CUMMINGS v NEW ZEALAND POLICE [2018] NZCA 340

CUMMINGS v NEW ZEALAND POLICE [2018] NZCA 340 [30 August 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA188/2018[2018] NZCA 340BETWEEN JACOB MITCHELL CUMMINGSAppellantAND NEW ZEALAND POLICERespondentCourt: French, Simon France and Moore JJCounsel: L C Preston for AppellantK Peirse-O'Byrne for RespondentJudgment:(On the papers)30 August 2018 at 10 amJUDGMENT OF THE COURTA The application for an extension of time is granted.B The 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 acharge of male assaults female, following a judge alone trial.1 He appealed hisconviction to the High Court. The appeal was dismissed by Gendall J.2 Mr Cummings1 Police v Cummings [2017] NZDC 28414 [DC decision].2 Cummings v Police [2018] NZHC 338 [HC decision].now wishes to appeal to this Court. Because it would be a second appeal, leave isrequired under s 237 of the Criminal Procedure Act 2011.[2] This Court ordered that the application for leave to appeal should bedetermined 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] Mr Cummings and the complainant were in a relationship at the time of thealleged offending.[4] Both gave evidence at trial about the incident at issue.[5] According to the complainant, she found Mr Cummings watching porn on hisphone in their bedroom. When she tried to grab the phone, he restrained her by puttinghis arm around her neck and throat and holding her onto the bed. She tried to get himto 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 triedto take his phone. On this occasion, he attempted to restrain her by holding her armsup against his chest.[6] For his part, Mr Cummings claimed as he had in his police statement, that itwas the complainant who was the aggressor and who did the pushing onto the bed andthe restraining, not him. He also stated the complainant tried to punch him becauseshe was angry about him watching pornography.[7] 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'sevidence that the elements of the charge had been proved.4 The Judge said thecomplainant's account was consistent and coherent and contained a level of detail notfound in the version of events given by Mr Cummings.5 The Judge also stated that3 Cummings v Police CA188/2018, 10 May 2018 (Minute).4 DC decision, above n 1, at [10].5 At [7].the complainant's evidence was consistent with physical injuries sustained byMr Cummings, and less consistent with his account.6[8] On appeal to the High Court, Gendall J held the Chief Judge was entitled toaccept the complainant's version of events. That in turn meant the Chief Judge couldnot be criticised for failing to address issues of self-defence and defence of propertybecause, on the complainant's account, those issues did not arise.7The application[9] The grounds of the proposed appeal to this Court are that in circumstanceswhere Mr Cummings' evidence was not challenged in cross-examination, there was acredible narrative raising the defences of self-defence and defence of property whichthe Judge was required to address and make specific findings on. Mr Cummings alsowishes to argue that, correctly analysed, the respective accounts were not completelyat odds and the Judge's reasons for preferring the evidence of the complainant areunsustainable.[10] In order to obtain leave, Mr Cummings must satisfy us that the proposed appealinvolves a matter of general or public importance or that a miscarriage of justice hasoccurred or may occur unless the appeal is heard.8[11] As will be readily apparent, the issues raised by Mr Cummings are entirelycase-specific. They do not in our view raise any matter of general or publicimportance.[12] We do however accept that there is a risk of a possible miscarriage unless theappeal is heard arising from the failure to cross-examine Mr Cummings about theincident in the bedroom. In particular, our concerns are that a key reason given forbelieving the complainant was the greater detail in her account and her consistency.Yet, her detail came from answering questions in cross-examination. Mr Cummingswas not afforded that opportunity, rendering a comparison of their respective detail6 At [8].7 HC decision, above n 2, at [29].8 Criminal Procedure Act 2011, s 237(2).and consistency problematic and potentially unfair. We also consider there is an issuewhether, in the particular circumstances of this case, a possible inference from thefailure to cross-examine was that the prosecutor was unable to identify aspects ofMr 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 beyondreasonable doubt.[13] The application for leave to appeal is accordingly granted.Solicitors:Mooney Lawyers, Queenstown for AppellantCrown Law Office, Wellington for Respondent