Cummings v Police - [2018] NZCA 340

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA188/2018
[2018] NZCA 340

BETWEEN	JACOB MITCHELL CUMMINGS Appellant
AND	NEW ZEALAND POLICE Respondent

Court:	French, Simon France and Moore JJ
Counsel:	L C Preston for Appellant K Peirse-O’Byrne for Respondent
Judgment: (On the papers)	30 August 2018 at 10 am

JUDGMENT OF THE COURT

AThe application for an extension of time is granted.
BThe application for leave to appeal is granted.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

Mr Cummings was convicted by Chief District Court Judge Doogue on a charge of male assaults female, following a judge alone trial.[1] He appealed his conviction to the High Court. The appeal was dismissed by Gendall J.[2] Mr Cummings now wishes to appeal to this Court. Because it would be a second appeal, leave is required under s 237 of the Criminal Procedure Act 2011.
[1]Police v Cummings [2017] NZDC 28414 [DC decision].
[2]Cummings v Police [2018] NZHC 338 [HC decision].
This Court ordered that the application for leave to appeal should be determined on the papers.[3] The application for leave to appeal was filed out of time. The respondent does not, however, object to an extension and it is accordingly granted.

Background

[3]Cummings v Police CA188/2018, 10 May 2018 (Minute).

Mr Cummings and the complainant were in a relationship at the time of the alleged offending.
Both gave evidence at trial about the incident at issue.
According to the complainant, she found Mr Cummings watching porn on his phone in their bedroom. When she tried to grab the phone, he restrained her by putting his arm around her neck and throat and holding her onto the bed. She tried to get him to withdraw his stranglehold by biting him and digging her nails into his arm. He eventually released her and she left the room. Later, she returned and again tried to take his phone. On this occasion, he attempted to restrain her by holding her arms up against his chest.
For his part, Mr Cummings claimed as he had in his police statement, that it was the complainant who was the aggressor and who did the pushing onto the bed and the restraining, not him. He also stated the complainant tried to punch him because she was angry about him watching pornography.
In her decision, the Chief Judge — preferring the evidence of the complainant — said she was satisfied beyond reasonable doubt on the basis of the complainant’s evidence that the elements of the charge had been proved.[4] The Judge said the complainant’s account was consistent and coherent and contained a level of detail not found in the version of events given by Mr Cummings.[5] The Judge also stated that the complainant’s evidence was consistent with physical injuries sustained by Mr Cummings, and less consistent with his account.[6]
[4]DC decision, above n 1, at [10].
[5]At [7].
[6]At [8].
On appeal to the High Court, Gendall J held…

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 340
Case: [2018] NZCA 340
Decision Date: 30 August 2018 at 10 am

CaseChat Overview and Summary

In Cummings v Police, the appellant, Jacob Mitchell Cummings, sought leave to appeal his conviction of male assaults female to the Court of Appeal of New Zealand. The appeal arose from a case where the appellant was convicted by Chief District Court Judge Doogue, following a judge alone trial. The conviction was upheld on appeal to the High Court, and the appellant now seeks to appeal to the Court of Appeal. The central issue for the Court of Appeal was whether leave to appeal should be granted, given that it was a second appeal and therefore required under s 237 of the Criminal Procedure Act 2011. The appellant argued that there was a credible narrative raising the defences of self-defence and defence of property, which the Judge was required to address and make specific findings on, particularly in light of the failure to cross-examine the appellant about the incident. The Court of Appeal considered the issues to be entirely case-specific and not of general or public importance. However, they found that there was a risk of a possible miscarriage of justice unless the appeal was heard due to the failure to cross-examine the appellant. The Court was concerned that a key reason given for believing the complainant's account was the greater detail in her account and her consistency, yet this detail came from answering questions in cross-examination, which the appellant was not afforded. The Court also considered whether the failure to cross-examine might mean it was not open to find the charge proved beyond reasonable doubt. As a result, the Court granted the application for leave to appeal.

Orders