Cross v Police
[2023] NZHC 2868
•13 October 2023
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE
CRI-2022-476-12
[2023] NZHC 2868
BETWEEN JESSICA MAY CROSS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 28 September 2023 Appearances:
T J Jackson for Appellant
S M H McManus for Respondent
Judgment:
13 October 2023
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 13 October 2023 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
CROSS v NEW ZEALAND POLICE [2023] NZHC 2868 [13 October 2023]
Introduction
[1] Jessica Cross was found guilty on 30 September 2022, in the District Court at Timaru,1 on three charges, being:
(a)disorderly behaviour;2
(b)resisting a Police officer;3 and
(c)assaulting a Police officer.4
[2] Judge Large sentenced Ms Cross to nine months’ supervision and 40 hours’ community work.5 Ms Cross appeals both conviction and sentence.
Facts
[3] The facts on which Ms Cross was convicted (though at issue on this appeal) are as follows.
[4] Ms Cross was at The Warehouse in Timaru. She was approached by a manager and a security guard who attempted to trespass her, apparently as a consequence of something which happened on a previous occasion. Ms Cross refused to accept a verbal trespass, and she also refused to accept a written trespass. The Police were called.
[5] Constables Davis and Charles arrived and asked Ms Cross to leave multiple times, which she refused to do so. At this stage of events, Ms Cross was described as being “assertive” and “vocal” and unwilling to accept the advice she was trespassed.
[6] She agreed to leave the store, but there her behaviour escalated. She could be heard from inside the store screaming and abusing the officers saying, for instance,
1 New Zealand Police v Cross [2022] NZDC 20613.
2 Summary Offences Act 1981, s 4(1)(a); maximum penalty $1,000.
3 Summary Offences Act, s 23(a); maximum penalty 3 months’ imprisonment or a fine not exceeding $2,000.
4 Summary Offences Act, s 10; maximum penalty 6 months’ imprisonment or a fine not exceeding
$4,000.
5 New Zealand Police v Cross [2022] NZDC 20610.
“Fuck you, fuck this I’m not trespassed.” Constable Charles considered members of the public looked shocked or offended.
[7] The officers eventually arrested Ms Cross for disorderly behaviour, though Ms Cross did not accept the arrest and resisted being placed in handcuffs. She had to be escorted to the police car by the two officers and screamed while going with them. When Constable Davis leaned forward to open the police car and clear some space, Ms Cross struck Constable Charles with her elbow before kneeing her in the groin. Constable Charles appeared to be in pain a few seconds later.
District Court decision
[8] Judge Large first canvassed Ms Cross’s presumption of innocence and the onus on the Police to prove the elements of the charges. The Judge went on to outline the evidence that had been presented and the conflicts between different accounts from Ms Cross, Police officers, and members of the public.
[9] As Ms Cross elected to give evidence, the Judge gave himself a tripartite direction, noting that a finding of not guilty necessarily followed if he accepted Ms Cross’s evidence or if that evidence raised reasonable doubt. Even if the Judge rejected Ms Cross’s evidence, he acknowledged that was not a complete answer as the Police still bore the onus of proving the charges.
[10] The Judge considered Ms Cross’s evidence was “entirely unconvincing and unworthy of belief” as well as being “implausible” and “not consistent” with the manner in which she behaved in the store.6
[11] The Judge considered that if he accepted the prosecution evidence as to the language used by Ms Cross, the charge of disorderly behaviour would be made out given the nature of the language, its repetition, and the circumstances of its delivery, being in the mid-afternoon with members of the public around.
6 At [41].
[12] Judge Large placed considerable weight, in resolving the conflict of evidence, on the evidence of independent bystanders. Some of their evidence was unchallenged, and one witness in particular had come forward unprompted, rather than being approached by the Police. This evidence concerned Ms Cross yelling and using abusive language, struggling during the process of her arrest, and assaulting Constable Charles. Multiple witnesses noted Constable Charles appearing to be in pain. This evidence was consistent with that of the officers. The Judge acknowledged a video of the incident did not conclusively show a blow being delivered but noted issues with its filming.
[13] The Judge assessed the officers’ evidence as fair, not overstated or embellished, and corroborated by independent witnesses. There was no conflict between their evidence giving rise to reliability or credibility concerns.
