Cross v The King
[2024] NZCA 227
•14 June 2024 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA660/2023 [2024] NZCA 227 |
| BETWEEN | JESSICA MAY CROSS |
| AND | THE KING |
| Court: | Ellis, Gault and Cull JJ |
Counsel: | T J Jackson for Appellant |
Judgment: | 14 June 2024 at 10 am |
JUDGMENT OF THE COURT
The application for leave to bring a second appeal against conviction is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Ellis J)
Following a Judge-alone trial before Judge Large in the Timaru District Court, Ms Cross was convicted on one charge of disorderly behaviour, one charge of resisting a police officer and one charge of assaulting a police officer.[1] On the charges of resisting and assaulting a police officer, Judge Large sentenced her to nine months’ supervision (whereby she was to undertake an assessment for anger management counselling and complete any course recommended) and 40 hours’ community work.[2] She was convicted and discharged on the disorderly behaviour charge.
[1]Police v Cross [2022] NZDC 20613 [oral judgment].
[2]Police v Cross [2022] NZDC 20610 [sentencing notes].
Ms Cross’s appeal against conviction and sentence to the High Court was unsuccessful.[3] She now seeks leave to bring a second (conviction only) appeal to this Court. The grant of leave is opposed by the Crown.
[3]Cross v Police [2023] NZHC 2868.
On 22 November 2023, it was directed that the application for leave be determined separately from the appeal, and on the papers.
Relevant facts
The factual basis of Ms Cross’s convictions was summarised by Dunningham J in the High Court as follows:[4]
[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, “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.
First appeal in the High Court
[4]Dunningham J noted that these facts continued to be disputed on appeal.
Given Dunningham J’s own thorough review of the evidence, and her detailed reasoning, it is unnecessary for present purposes to set out Judge Large’s decision in any detail. So we merely record that, in the District Court:
(a)the prosecution evidence comprised the evidence of five staff members at The Warehouse, the two police constables involved, an independent witness in the carpark, video evidence taken from upstairs in The Warehouse staff breakroom, and CCTV footage from inside the store;
(b)the defence witnesses were Ms Cross and her father (who arrived at the scene while Ms Cross was still in the store lobby); and
(c)Judge Large found Ms Cross’s evidence to be “entirely unconvincing and unworthy of belief”, “implausible”, and “not consistent” with her earlier behaviour in the store.[5]
[5]Oral judgment, above n 1, at [41].
In the context of the disorderly conduct conviction, Dunningham J observed that the CCTV footage was not of much assistance because Ms Cross was out of frame for much of the relevant time, and there was no sound recording.[6] She noted that some of the eyewitnesses specifically said Ms Cross’s behaviour deteriorated badly outside the store, after police had arrived.[7] But there was also unchallenged eyewitness evidence describing aggressive behaviour and language in the store and before her arrest. She said:
[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.
[6]Cross v Police, above n 3, at [50]. The Judge nonetheless noted that the CCTV footage did show other customers staring in the direction of the altercation when they entered the store.
[7]At [45]–[49].
After reviewing the relevant authorities and legal principles (which she noted had not squarely been a feature of the District Court decision),[8] Dunningham J made the following points:[9]
(a)the relevant circumstances here included Ms Cross’s repeated and loud use of expletive-laden abuse in a relatively busy store with people (including children) coming and going from the area Ms Cross was located;
(b)the CCTV footage showed several people stopping and taking notice of what was going on;
(c)nonetheless, the behaviour was not particularly protracted and the most egregious conduct occurred as she left the store and when she was outside;
(d)the primary target of the abuse was police, although two witnesses said the abuse was more generally directed;
(e)the fact that Ms Cross’s conduct took place in a busy public area distinguished it from the conduct at issue in Aue v Police, which involved shouting and swearing at police on private property in a residential neighbourhood and had provoked curiosity in, rather than discomfiture to, those who were present;[10] and
(f)here, there was evidence that Ms Cross’s behaviour was genuinely disturbing to members of the public — one witness had said she had never seen anything like it in her 20 years as a store security officer.
[8]At [52].
[9]At [54]–[57].
[10]Aue v Police [2013] NZHC 637, [2013] NZAR 471.
Although the Judge regarded the matter as finely balanced, she was ultimately satisfied Ms Cross’s behaviour amounted to disorderly conduct.[11]
[11]Cross v Police, above n 3, at [58].
