JACOB MITCHELL CUMMINGS v NEW ZEALAND POLICE [2018] NZCA 622

JACOB MITCHELL CUMMINGS v NEW ZEALAND POLICE [2018] NZCA 622 [20 December 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA188/2018[2018] NZCA 622BETWEEN JACOB MITCHELL CUMMINGSAppellantAND NEW ZEALAND POLICERespondentHearing: 14 November 2018Court: Miller, Dobson and Mander JJCounsel: L C Preston for AppellantP D Marshall for RespondentJudgment: 20 December 2018 at 11.30 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] This appeal is brought, by leave,1 from a High Court judgment dismissingMr Cummings's appeal from conviction in a judge-alone trial in the District Courtat Queenstown.21 Cummings v Police [2018] NZCA 340 [Leave judgment].2 Police v Cummings [2017] NZDC 28414 [DC judgment]; and Cummings v Police [2018] NZHC338 [HC judgment].[2] The charge is male assaults female. The police alleged that Mr Cummingsassaulted his then partner by holding her in a headlock after she grabbed his phone ashe lay in bed. She was angry. She had found him using it to watch pornography.[3] The District Court hearing was short. The complainant gave a brief account inher evidence in chief. She was cross-examined at some length, defence counselseeking to establish that she was the aggressor and Mr Cummings merely restrainedher as she bit and scratched him. Mr Cummings had made a statement to the police tothat effect, putting in issue defence of self and property (the phone). The statementwas put to the complainant in detail. The constable who took it was questioned toconfirm the gist of it. Mr Cummings then went into the witness box. He confirmedhis statement but did not expand on it. The police prosecutor elected not tocross-examine him on it.[4] Chief Judge Doogue gave a brief oral judgment in which she said that therewere two distinct accounts.3 She found the complainant's account coherent insequence and peripheral detail, more so than Mr Cummings's, and found his injuriesmore consistent with her account than his.4 Two video clips (of interactions on otheroccasions) that he introduced did not help his case that she was the aggressor.5 TheJudge did not address self-defence or defence of property. She found the chargeproved beyond reasonable doubt.6[5] Gendall J dismissed the appeal that Mr Cummings brought as of right.The substance of his reasoning was that the Judge's factual findings were open to herand they excluded self-defence and defence of property.7[6] Leave for a second appeal was sought on the ground that, becauseMr Cummings's account was not challenged in cross-examination, there was left acredible narrative for defence of self or property that the trial Judge had to address andmake specific findings on.8 This Court did not accept that the appeal raised any3 DC judgment, above n 2, at [2].4 At [7]–[8].5 At [8].6 At [10].7 HC judgment, above n 2, at [25]–[28].8 Leave judgment, above n 1, at [9].question of general or public importance, but it granted leave because there may havebeen a miscarriage in the circumstances:[12] We do however accept that there is a risk of a possible miscarriageunless the appeal is heard arising from the failure to cross-examineMr Cummings about the incident in the bedroom. In particular, our concernsare that a key reason given for believing the complainant was the greater detailin her account and her consistency. Yet, her detail came from answeringquestions in cross-examination. Mr Cummings was not afforded thatopportunity, rendering a comparison of their respective detail and consistencyproblematic and potentially unfair. We also consider there is an issue whether,in the particular circumstances of this case, a possible inference from thefailure to cross-examine was that the prosecutor was unable to identify aspectsof Mr Cummings' account that were implausible or otherwise worthy oftesting. That would in turn mean it may not have been open to find the chargeproved beyond reasonable doubt.The appeal[7] Ms Preston, who was not trial counsel, advanced a skilled and determinedargument for Mr Cummings that began with the proposition that where defence of selfor property is raised on the evidence the prosecution must exclude it beyondreasonable doubt. Mr Cummings's account did raise these defences. It wentunchallenged. There are cases in which cross-examination is unnecessary because theprosecution case is clear and the defence is a bare denial, but this was not one of them;here, the protagonists agreed on much of the detail and the complainant's accountalone was insufficient to reject Mr Cummings's account. It was not a she-said, he-saidcase. The issue was why Mr Cummings restrained her in a headlock. Mr Cummingshaving entered the witness box, only through cross-examination could the Judge besatisfied beyond reasonable doubt that he was not acting in defence. She preferredthe complainant's account without apparently recognising that it left the defence open.