[14] The Judge concluded that the elements for disorderly behaviour were made out on the evidence of the language and behaviour of Ms Cross when she left the store. Resisting arrest was proved by the observed behaviour of Ms Cross refusing to co-operate with police or be placed in the police car after her arrest. The Judge also considered the assault of an officer charge, wherein Ms Cross struck Constable Charles in the groin while police were getting her into the car, had been established. Both the assault and the resisting arrest occurred at the time the officers were acting in the execution of their duty.
[15] In sentencing Ms Cross, Judge Large convicted and discharged her on the disorderly behaviour charge. The Judge did not think a fine was appropriate, and the other penalties were considered sufficient. On the remaining two charges, a sentence of nine months’ supervision was imposed, with a requirement to undertake an assessment for anger management counselling and undertake any recommended course. The Judge also ordered the minimum amount of community work, being 40 hours.
Principles on appeal
[16] Section 232 of the Criminal Procedure Act 2011 provides that the High Court may only allow an appeal against conviction if satisfied that the trial judge “erred in
his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason”. A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial.7
[17] The appeal proceeds by way of rehearing and this Court is required to form a view of the facts.8 If this Court reaches a different view on the evidence, it follows the trial judge necessarily will have erred and the appeal must be allowed.9 The onus is on the appellant to show that an error occurred.
[18] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may be allowed by this Court only if it is satisfied there has been an error in the imposition of the sentence and a different sentence should be imposed.10 As the Court of Appeal identified in Tutakangahau v R (quoting the lower court’s decision), a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.11 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.12
Conviction submissions
Appellant’s submissions
[19] Mr Jackson, for Ms Cross, says there was insufficient evidence for the Judge to convict.
[20] In respect of the disorderly conduct charge, Mr Jackson says the Judge engaged in erroneous reasoning. He submits the Judge failed to have regard to the standard of conduct required to establish disorderly behaviour and instead said that if he accepted
7 Criminal Procedure Act 2011, s 232(4).
8 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]-[32].
9 At [38].
10 Criminal Procedure Act, ss 250(2) and 250(3).
11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
12 Ripia v R [2011] NZCA 101 at [15].
the evidence of the officers, the charge would be made out. There needed to be, Mr Jackson submits, offensive behaviour which seriously disturbs others’ enjoyment of public spaces, citing the Supreme Court’s decision in Brooker v Police.13
[21] He says the Judge also failed to give proper weight to the video evidence, which does not support there having been disorderly conduct until the attempt to handcuff Ms Cross outside the store. Mr Jackson contends the video evidence should have been sufficient to raise doubt when the witnesses were general in their accounts and lacked precision as to the exact words used by Ms Cross.
[22] Mr Jackson also says the CCTV footage from inside the store is broadly supportive of Ms Cross’s account. She appears to be having a civil, not aggressive, discussion with the officers and is not causing a disturbance for others. She leaves the premises when it appears the officers motioned for her to continue discussions outside. He then suggests the basis for the arrest was in response to something Ms Cross said to Constable Davis.
[23] Mr Jackson says further that the Judge does not clearly identify what qualified as resisting arrest and conflated that conviction with the disorderly behaviour. He also questions whether the officers were acting within the course of their duty. He notes that the charge of disorderly conduct carries a fine only, and the Court had no regard for whether the Police had an entitlement to arrest Ms Cross.14 The video evidence, Mr Jackson says, shows Ms Cross being walked to the police car. He submits she is not being forcibly walked or dragged against her will, and there are no signs of resistance. Any resistance which is present is justified given the lack of entitlement to arrest.
[24] Most of Mr Jackson’s argument concerned the assault charge. He contends the evidence does not demonstrate where and how Ms Cross might have been able to strike Constable Charles in the way described, and that the constable did not immediately react as if she had been kicked but only showed discomfort after walking around the
13 Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91.
14 This appears to be referencing s 315(2) of the Crimes Act which predicates warrantless arrest on good cause to suspect a person of having committed any offence punishable by imprisonment.
other side of the car. In making this submission, he makes extensive reference to the video taken by Ms Lyat from a second floor window overlooking the carpark. When the officers and Ms Cross reach the car, the camera drops below the window frame briefly. When it pans back up, the car door is open and there is a sudden movement. Mr Jackson says that, given the orientation and movement of those involved, there cannot have been a kick by Ms Cross. Ms Cross then goes to ground, with the officers restraining her. They get back to their feet. At this stage, Constable Davis releases Ms Cross to move a bag from the back seat of the car, leaving Constable Charles holding Ms Cross’s arm and standing behind her. The camera again pans away before returning to show the Police guiding Ms Cross into the car. Mr Jackson says, given how Constable Charles and Ms Cross are oriented in relation to each other, a kick cannot have occurred at that point either.