As to the resisting arrest charge, Dunningham J noted it was not clear from the Judge’s reasoning how he had found the elements of this offence satisfied.[12] But after considering the evidence herself, including evidence from an independent witness that police were unable to handcuff Ms Cross because she was “throwing her arms about”, she considered the charge was clearly made out.[13] She was also satisfied the constables were acting in execution of their duty.[14]
[12]At [68].
[13]At [63].
[14]At [69].
And as to the assault charge, Dunningham J held:
[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 evidence he broadly preferred, I do not consider there has been any error in the assessment of the evidence.
Dunningham J dismissed the conviction appeal accordingly.
The proposed second appeal
Relevant principles
Section 237(2) of the Criminal Procedure Act 2011 provides that leave must not be granted for a second conviction appeal unless the Court is satisfied the proposed appeal involves a matter of general or public importance, or a miscarriage of justice may have occurred, or may occur, unless the appeal is heard.
Grounds relied on
Ms Cross accepts her proposed appeal does not raise a matter of general or public importance. She relies instead on the second limb of s 237(2). She says a miscarriage will occur if the appeal is not heard because, properly assessed, the evidence did not constitute proof beyond reasonable doubt of any of the three charges. More specifically, she says:
(a)the evidence shows she did not act in a disorderly manner until she was arrested;
(b)because there was no disorderly conduct before her arrest, the police were not acting in execution of their duty when she was arrested so the resisting arrest charge falls away;[15] and
(c)in relation to the assault charge, it was physically impossible for her to have kicked the police officer in the brief period where the events were not captured by CCTV and this should have been considered in determining whether there was a sufficient evidential basis for the charge.
Discussion
[15]This does not seem to have been an argument advanced in the District Court: at [57] of the oral judgment, above n 1, Judge Large recorded that “[t]here is no suggestion that Constable Charles or Constable Davis were not acting in the execution of their duty” at the time either of the arrest or the assault.
It is plain the proposed appeal seeks directly to re-litigate factual findings made in the Courts below. It is trite that the application of settled law to established facts does not require consideration by a third court. Leave will generally be declined where the application raises issues in the nature of factual assessments that are specific to the circumstances of the case.[16]
[16]See for example R (CA176/2016) v Police [2016] NZCA 403 at [26]; and Butler v Police [2016] NZCA 27 at [3].
More specifically, and in terms of the disorderly conduct charge, the District Court Judge made a finding that:
[20] The language used and behaviour of Ms Cross was what caused Constable Davis and Constable Charles to go back to the carpark to arrest Ms Cross for disorderly behaviour.
Similarly, and after a thorough review of both the law and the evidence, the High Court Judge concluded that the disorderly conduct began inside the store. No error is apparent in the High Court Judge’s careful reasoning and the high threshold for a grant of leave to bring a second appeal is not met.
The conclusion that there is no basis upon which to disturb the concurrent findings of fact on the disorderly conduct charge also disposes of the appeal in relation to the resisting arrest charge, which is predicated on the proposition that there was no disorderly conduct until after the arrest. There are concurrent findings of fact demonstrating that was not so.
The evidence relating to the assault charge was primarily that of Constable Charles herself, who said that while police were trying to get Ms Cross into the police car, Ms Cross struck Constable Charles on the arm with her elbow before kneeing her in the groin, causing her great pain. Constable Davis had recorded in his notebook that it appeared his colleague had been struck in the crotch and that she appeared to be in pain, was pale and had tears in her eyes. Two independent witnesses also said it looked like Ms Cross had kneed or kicked Constable Charles. While a video taken by another witness does not show the delivery of a blow, it recorded a voice saying “ooh she’s had a go” at the relevant time and also shows Constable Charles holding her groin and doubling over after she shut the police car door.
The short point is that there was ample evidence upon which to conclude that the assault had occurred, and the Judges below were entitled to prefer it to Ms Cross’s account, which was predicated on the proposition that it was not physically possible for her to have done what was alleged.
It is our clear view that there is no discernible risk of a miscarriage of justice if the proposed appeal is not heard. As noted, Ms Cross simply wishes to relitigate the same arguments already advanced in the courts below. Two Courts have already scrutinised the evidence and reached the same conclusions about the strength and sufficiency of the evidence adduced. There is no basis for requiring a third court to reconsider it. It is not the purpose of a second appeal simply to re-litigate disputed facts.
Conclusion
The application for leave to bring a second appeal against conviction is declined.
Solicitors:
JMJ Lawyers Limited, Timaru for Appellant
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent
0
3
0