Cross v Police - [2023] NZHC 2868

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cross v Police

Details

AGLC: Cross v Police [2023] NZHC 2868
Case: [2023] NZHC 2868
Decision Date: 13 October 2023

CaseChat Overview and Summary

In the case of Cross v Police, Jessica May Cross appeals against her conviction and sentence on three charges: disorderly behaviour, resisting arrest, and assaulting a police officer. The District Court found Ms Cross guilty and sentenced her to nine months’ supervision and 40 hours of community work. Ms Cross challenges the sufficiency of the evidence and the appropriateness of the sentence. The High Court considers the appeal on a charge-by-charge basis, assessing whether the evidence was sufficient to support each charge and whether the Judge made any errors in deciding the charges were proved.

On the disorderly behaviour charge, the High Court accepts the District Court’s conclusion that Ms Cross’s behaviour amounted to disorderly conduct. The Court finds the evidence of the police and independent witnesses consistent and credible, while Ms Cross’s evidence is deemed implausible. The Court holds that the disorderly conduct charge was appropriately made out.

Regarding the resisting arrest charge, the High Court agrees with the District Court’s assessment that Ms Cross resisted arrest. The evidence from the police and independent witnesses supports the prosecution’s narrative, and the Court finds no error in the Judge’s credibility assessment.

On the assault charge, the High Court confirms the District Court’s conviction. Although the video evidence does not capture the alleged assault, the witness accounts and Constable Charles’ reaction of pain support the conclusion that Ms Cross assaulted the officer.

As for the sentence appeal, the High Court finds no error in the Judge’s decision to impose a sentence of supervision to address Ms Cross’s anger management issue. The sentence is considered appropriate and within the range of acceptable penalties for the offences committed.

Ultimately, the High Court dismisses the appeal against both conviction and sentence. The appeal against conviction is dismissed as the Court finds no basis to disturb the District Court’s conclusions on the sufficiency of the evidence and the credibility of the witnesses. The sentence appeal is also dismissed, as the High Court finds the sentence appropriate and not manifestly excessive.

Orders