[25] Mr Jackson then notes Constable Charles walks to the other side of the vehicle with no apparent limitation before bending over and appearing to be in discomfort.
[26]Mr Jackson questions the evidence of several witnesses.
(a)He says the evidence of Ms Edwards, the store security worker, as to Ms Cross’s behaviour before and while under arrest appears to have been exaggerated when compared to the video evidence.
(b)On the basis that his analysis of the video evidence is correct, he questions Ms Howard’s evidence that “it looked like she had kicked or kneed the female officer”.
(c)He says Ms Goodman’s evidence that Ms Cross wasn’t trying to walk properly while being arrested and almost had to be carried, is an exaggeration. He also says her evidence about a kick from Ms Cross was simply speculation based on Constable Charles being in pain.
(d)He says Ms Lyat’s evidence does not add to the prosecution case as she did not see the contact of the kick and she has reconstructed (probably
inadvertently) what she thinks took place having reviewed the recording on her phone.
(e)He argues Ms Hewson was quite some distance from the incident, with potential visual obstructions, and is biased given her praise of the officers and having come forward after reading an article in the newspaper. She confirmed she did not actually see Ms Cross strike Constable Charles.
(f)Constable Charles’ evidence as to what occurred inside and outside the store, Mr Jackson says, does not align with the video evidence. He says the level of disturbance inside the store appears overstated, and the CCTV shows Ms Cross walking away from the officers rather than yelling and swearing at them. Her evidence was that Ms Cross had struck her in the arm with her elbow before turning and striking her in the groin with her left knee. However, he says this would have been physically impossible to do in the time available on the footage.
(g)He takes issue with the evidence of Constable Davis who said that, after opening the car door, he turned back to Constable Charles and Ms Cross and saw that Constable Charles had a look of pain on her face. Mr Jackson says he cannot have seen her face at this point. Mr Jackson says Constable Charles gives inconsistent evidence about why Ms Cross ended up on the ground.
[27] Fundamentally, Mr Jackson submits it was not possible for Ms Cross to have, while handcuffed and in heels, elbowed Constable Charles, turned, and delivered a knee to the groin with her left leg.
[28] Further, he argues the Judge was wrong to reject Ms Cross’s evidence. She was consistent as to the central events, her explanations were plausible, and it is obvious, he says, that the situation deteriorated with the involvement of Constable Charles. He says the Judge appears to have formed an unfavourable opinion of
Ms Cross and criticises the references to her apparent “motive” to give untruthful evidence.
[29] In the event the Court allows the appeal, Mr Jackson submits the convictions be quashed and no re-hearing ordered. He says that given the level of the charges and difficulty reconciling witness accounts with video footage, a re-hearing will be inconvenient, complicated, and have little chance of resulting in a conviction.
Respondent’s submissions
[30] Ms McManus, for the respondent, suggests the appeal can be separated into the following issues:
(a)Whether the Judge failed to consider the correct standard for disorderly behaviour.
(b)Whether the Judge failed to consider the evidence correctly in respect of the tripartite direction.
(c)Whether the Judge failed to take into account the video evidence when considering the evidence of prosecution witnesses.
(d)Whether there was insufficient evidence to convict Ms Cross of the assault charge.
(e)Whether the Judge failed to consider whether the officers were acting within the course of their duty in relation to the resisting arrest charge.
[31] As to the first issue, Ms McManus notes the difficulty courts have had in defining a term as broad as “disorderly behaviour”. She notes the four different articulations of what comprises such behaviour in the Supreme Court decision in Brooker v Police.15 However, she summarises them by saying disorderly behaviour is conduct that constitutes a disturbance to good order which, in the time, place and
15 Brooker v Police, above n 13.
circumstances of the case, is at a level reasonable citizens should not be expected to endure.
