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

1. 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].

2. 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).

1. Mr Cummings and the complainant were in a relationship at the time of the alleged offending.

2. Both gave evidence at trial about the incident at issue.

3. 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.

4. 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.

5. 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].

6. On appeal to the High Court, Gendall J held the Chief Judge was entitled to accept the complainant’s version of events.  That in turn meant the Chief Judge could not be criticised for failing to address issues of self-defence and defence of property because, on the complainant’s account, those issues did not arise.[7]

The application

[7]HC decision, above n 2, at [29].

1. The grounds of the proposed appeal to this Court are that in circumstances where Mr Cummings’ evidence was not challenged in cross-examination, 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.  Mr Cummings also wishes to argue that, correctly analysed, the respective accounts were not completely at odds and the Judge’s reasons for preferring the evidence of the complainant are unsustainable. 

2. In order to obtain leave, Mr Cummings must satisfy us that the proposed appeal involves a matter of general or public importance or that a miscarriage of justice has occurred or may occur unless the appeal is heard.[8]

   [8]Criminal Procedure Act 2011, s 237(2).

3. As will be readily apparent, the issues raised by Mr Cummings are entirely case-specific.  They do not in our view raise any matter of general or public importance.

4. We do however accept that there is a risk of a possible miscarriage unless the appeal is heard arising from the failure to cross-examine Mr Cummings about the incident in the bedroom.  In particular, our concerns are that a key reason given for believing the complainant was the greater detail in her account and her consistency.  Yet, her detail came from answering questions in cross-examination.  Mr Cummings was not afforded that opportunity, rendering a comparison of their respective detail and consistency problematic and potentially unfair.  We also consider there is an issue whether, in the particular circumstances of this case, a possible inference from the failure to cross-examine was that the prosecutor was unable to identify aspects of Mr Cummings’ account that were implausible or otherwise worthy of testing.  That would in turn mean it may not have been open to find the charge proved beyond reasonable doubt. 

1. The application for leave to appeal is accordingly granted. 

Solicitors:
Mooney Lawyers, Queenstown for Appellant
Crown Law Office, Wellington for Respondent