Cummings v Police - [2018] NZCA 622

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA188/2018
[2018] NZCA 622

BETWEEN	JACOB MITCHELL CUMMINGS Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	14 November 2018
Court:	Miller, Dobson and Mander JJ
Counsel:	L C Preston for Appellant P D Marshall for Respondent
Judgment:	20 December 2018 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

This appeal is brought, by leave,[1] from a High Court judgment dismissing Mr Cummings’s appeal from conviction in a judge-alone trial in the District Court at Queenstown.[2]
[1]Cummings v Police [2018] NZCA 340 [Leave judgment].
[2]Police v Cummings [2017] NZDC 28414 [DC judgment]; and Cummings v Police [2018] NZHC 338 [HC judgment].
The charge is male assaults female. The police alleged that Mr Cummings assaulted his then partner by holding her in a headlock after she grabbed his phone as he lay in bed. She was angry. She had found him using it to watch pornography.
The District Court hearing was short. The complainant gave a brief account in her evidence in chief. She was cross-examined at some length, defence counsel seeking to establish that she was the aggressor and Mr Cummings merely restrained her as she bit and scratched him. Mr Cummings had made a statement to the police to that effect, putting in issue defence of self and property (the phone). The statement was put to the complainant in detail. The constable who took it was questioned to confirm the gist of it. Mr Cummings then went into the witness box. He confirmed his statement but did not expand on it. The police prosecutor elected not to cross‑examine him on it.
Chief Judge Doogue gave a brief oral judgment in which she said that there were two distinct accounts.[3] She found the complainant’s account coherent in sequence and peripheral detail, more so than Mr Cummings’s, and found his injuries more consistent with her account than his.[4] Two video clips (of interactions on other occasions) that he introduced did not help his case that she was the aggressor.[5] The Judge did not address self‑defence or defence of property. She found the charge proved beyond reasonable doubt.[6]
[3]DC judgment, above n 2, at [2].
[4]At [7]–[8].
[5]At [8].
[6]At [10].
Gendall J dismissed the appeal that Mr Cummings brought as of right. The substance of his reasoning was that the Judge’s factual findings were open to her and they excluded self-defence and defence of property.[7]
[7]HC judgment, above n 2, at [25]–[28].
Leave for a second appeal was sought on the ground that, because Mr Cummings’s account was not challenged in cross-examination, there was left a credible narrative for defence of self or property that the trial Judge had to address and make specific findings on.[8] This Court did not accept that the appeal raised any question of general or public importance, but it granted leave because there may have been a miscarriage in the…

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 Cummings v Police

Details

AGLC: Cummings v Police [2018] NZCA 622
Case: [2018] NZCA 622
Decision Date: 20 December 2018 at 11.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal from Jacob Mitchell Cummings against the New Zealand Police. Cummings had been convicted in the District Court at Queenstown on a charge of male assaults female. The complainant alleged that Cummings held her in a headlock after she grabbed his phone while he lay in bed, angry that he was watching pornography on it. Cummings appealed the decision, arguing that the District Court judge had not adequately considered his defence of self or property, and that the Crown prosecutor's failure to cross-examine him on his statement constituted a miscarriage of justice. The Court of Appeal dismissed the appeal, finding that the prosecutor was not required to cross-examine Cummings, and that the District Court judge's findings of fact were open to her and excluded the defences of self and property.

The key legal issues in this case were whether the prosecutor was obligated to cross-examine Cummings, and whether the District Court judge's findings of fact were open to her and excluded the defences of self and property. The Court of Appeal found that the prosecutor was not required to cross-examine Cummings, as he had chosen to rest on his police statement and concessions made by the complainant in cross-examination. The Court also found that the District Court judge's findings of fact were open to her and excluded the defences of self and property. The Court concluded that the evidence did not support a finding that Cummings was acting in defence of his property or himself, and that the injuries he sustained were consistent with either account.

The Court of Appeal's reasoning was based on the evidence presented at trial, which showed that the parties substantially agreed on everything except whether Cummings was acting in defence of his property or himself. The Court found that the complainant's account was more specific than Cummings', as she had been tested on whether she tried to hit him and had admitted to embellishing some details. The Court also found that the evidence excluded self-defence at the first part of the incident, and that while the complainant did grab Cummings' phone and he restrained her by holding his arms in a way that prevented her from using them to attack him, it was not reasonably necessary for the physical security of the phone to restrain her on the bed as he did. The Court concluded that the District Court judge's findings of fact were open to her and excluded the defences of self and property, and that no miscarriage of justice had occurred.

The final orders of the Court of Appeal were that the appeal be dismissed. The Court found that the prosecutor was not required to cross-examine Cummings, and that the District Court judge's findings of fact were open to her and excluded the defences of self and property. The Court concluded that the evidence did not support a finding that Cummings was acting in defence of his property or himself, and that the injuries he sustained were consistent with either account. The Court of Appeal therefore dismissed the appeal.

Orders