[32] Ms McManus acknowledges the Judge did not make reference to Brooker, or the Supreme Court’s decision in Morse v Police, when discussing the disorderly conduct charge.16 However, she says the Judge is not required to do so, and the failure does not lead to a miscarriage. Ultimately, it is whether the conduct in question reached the threshold for disorderly conduct in the particular circumstances of the case. Here, Ms Cross’s behaviour was protracted and excessive. She was abusive, screaming, and shouting, and several members of the public were disturbed by her behaviour. The Judge approached the matter by taking account of the circumstances, noting it occurred in mid-afternoon with members of the public, including children, in the area, and was entitled to reach the view this was disorderly behaviour.
[33] Regarding the tripartite direction, Ms McManus notes that judges need not refer explicitly to the tripartite direction. Despite this, the Judge did so, and did not approach the judgment via an impermissible line of reasoning. The Judge expressly said he did not find guilt as a result of rejecting Ms Cross’s evidence. He went on to say why the prosecution evidence was sufficient to establish the charge. In reaching his conclusions, Ms McManus notes that Judge Large, as the trial Judge, was best placed to consider the credibility of the various witness accounts.
[34] Ms McManus then moves to address the issues raised regarding the video evidence and the sufficiency of evidence together. The video evidence, she says, does not assist on the charge of disorderly conduct as it only shows Ms Cross after she was arrested and while being taken to the Police vehicle. Similarly, she says Ms Cross resisted arrest prior to the action the video captures, and the video cannot, as the appellant suggests, be determinative. She cautions against using the video to negate the various witnesses’ evidence when much of the evidence given by witnesses’ concerns matters which occurred out of shot. As far as it speaks to the assault, Ms McManus notes the camera pans away from the scene for three seconds, during which time the scuffle takes place between the parties. Further, as the footage is blurry
16 Morse v Police [2011] NZSC 45, [2012] 2 NZLR 1.
and captured from a distance, it is simply another piece of evidence rather than being determinative in any way. The Judge, while acknowledging the video and what it does and does not show, also used the evidence given by various witnesses in arriving at a conclusion of guilt.
[35] Ms McManus then addresses the resisting arrest charge and the appellant’s dispute over whether the constables were acting in the course of their duty. She notes s 39(1) of the Summary Offences Act provides (with some exclusions) that any constable may arrest and take into custody without a warrant any person whom they have good cause to suspect of having committed an offence against any of the Act’s provisions, with some exclusions. This includes the offence of disorderly behaviour under s 4. The section refers to “good cause to suspect”; it does not require the relevant suspected offence to be established later. Both officers gave evidence as to the basis of the arrest including that they conferred with each other before arresting Ms Cross. They were therefore acting in the execution of their duty, and this ground should fail.
Appeal against sentence
[36] The submissions on the sentence appeal were not as forcefully advanced. Mr Jackson raises a concern as to whether the 40-hour community work sentence on the two charges of resisting arrest and assault of a police officer is cumulative or concurrent. He also argues a sentence of supervision of nine months is unwarranted given the lack of drugs or alcohol. He notes Ms Cross has recently given birth and is a full-time mother and submits that supervision and a “come up if called upon” sentence would be more appropriate.
[37] Ms McManus argues it is clear the 40-hour sentence was imposed on the charges concurrently, as demonstrated by the Judge’s comment that this was the minimum amount of community work he could order. This is supported by the Order for Sentence of Community Work which states the sentence was 40 hours of community work.
[38] Ms McManus notes that a sentence of supervision need not be predicated on drug and alcohol issues. Violent offending will often attract sentences with a
rehabilitative focus. The sentence is clearly within range, and Ms Cross’s current circumstances do not affect whether the sentence was manifestly excessive.
Analysis
[39] I approach the issues on appeal on a charge by charge basis and consider whether the evidence was sufficient to support each charge and whether the Judge made any other errors, as alleged, in deciding the charge was proved.
Disorderly behaviour
[40] The Judge, relying on the accounts of the constables and other bystanders, concluded that disorderly behaviour was made out on the basis of Ms Cross’s behaviour and language leaving and outside the store.
[41] Ms Cross gave evidence that she was calm inside the store both with staff and in her interactions with police. She says that after going outside with the constables, the conversation there did not concern the trespass and was steered by Constable Charles. She says Constable Charles was needling her about a previous interaction they had had and threatened to issue a fine in relation to it. She said her father was getting agitated about Constable Charles and, as they were walking away, about 15– 20 metres from the police, she said to her father, “she’s nothing but a fucking bitch”.
