Cummings v Police
[2018] NZHC 338
•7 March 2018
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, but the service informed him it could not provide any information for the court because he had not engaged with counselling on a regular basis.
District Court decision
[8] At trial, the Chief Judge set out the two competing narratives of the events. Her Honour recognised that this case hinges on credibility. As to this, she stated: “the
Court has to be satisfied beyond reasonable doubt that it is the complainant who is telling the truth on this occasion and not the defendant”.
[9] The Chief Judge found the complainant’s account of the events convincing. She said she saw it as consistent and coherent, with a level of detail not found in the appellant’s version of events. Her Honour also found the complainant’s account more consistent with the physical injuries sustained by the appellant. Her Honour dismissed the appellant’s argument that the complainant was the aggressor in the relationship. The videos adduced by the appellant to demonstrate this, of the complainant grabbing the appellant’s phone at work, were “far from” conclusive. Her Honour also mentioned that the fact the complainant continued to initiate contact with the appellant after the events in question did not affect the complainant’s veracity. Without citing specific examples, her Honour referred to “ample research” that the fact that those who have been abused continue to have contact with their abusers is not inconsistent with the abuse having occurred. The Chief Judge accordingly convicted the appellant.
[10] On 20 December 2017, the appellant was sentenced to a $500 fine and $500 reparation. He had applied for a discharge without conviction but this was rejected.
Principles on appeal
[11] Section 232 of the Criminal Procedure Act 2011 provides that the Court may only allow an appeal against conviction if satisfied that the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.” A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.1
[12] Section 232 makes clear that not every error or irregularity causes a miscarriage of justice. Instead there must be a “real risk” that the outcome was affected. R v Sungsuwan defines a “real risk” as “a reasonable possibility that a not
1 Section 232(4).
guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.2
[13] R v Condon held that a mere departure from good practice does not render a trial unfair.3 Instead the errors or irregularities must depart from good practice in a manner “so gross, or so persistent, or so prejudicial, or so irremediable” that the court must quash the decision.4
[14] This appeal proceeds by way of rehearing. This Court on appeal must examine the Judge’s reasoning carefully and come to its own decision on the facts.5 However, it is generally only in exceptional circumstances that a court on appeal will interfere with the trial Judge’s findings of fact.6 Where a question of credibility is the central focus of the appeal, and the lower court has had the opportunity to listen to the witnesses, some deference to that court’s judgment may be appropriate.
Submissions
Appellant’s submissions
[15] As I have noted above, the appellant appeals his conviction effectively on three grounds: first, that the Chief Judge misapplied the test in relation to self-defence governed by s 48 of the Crimes Act 1961; secondly, that she did not consider and apply the test for defence of the appellant’s property under s 53 of the Crimes Act 1961; and thirdly, that the evidence presented at trial should have left the Chief Judge with a reasonable doubt as to whether any intentional contact by the appellant on the complainant was unjustified in those circumstances.
[16]In particular, the appellant submits that:
2 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110] per Tipping J.
3 Condon v R [2006] NZSC at [78].
4 Randall v R [2002] 1 WLR 2237 (PC) at [28] per Lord Bingham, cited with approval by the Supreme Court in Condon v R at [78].
5 R v Slavich [2009] NZCA 188; Austin, Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
6 Rae v Police HC Hamilton CRI-2006-419-162 at [38].
(a)the prosecution was not relying on evidence other than from the complainant;
(b)there was no evidence to support the Chief Judge’s comment that a complainant may continue to have contact with a person who has assaulted them;
(c)the Chief Judge failed to give reasons for her finding that the appellant’s injuries were more consistent with the complainant’s version of events;
(d)the prosecution did not challenge the appellant’s account of how the injuries were caused; and
(e)the Chief Judge in effect reversed the onus of proof in not finding the videos compelling evidence that the complainant was the aggressor in the relationship.
[17] The respondent characterises these submissions, in my opinion correctly, as questioning whether it was open to the Chief Judge to accept the complainant’s account of events.
Respondent’s submissions
[18] The respondent submits that it was open to the Chief Judge to accept the complainant’s version of events.
[19] On the complainant’s account, the respondent contends that self-defence or reasonable force to defend the appellant’s property would not be possible arguments open to the appellant here. The complainant says she was trying to grab the appellant’s phone, not attack him, when he put her in a stranglehold. It is unlikely that would be seen as a reasonable response to the circumstances.