[8] Mr Marshall went straight to the vulnerable points in this argument. He arguedthat the prosecutor was under no duty to cross-examine, for Mr Cummings chose notto give oral evidence about the events and the prosecutor's duty did not extend togiving him an opportunity to repeat his statement and enhance his credibility. Thatbeing so, the Judge's view of the facts was open to her. Her reasons were adequate tothe occasion; she found Mr Cummings was the aggressor, and that finding excludeddefence of self or property.[9] We have not found the case easy.The evidence[10] In her evidence-in-chief the complainant's account was that she walked intothe bedroom, saw what Mr Cummings was doing, and went to grab his phone. Hepulled her back by the neck and held her down. She tried to get away, having thrownthe phone onto the floor, and he again pulled her back and restrained her. She bit andscratched him in an attempt to get away. He did not cause her pain. She complainedto the police because he did not take her seriously.[11] In cross-examination, she accepted that the incident had two parts. In the firstpart, she grabbed the phone, he restrained her in a headlock on the bed as she went towalk away with it and she threw the phone across the room. Mr Cummings's accountwas put to her. It was that he restrained her when she grabbed the phone but releasedher to pick the phone up. She then pushed him onto the bed and tried to punch him,so he restrained her again. She denied trying to hit him but accepted he had seized herwhen she grabbed his phone to see what he was looking at. She accepted that she wasrestrained twice, and though in evidence-in-chief she had claimed she had been unableto breathe she admitted in cross-examination that was untrue.[12] In the second part, the complainant left the room when he released her, but shereturned and sat on the side of the bed. He tried to hug her. She again tried to grabthe phone. His account was that she tried to punch him and he restrained her byholding her wrists. She denied trying to hit him, but she accepted that he turned heraround so he was standing behind her and held her arms. While in that position shescratched and bit his arms and tried to headbutt him.[13] Mr Cummings's statement was in evidence. The relevant part is quite brief,less detailed than the account put to her in cross-examination. He said that shesnatched the phone from him and it fell to the ground, he went to get it and she pushedhim back onto the bed. As she did so he pulled her with him. He then grabbed hisphone off the ground and she left the room. She returned, sat on the bed and againsnatched the phone from his hand. He stood up, she pushed him in the face and threwthe phone, he grabbed her and she landed on top of him. He then restrained her as shescratched and headbutted him and tried to punch him. As noted, he was called toconfirm the statement. He described his injuries. When asked by his counsel, he saidhe did not wish to add to or change the statement.[14] It will be seen that the parties agreed the complainant twice grabbed or tried tograb the phone in an angry state and he restrained and released her three times, notattempting to hurt her. They disagreed centrally over whether she pushed him ontothe bed and tried to hit him. On her account, he had no need to restrain her, becauseshe was not attacking him and she was either just looking at his phone or no longerholding it.The Judge's reasons[15] Chief Judge Doogue gave an oral judgment. She summarised thecomplainant's evidence:9[3] The complainant gave evidence that she had got up early and hadstarted making breakfast when she returned to the bedroom in which she andthe defendant had both been sleeping the previous night. When she walkedinto the room she observed him watching pornography on his telephone.Her evidence was that she tried to grab the phone and that as she did so he puthis arm around her neck, holding her onto the bed. She conceded that it wasnot painful but that it was restraining and that she was objecting to exertion ofcontrol by him of her. With his arm around her neck, restraining her on thebed she said she tried to bite him and did in fact bite him to attempt to get himto withdraw the stranglehold. She also said that she dug his nails into his arm.The restraint was around her throat and voice box area.[4] She left the room and returned subsequently and made another attemptto remove the defendant's phone from him and on this occasion she says thathe held her arms up against her chest in an attempt to restrain her again.