[42] Ms Cross’s father’s evidence was broadly supportive, saying Constable Charles was “giving it whatever” and being “yap, yap, yap, yap, yap”. That said, in several aspects his account is not consistent with Ms Cross’s. He says that his daughter was getting agitated and this increased when the female constable arrived. Once outside, the discussion heated up about the trespass order. He says he was not getting upset, and it was he who calmed the situation. He acknowledged there was a bit of swearing and cursing going on which was addressed to the constable.
[43] Constable Davis, who arrived at the store first, said in evidence that engagement with Ms Cross in the store was not bad. He noted she became angrier when Constable Charles arrived and then again outside the store where she began shouting abuse and expletives, including along the lines of, “Fuck you, fuck this. I’m
not trespassed”. He and Constable Charles eventually decided her behaviour was unacceptable and warranted arrest.
[44] Constable Charles’ evidence primarily concerned what occurred outside the store. She gave evidence that, while Constable Davis attempted to discuss the trespass notice, Ms Cross was insistent on shouting at her about a previous interaction she and Ms Cross had had, and Ms Cross screamed at her that “I will fucking end your career” and “you are fucked now you bitch”. She says some members of the public were looking shocked or offended, and a mother and child were trying to enter the store at this time. She says she and Constable Davis attempted to disengage and have Ms Cross depart, but given the continued abuse as she walked away, they decided to arrest her.
[45] Ms Edwards, an employee at the store, said that in early interactions with Ms Cross in the store, she had been agitated and getting in her space, though there was no swearing, and Ms Edwards accepted the evidence of another witness that Ms Cross was assertive but not aggressive at this point. However, she said that once Ms Cross was outside the store she was “quite hysterical” and yelling abuse at the constables outside the store. Ms Cross was told at least three times to leave but did not. She then described Ms Cross as “yelling random abuse back at everyone really” and said that in her 20 years working in security of the store, she had “never seen a performance quite like that”.
[46] Ms Beeby, another staff member, gave evidence as to Ms Cross merely being assertive but not aggressive up until the arrival of police. She noted being able to hear, from inside the store, Ms Cross shouting aggressively outside, and she spoke about the presence of children in the store.
[47] Ms Layt also spoke about Ms Cross not being aggressive with staff initially but later hearing her yelling.
[48] The unchallenged evidence of Ms Goodman referred to hearing “a female voice threatening and carrying on” prior to her arrest.
[49] Similarly, Ms Howard’s unchallenged evidence was that Ms Cross was “shouting aggressively” and “shouting nasty words not suitable for a public place”, and it was loud enough to make her “get up and look out of the window”.
[50] The CCTV footage is of no real assistance in relation to this charge. The camera is some distance from the interaction, and the parties are mostly obscured by the two sets of sliding doors and walls of the building. Ms Cross is out of sight for most of it, but when she can be seen, she does appear to be animated and pointing or gesturing. There is no sound recording on the store CCTV footage, although customers, particularly towards the end of the exchange, can be seen staring at the altercation as they enter the store.
[51] Recognising the advantages the District Court Judge had in assessing the evidence, I can see no basis on which to disturb his conclusion in preferring the evidence of the prosecution. The constables’ evidence as to Ms Cross’s behaviour outside the store was supported by a range of other witnesses whose evidence was relatively consistent, while there are inconsistencies in the evidence between Ms Cross and her father.
[52] In terms of whether the behaviour described met the threshold for disorderly conduct, it was not necessary for the Judge to refer to cases like Brooker and Morse, though more clear reasoning as to the threshold against which he was assessing the behaviour may have been helpful. Ascertaining whether behaviour has reached the threshold of being disorderly or offensive is necessarily case specific and has long been held to be a question of degree with all relevant matters of time, place, and other surrounding circumstances being considered.17 There is overlap in the concepts of “disorderly” and “offensive” insofar as both must give rise to a disturbance to public order beyond that which a reasonable citizen should be expected to bear, and disorderly conduct may also constitute offensive conduct.18 There is a distinction, though, with the notion of causing offence being an underpinning element of offensive behaviour.19
17 Brooker v Police, above n 13, at [90].
18 At [54].
19 Morse v Police, above n 16, at [62]–[63] and [70].
[53] Thus, for behaviour to be disorderly in terms of s 4(1)(a) it must be conduct that constitutes a disturbance to good order which, in the time, place and circumstances of the case, is at a level reasonable citizens should not be expected to endure, and which justifies the intervention of the criminal law.