[20] The respondent maintains that the correct test under s 232 of the Criminal Procedure Act is whether a miscarriage of justice occurred. However, the respondent goes on to consider whether the Chief Judge’s assessment of the facts was
“unreasonable”, which is the test for an appeal from a jury trial.7 The respondent also cites R v Owen,8 which is an appeal from a jury trial. These submissions, although of some merit, are not entirely on point.
[21] The respondent submits that judges are entitled to take judicial notice of matters which are accepted in society generally, which includes family violence dynamics.9 As such, the Chief Judge did not need to provide evidence to support the finding that a complainant may continue to contact an abusive partner.
[22] The Chief Judge did not give specific reasons why she found the appellant’s injuries to be more consistent with the complainant’s version of events, but the respondent submits, nevertheless, this was apparent from the evidence. The complainant, to her credit, provided details about the scratches and bite marks she had inflicted on the appellant. The appellant did not, however. The respondent submits that the appellant’s version of events, where he said the complainant was swinging punches at him, does not explain the bite marks on him. Even though the Chief Judge did not express this specifically, it is a logical inference from her reasoning.
[23] The respondent goes on to suggest that even if the prosecution may not have directly challenged the appellant on his account of how the injuries were sustained, it is said there was no unfairness in cross-examination. The appellant had heard the prosecution case and could respond to it. There was thus no unfairness and no miscarriage of justice.
[24] Finally, the respondent contends that the Chief Judge did not reverse the onus of proof in not accepting the videos as evidence that the complainant was the aggressor in the relationship. Rather, read in context, the Chief Judge was explaining that she had found the complainant’s evidence to be believable, and the existence of the videos did not alter that finding.
7 Criminal Procedure Act, s 232(2)(a).
8 R v Owen [2007] NZSC 102, [2008] 2 NZLR 37.
9 See, for example, J V v R [2017] NZHC 262 at [22]; Noble v Police [2014] NZHC 562 at [22]; and Turnbull v Police [2016] NZHC 2159 at [24].
Analysis
Self-defence and defence of the defendant’s property
[25] The appellant submits that the Chief Judge misapplied ss 48 and 53, the self- defence and defence of your own property provisions. In fact, the Chief Judge did not mention ss 48 or 53. Assuming the appellant submitted at trial that at the relevant time he was simply defending himself or his property, the Chief Judge must not have considered these as available arguments. If, however, the Chief Judge accepted the complainant’s account, which she did, self-defence was not open to the appellant. Before me, counsel for the respondent suggests: “Pulling a person toward you, who is attempting to get away, and holding that person down is not an act of self-defence”. I agree. And, on the complainant’s evidence, which the Chief Judge accepted, holding the complainant down forcibly was not a reasonable act of force to defend the defendant’s phone pursuant to s 53.
[26] As the Chief Judge did not accept the appellant’s version of events, it was unnecessary for her to consider whether these matters were available to the appellant as defences. On an appeal against conviction however, the appellate court should in effect analyse the facts anew. The question then becomes whether the Chief Judge “erred in… her assessment of the evidence to such an extent that a miscarriage of justice has occurred” or whether a miscarriage of justice has occurred for any other reason.10
Did a miscarriage of justice result from the Chief Justice accepting the complainant’s version of events?
[27] I am satisfied in all the circumstances of this case that a miscarriage of justice did not arise from the Chief Judge accepting one version of events over another. It can sometimes be difficult to explain why one person appears more credible than another, but the Chief Judge did so here with reference to the complainant’s account being more consistent with the injuries sustained by the appellant and, by contrast the level of detail of events the complainant gave. The Chief Judge also recognised the
10 Criminal Procedure Act, s 232(2)(b) and (c).
arguments put forward by the appellant, and explained why she did not find them to be conclusive.
[28] On an appeal against conviction, the appellate court is required to consider the case anew. However, this case hinges almost entirely on credibility, and the Chief Judge had the benefit of seeing both parties give evidence and be cross-examined. I am hesitant to depart from her conclusions when there is nothing specifically on the evidence that might even suggest that the appellant’s version of events here is more convincing.
Conclusion
[29] The Chief Judge made clear credibility findings and on this basis she was justified in accepting the complainant’s version of events over the appellant’s. In doing so, the appellant’s arguments of self-defence and also defence of his property were no longer available. The Chief Judge did not need to analyse the application of ss 48 and 53 if the appellant could not be successful on those points. The force used by the defendant here against the complaint by implication at the very least could not be seen as reasonable. No miscarriage of justice has occurred.
[30]For these reasons, this appeal is dismissed.
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Gendall J
Solicitors:
Liam Collins, Barrister, Queenstown Preston Russell Law, Christchurch
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