Cummings v Police - [2018] NZHC 338

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2018-425-000005

[2018] NZHC 338

BETWEEN
JACOB MITCHELL CUMMINGS

Appellant

AND

NEW ZEALAND POLICE

Defendant

Hearing: 5 March 2018

Appearances:

L S Collins for Appellant

R W Donnelly for Respondent

Judgment:

7 March 2018

JUDGMENT OF GENDALL

Introduction

[1] On 29 March 2017, in the District Court at Queenstown, Chief Judge Doogue convicted the appellant on one charge of male assaults female. The appellant appeals this conviction on the grounds, first, that the Chief Judge misapplied the test for self- defence under s 48 of the Crimes Act 1961 and, secondly, that she should have specifically considered and applied the test for defence of the appellant’s property (his phone) under s 53 and, thirdly, that the evidence should have left her with reasonable doubt as to whether the physical contact was not justified in all the circumstances.

Facts

[2] The appellant and complainant were in a relationship in October 2016 at the time of the alleged offending, but have since separated.

CUMMINGS v NZ POLICE [2018] NZHC 338 [7 March 2018]

[3] As described by the Chief Judge addressing the events in question, there are “two distinct accounts of what occurred on 25 October 2016”.

[4] On the complainant’s account, she had got up early one morning and started making breakfast, when she returned to the bedroom where she and the appellant had been sleeping. She found the appellant watching pornography on his phone. 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 conceded that it was not painful but it did restrict and control her movement and she objected to it. In response, she bit him and dug her nails into his arm in an attempt to get him to withdraw the stranglehold. Finally, he released the complainant and she left the room. Subsequently she returned and made another attempt to take the appellant’s phone. On this occasion she says he held her arms up against her chest in an attempt to restrain her again.

[5] On the appellant’s account, as presented by his counsel during cross- examination of the complainant, it was the complainant who was the aggressor, not he. Counsel put it to the complainant that she restrained him on the bed, not the other way around, and that she attempted to punch the appellant because she was angry about him watching pornography. The appellant effectively confirmed this account when he gave his evidence.

[6] The appellant’s injuries, namely scratches and bite marks on his arms, were photographed by Police. The complainant did not sustain injuries.

[7] After the alleged offending, the appellant attended one session of domestic violence counselling. In his affidavit in support of a discharge without conviction, the appellant says the service did not recommend further sessions. He tried to attend more sessions in the weeks before his sentencing in December 2017,…

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.

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Details

Case: [2018] NZHC 338
Decision Date: 7 March 2018

CaseChat Overview and Summary

In the High Court of New Zealand, the appellant Jacob Mitchell Cummings challenged the conviction rendered by Chief Judge Doogue in the District Court at Queenstown on one charge of male assaults female. The appeal rested on the grounds that the Chief Judge misapplied the test for self-defence under s 48 of the Crimes Act 1961, failed to consider the defence of the appellant's property under s 53, and should have had reasonable doubt as to whether the physical contact was unjustified. The central issue was whether the Chief Judge erred in her assessment of the evidence, leading to a miscarriage of justice.

The court examined whether the Chief Judge's decision to accept the complainant's version of events constituted a miscarriage of justice. The complainant alleged that the appellant restrained her by placing his arm around her neck and throat, while the appellant claimed that the complainant was the aggressor. The Chief Judge found the complainant's account more credible due to its consistency and level of detail. The court noted that the Chief Judge had the opportunity to observe the witnesses and their credibility was a pivotal aspect of the case.

The court concluded that the Chief Judge did not err in her assessment of the evidence. There was no miscarriage of justice because the Chief Judge's decision was well-reasoned and supported by the evidence. The court held that the Chief Judge's acceptance of the complainant's version of events was justified, and therefore, the appeal was dismissed.

Orders