[54] Here, the circumstances include the repeated and loud use of expletive-laden abuse and the fact the store was relatively busy at the time with people coming and going from the entrance where Ms Cross was, including children. The CCTV shows several people stopping and taking notice of what was going on. On the other hand, I do not accept the behaviour was particularly protracted. Ms Cross’s more egregious conduct appears to be restricted to what occurred as she left and when she was outside the store. The primary target of the abuse was the police, although two witnesses say the abuse was more generally directed.
[55] I accept that in Aue v Police, this Court, on appeal, allowed an appeal against a conviction for disorderly conduct where the appellant was aggressive and yelled at police when they attended his property and were asked to leave.20 The Judge held that a degree of shouting and swearing is not uncommon from time to time in residential neighbourhoods and did not reach the threshold of being disorderly conduct.
[56] However, the present case, in my view, falls just on the other side. This was a public place, and several staff members and members of the public gave evidence about the behaviour, which was not the case in Aue. There were clear signs that Ms Cross’s behaviour was disturbing to the public, and that is reinforced by the evidence of Ms Edwards, who said she had never seen anything like it in her 20 years as a store security officer and the unchallenged evidence of Ms Howard who said Ms Cross was “shouting nasty words not suitable for a public place”.
[57] Unlike in Aue, where neighbours appeared “curious” as opposed to disturbed, there was evidence here that the behaviour did disturb shoppers and staff in the public place and made them uncomfortable. This was not behaviour in a bar at night, where swearing and aggression might be more common place, or in a private home as in Aue,
20 Aue v Police [2013] NZHC 637, [2013] NZAR 471.
but in a public place in the middle of the day near the entrance to a large store where people could not avoid the disturbance.
[58] For these reasons, while the matter is finely balanced, I am satisfied the behaviour described in the evidence which the Judge accepted did amount to disorderly conduct, and the appeal against this conviction is dismissed.
Resisting arrest
[59] Ms Cross said her arrest was very rough. She was not told anything, but was simply grabbed from behind and her arms secured before being marched to the nearby glass wall and forcefully pushed into it. She said this caused a loss of bladder continence. She said she did not struggle as she was walked to the police car before being pushed to the ground. She said her screaming on video was due to the rough arrest.
[60] Mr Cross gave evidence regarding the arrest, although he acknowledges that he not only returned to his car, but also that he only watched the arrest intermittently and was on his phone doing some work.
[61] Constable Charles said Ms Cross pulled, resisted and struggled throughout the arrest process. In particular, she refused to place a second hand behind her back so that handcuffs could be secured and resisted this. She also would not drop items in her hand, including a set of keys, when asked to do so. Constable Davis’ evidence mirrors this. He also said that Ms Cross struggled against the arrest and would not drop the keys in her hands when asked, which he was concerned about due to her behaviour. He says she was tensing and pulling away constantly when he and Constable Charles escorted her to the wall to enable the handcuffs to be fitted, though was somewhat more cooperative when walking to the car.
[62] Both constables gave evidence that walking Ms Cross to the car from the glass wall was easier and that, while she was still pulling and twisting, they were not gripping her tightly. They both also said it was they who took Ms Cross to ground in order to secure her properly in response to the alleged assault.
[63] The evidence of Ms Hewson, the bystander who came forward independently, corroborates that Ms Cross was pulling her arm away so that police could not fit the handcuffs on her and did not co-operate in being walked across to the car. She was consistent, despite being pressed several times, that she had a clear view of matters without cars in the road. The only difference between her evidence and the constables’ evidence is that she assessed Ms Cross to have deliberately gone to ground beside the police car and needing to be lifted up, whereas the constables’ evidence was that they took Ms Cross to ground.
[64] Ms Edwards was able to see the arrest through a set of windows and gave evidence that the constables struggled in getting Ms Cross from the window to the car. She also considered Ms Cross threw herself to the ground when she arrived at the car. Ms Layt gave similar evidence in a statement as to Ms Cross struggling while being arrested but said she was “pretty tame” in the walk to the police vehicle before Ms Cross dropped to the ground.
[65] Ms Goodman’s evidence was that Ms Cross “wasn’t trying to walk properly and it looked like the police officers almost had to carry her”.
