to the jury.Nor was there any objection taken to the expert evidence given by Detective Wilson.We are of the view that there was overreaching by the police officer in the interview.However, the issue is whether the Judge in the circumstances directed the jury on the significance of the evidence.In our view, he did.While we do not share some of the Judge’s views on police technique stated inparagraph 31 of the summing up (see para 9 above), the Judge concluded that paragraph by stating “what the police officer, or anybody else believes about the accused’s alleged part in these crimes is of no relevance to you at all.You simply put the police officer’s belief to one side.”The jury was firmly directed that the police officer’s beliefs about Mr Bradford’s involvement were to be ignored.We accept that if the detective’s evidence on the fire scheme was accepted, it would undermine Mr Bradford’s credibility.This is a consequence of the acceptance by a jury of any expert’s evidence where his or her opinion differs from the account given by the accused.However, it is not a reason for excluding the evidence of a duly qualified expert policeman.Here the Judge not only gave an appropriate warning on how the jury should treat the experts’ evidence but also, gave an appropriate direction to take no account of the detective’s view about Mr Bradford’s credibility.We are of the view that the Judge’s directions were appropriate and sufficient in the circumstances.

The distress direction

[15] The evidence of distress was given by a neighbour, Mrs Sampson.She gave evidence that Mrs Bradford knocking on her door at about 7 pm on the evening of 6 August.When asked about Mrs Bradford’s demeanour at that time, Mrs Sampson replied “very, very distressed.”She elaborated on this answer and said that Mrs Bradford “was terrified.”There were several references in her evidence to Mrs Bradford’s distressed state.

[16] In his summing up, the Judge dealt with Mrs Bradford’s credibility when he said in paragraph 24:

On the other hand you are entitled also in having regard to what you make of the complainant’s credibility, you are entitled to have regard to the evidence of her demeanour and distress immediately after the events, whatever they were in the shed on 6 August and that evidence comes from Constable Hearn, from Mrs McKenzie and from Mrs Sampson, who was the next door neighbour and whom you might think in this case had the advantage of being a completely independent witness, you might think, it is a matter for you, with apparently no axe to grind one way or the other so far as the parties were concerned.It is for you to decide what you make of the evidence of those witnesses, accepting or rejecting as you think fit, and in terms of those parts of the evidence you accept, you are entitled to apply that as well in terms of what you make of the complainant’s evidence.

The Judge returned to Mrs Sampson’s evidence when summarising the Crown case when he said:

The independent witness, Mrs Sampson, supports the complainant’s evidence. If she is not correct, then the complainant is a very good actress, submits Mr Gresson.

[17] Mr Neave’s submission was that the jury was clearly told in these directions that they could use distress to corroborate Mrs Bradford’s evidence.In the circumstances, it was submitted that the Court should have applied the rules which formerly applied to sexual cases when there was need to corroborate the complainant’s evidence.Any corroboration must be independent, and for there to be corroboration by a complainant’s demeanour, the test is whether the condition as observed by some independent witness was involuntary and uncontrived in the sense that it truly may be regarded in itself as independent of her allegations:see R v Moana [1979] 1 NZLR 181.

[18] The Crown’s position was that the evidence was not given as corroboration or an attempt at self corroboration.It was led to show consistency with what the complainant alleged had occurred and her state of distress was referable to the horrific incident she had experienced.There was a close reference in time between the alleged incident and the evidence of the demeanour being observed.In this case, the credibility issue was for the jury to determine, and the Judge directed the jury accordingly.

[19] In our view, the suggestion of a contrived complaint was clearly before the jury.It is apparent that the Crown counsel was responding to this issue when he noted that if Mrs Sampson was not correct “the complainant is a very good actress.”This was not a case analogous with the sexual corroboration rules in that there was other evidence which corroborated Mrs Bradford’s version of events.The Judge had clearly directed the jury that it was for them to decide what they made of the evidence of Mrs Sampson.Her evidence was led without objection and she was not cross-examined by defence counsel.In the circumstances, we are of the view that Mrs Sampson’s evidence was relevant and admissible, and the Judge’s direction sufficient.

Recent complaint evidence

[20] The evidence of “recent complaint” came from Mr Bradford’s mother who was called to give evidence on his behalf.The evidence was given during evidence in chief and was:

Question : Did Reeta ever talk to you about Stephen threatening or hitting her?

Answer : Once she did, she came over and said Stephen had hit her ...

Question : Are you able to identify approximately when that was?

Answer : It might have been after the cannabis was found.

Question : And obviously before the fire?

Answer : Yes

Question : On that occasion did you notice any bruising or swelling or injuries of any sort?

Answer : No.

[21] The Crown counsel revisited the matter in cross-examination and elicited that the mother had made similar comments to a police officer.The matter did not rest there.After the Judge had summed up, counsel raised various matters with the Judge.Crown counsel, referring to count 5, noted that the Judge in his summing up and defence counsel in final submissions had both commented that there was no evidence apart from that of Mrs Bradford.Counsel pointed out there was Mr Bradford’s mother’s evidence confirming that the complainant did complain to her about the assault.The Judge said:

I have been troubled about that and I elected to say nothing about it because, frankly, that is hearsay and it is not admissible as recent complaint evidence because it is not a sexual assault she is complaining of, this is the punch to the jaw.It could have been referred to, I suppose, as evidence not as to the truth of it but the fact that she said it.

Crown counsel suggested that the jury be recalled and reminded of the evidence.The Judge stated he was not minded to get them back for that purpose. It was a matter of detail and he thought the jury had the broad picture.

[22] Mr Neave’s submission was that in relation to count 5, there was no supporting evidence and the Judge fairly directed the jury to that effect.It was therefore difficult to say on what basis the jury could have accepted Mrs Bradford’s evidence on that count and rejected it on counts 2, 3 and 4.If the jury had accepted Mrs Bradford as a wholly credible witness it would have convicted Mr Bradford on all counts.The inference was that it only convicted him on those counts where they could find evidence which supported Mrs Bradford’s evidence.In respect of count 5, the support must have come from the illegitimate, unfair and prejudicial hearsay evidence given by Mr Bradford’s mother.

[23] Mr Shamy accepted that it was unfortunate that the evidence had been given, but submitted that the Judge dealt with it appropriately by not referring to it in his summing up and thereby not drawing the attention of the jury to it.He submitted the reason the jury convicted may have been because it was a specific change and not a representative charge, as were the charges on which the not guilty verdicts were given.

[24] We are of the view that there is substance in this ground of appeal.The evidence was hearsay and inadmissible.There is a real risk that if it had not been given, the jury would have also found Mr Bradford not guilty on this charge because there was no other corroboration of Mrs Bradford’s evidence.We are not satisfied that no substantial miscarriage of justice has actually occurred on count 5.This is not a case where the proviso to s 385(1) of the Crimes Act 1961 can be applied.For this reason, the verdict on count 5 should be quashed.

Result

[25] The appeal against conviction on count 6 is dismissed but the appeal against conviction on count 5 succeeds and that conviction is quashed.

[26] Mr Bradford has served his sentence and there was no appeal against that sentence.In the circumstances, there will be no order for a new trial.We note that it does not necessarily follow that Mr Bradford’s sentence would have been reduced, even if there had been an appeal against sentence.

Solicitors:

The Crown Solicitor, Christchurch