[66] The CCTV footage is again of no real assistance in respect of the arrest itself. The cell-phone video footage also does not capture most of the arrest process but shows Ms Cross, now handcuffed, coming out from under the balcony and moving to the police car, escorted by the constables. I consider what it shows is consistent with the constables’ evidence. She appears to be leaning backwards against the direction of travel and at 35 and 36 seconds into the video, she briefly drops her hips, dragging on their arms. They are holding her in a secure way. She is yelling loudly throughout this process.
[67] The Judge noted that the prosecution and defence narratives were entirely at odds, and this was something he needed to resolve. He rejected Ms Cross’s account and preferred that of the prosecution witnesses. This was on the basis of a credibility assessment of Ms Cross and the fact the prosecution witnesses corroborated each other. I do not consider the Judge erred in concluding he preferred the prosecution evidence.
[68] The Judge is not clear, though, as to what exactly satisfied the elements of resisting arrest. At [54], the Judge says it was because, an arrest having occurred, “Ms Cross did not go to [the] police car following that arrest”. This could concern only the escort from the glass wall to the car, or it could encapsulate everything from when Constable Davis advised her she was under arrest. I consider the latter to be more likely given the constables’ evidence and Ms Hewson’s account that Ms Cross was twisting and struggling when being escorted to the glass wall and pulling her hands away and refusing to be handcuffed. It is clear, on this evidence, which is supported by independent witnesses, that the “resisting” element of resisting arrest is made out.21
[69] I am also satisfied the constables were acting in the execution of their duty. Section 39(1) of the Summary Offences Act provides:
Any constable, and all persons whom he calls to his assistance, may arrest and take into custody without a warrant any person whom he has good cause to suspect of having committed an offence against any of the provisions of this Act except sections 17 to 20, 25, and 32 to 38.
[70] Even if I had not upheld the disorderly behaviour conviction, I am satisfied the police had good cause to suspect Ms Cross was offending against s 4 of the Summary Offences Act. They were empowered to arrest her, were acting bona fide in the exercise of powers vested in them,22 and the resistance therefore occurred while they were acting in the execution of their duty.
[71]The appeal against this conviction is dismissed.
Assault on an officer
[72] Ms Cross denied any assault. She said in evidence that she was handcuffed, in heels, and was winded from being pushed into the glass wall. It was physically impossible, she said, for her to have turned and kneed Constable Charles in the groin.
21 Tanu v Police HC Auckland CRI-2009-404-155, 14 February 2011; and Smith v Police (1988) 3 CRNZ 262 (HC) at 266 and 267.
22 The same circumstances came up in Spencer v Police (1989) 5 CRNZ 145 (HC). See also
Cavanagh v Police [2022] NZHC 2174.
She says Constable Davis cannot have noticed a change in Constable Charles’ complexion given his back was to her.
[73] Mr Cross said he had looked away at the relevant moment, so his evidence is of no assistance.
[74] Constable Charles gave evidence that, as Constable Davis was opening the car door, Ms Cross struck her in the left arm, so she turned her body to the left to take anything further on her vest, meaning she was more alongside her. Ms Cross then turned and brought her knee into her groin. She said the pain was immediate but that she acted to secure Ms Cross as she “had to finish my job”. Her lack of apparent discomfort while walking to the other side of the car after allegedly being kicked and before she was seen bending over in apparent pain, was covered extensively in cross-examination, but she maintained she was in pain throughout the period following the assault. She explained the lack of medical evidence of bruising or bleeding as follows: “I did not wish to have photos taken of my vagina by my work colleagues.”
[75] Constable Davis’s evidence was that there was a sudden movement when he went to open the door and that he felt Ms Cross move her body. In his notebook entry, he had recorded that Constable Charles appeared to have been struck in the crotch, and Ms Cross was turned away from him. He says bringing Ms Cross to the ground was in response to this as he suspected a blow and wanted to ensure safety. He gave evidence that Constable Charles appeared to be in pain, was pale, and had tears in her eyes. He did not recall an exclamation of pain.
[76] Ms Edwards gave evidence that she saw something happen as police attempted to get Ms Cross in the car. Both Ms Goodman and Ms Howard said it looked like Ms Cross kicked or kneed Constable Charles. Ms Hewson did not actually see a kick. Ms Layt was unclear on whether she saw Constable Charles struck.
[77] The video taken by Ms Layt is not, as Mr Jackson suggest, determinative as to the lack of a kick. The camera drops away so we cannot see what is happening at two points. At 39 seconds, the parties have reached the car, and Constable Davis moves to lean towards the car door to open it but the camera pans away. This is the
point where Constable Charles say she was kicked. At this stage, Constable Charles is alongside Ms Cross who appears to be leaning backwards and looking over her right shoulder (which is the side Constable Charles is on). The camera pans back up at 43 seconds but, due to the movement, is blurry. At 44 seconds, Constable Davis can be seen turning back towards Ms Cross and Constable Charles. The officers then take her to the ground. A voice comments on camera, “ooh she’s had a go”.
[78] Mr Jackson spends some time examining the later part of the video where it again pans away, but no assault is alleged at that time so his submissions on whether an assault was physically possible at that point are not relevant.
[79] Relevantly, the video then shows Constable Davis moving a bag before Ms Cross is placed in the back seat. Constable Charles moves around the car, opens the opposite door, leans in, and then proceeds to shut it. As she shuts the door she begins to hold her groin and doubles over. Again, I do not accept Mr Jackson’s submission that this demonstrates there can have been no assault when it was alleged. Constable Charles was consistent in saying she had to complete her role at the time and was holding herself together before securing Ms Cross and shutting the car door. She then bends over in pain. At 1:51 of the video, you can hear a woman say, “I think she booted her”.
[80] Given the witness accounts that Ms Cross kicked or appeared to kick the constable, including contemporary commentary in the video from witnesses indicating some sort of assault had happened, and in light of Constable Charles’ evidence and the Judge’s credibility findings as to which he evidence he broadly preferred, I do not consider there has been any error in the assessment of the evidence. The video evidence, while not capturing the actual assault, confirms the general accuracy of the witness testimony as to events before and after the assault. The fact witnesses differed on whether they thought Ms Cross was taken down to the ground by police or did this herself does not undermine the general reliability of their evidence. I also note that Constable Charles’ reaction of obvious pain, albeit several seconds after the kick was said to be administered, supports the kick having occurred. It is implausible she would have reacted this way if it had not occurred.
[81] In summary, I do not consider the Judge erred in his assessment of the evidence on any of the charges such that the convictions should be disturbed.
Sentence appeal
[82] The sentence appeal was not pursued in any detail. Mr Jackson appeared to acknowledge that the sentence was within range on the three convictions. There can be no dispute that a total of 40 hours of community service was the sentence imposed. The Judge expressly commented that this was the minimum he could impose. Mr Jackson primarily takes issue with the appropriateness of the supervision sentence.
[83] Section 20(2) of the Sentencing Act 2002 allows for community work to be combined with supervision only if a sentence of community work is appropriate and the offender requires the imposition of conditions available under supervision to address the causes of their offending.
[84] In sentencing, the Judge expressed concern as to the way the situation had escalated and considered Ms Cross had an anger management issue that needed addressing. He made it a condition of supervision that she attend an assessment for counselling for that issue and then undertake any course recommended. In making this assessment, the Judge was able to draw from hearing from the witnesses, including Ms Cross, in the course of the trial. Mr Jackson has not presented anything to indicate the Judge erred in that conclusion. He simply argues the lack of a problem with drugs or alcohol meant supervision was not appropriate.
[85] Sentences of supervision have rehabilitative aims and, while commonly used in contexts of drug or alcohol abuse, are not limited to those issues. Anger management is, in my view, an issue which supervision can appropriately address.
[86] In Creegan v Police,23 a sentence of supervision was quashed because it was neither necessary nor appropriate for rehabilitative purposes, and the Judge's sentencing remarks suggested that it may have been imposed, not to reduce the
23 Creegan v Police [2015] NZHC 1513.
likelihood of further offending, but as a penalty. There is nothing to suggest Judge Large was applying supervision as a punitive measure in this case.
[87] Finally, Ms Cross’s changed family circumstances do not have a bearing on whether the sentence was appropriate at the time it was imposed. In any event, it is not clear to me why she cannot complete those sentences, despite her changed circumstances.
Conclusion
[88]The appeal against conviction and sentence is dismissed.
Solicitors:
JMJ Lawyers Ltd, Timaru Crown Solicitor, Timaru
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