[16] She summarised the defence case:[5] In a lengthy and comprehensive cross-examination the defendant'scounsel put an entirely different version of events to her, the critical elementsbeing that it was she who was the aggressor in attempting to pushthe defendant onto the bed and restraining him on the bed. Secondly, that shewas the aggressor in attempting to swing and punch at the defendant and thatshe did this because she was angry about his viewing pornography.[6] The defendant simply in his evidence affirmed the statement that hegave to Sergeant Matheson on the day in question and it was a very simple9 DC judgment, above n 2.repetition by him of the version of events that had been put to the complainantcomprehensively. [17] The Judge found the complainant a credible witness, finding her account morecoherent and detailed than his:[7] The fact that the complainant was distressed and disturbed by therelationship for a variety of reasons has not in my view coloured her accountto the extent that she has actively misled the Court. There is no doubt that sheis highly emotional but her account was consistent, repeatedly so under thecross-examination, it contained a coherency of sequence and peripheral detail.By contrast, the defendant's account did not contain the same coherent,sequential elements nor peripheral detail.She added that the injuries to Mr Cummings were entirely consistent withthe complainant's account and less consistent with that of Mr Cummings.10Must the prosecutor cross-examine the defendant in the circumstances?[18] The duty to cross-examine has been codified in s 92(1) of the Evidence Act2006, which provides that:92 Cross-examination duties(1) In any proceeding, a party must cross-examine a witness onsignificant matters that are relevant and in issue and that contradictthe evidence of the witness, if the witness could reasonably beexpected to be in a position to give admissible evidence on thosematters.If the duty is not complied with a court may (relevantly) reduce the weight attached toan account contradicting that of the witness.11[19] The authorities establish that the rule is one of fairness. As such, its contentvaries with the circumstances. Speaking generally, a witness who has been givenreasonable notice of a contradictory account should take the opportunity to respond toit in evidence-in-chief. If the witness fails to do so, then opposing counsel ordinarily10 At [8].11 Evidence Act 2006, s 92(2)(b).need not cross-examine, for the duty does not extend to offering the witness anopportunity to establish his or her credibility.12[20] In this case Mr Cummings does not complain that he was not on notice ofthe complainant's account. Through counsel he chose to rest on his police statementand such concessions as the complainant had made in cross-examination.We emphasise that we make no criticism of trial counsel for this conservative strategy,which may well have been adopted for good reason. We are satisfied, however, thatin the circumstances the prosecutor need not cross-examine and the Judge need notdiscount the complainant's account for want of cross-examination of the defendant.Were the Judge's findings of fact open to her, and do they exclude the defence?[21] Ms Preston argued that the District Court hearing miscarried because of thefailure to cross-examine, but she went further and argued that the reasons given forpreferring the complainant's account were unsustainable when assessed against thetrial record. The Judge was wrong to find that there were two distinct accounts ofwhat happened; rather, the parties substantially agreed on everything except whetherMr Cummings was acting in defence of his property (in the first part of the incident)or himself (in the second part). Nor is it correct that her account was more coherentthan his. It was only in cross-examination that much of her account emerged. Shewas not a credible witness; she had to admit to embellishing some details. The injurieshe sustained are consistent with either account, and the complainant admitted theywere inflicted while he was holding her arms from behind her.[22] We note that the appellate standard is whether the Judge erred to such an extentthat a miscarriage of justice occurred.13 The appellant must point to a real risk of amiscarriage.14 We add that this was a short hearing of about one hour, with oral reasonsfor verdict given immediately, and some allowance must be made for that whenexamining the Judge's brief reasons.12 Hewinson v Police (1987) 3 CRNZ 27 (HC) at 32–33; R v Accused CA273/91, 20 December1991 at 8; Gutierrez v R [1997] 1 NZLR 192 (CA) at 199; and Soutar v R [2009] NZCA 227 at[29].13 Criminal Procedure Act 2011, ss 232(2)(b) and 240(2).14 Gotty v R [2017] NZCA 528 at [14].[23] If we were concerned with the second part of the incident only, we would allowthe appeal. Although she did not accept that she tried to punch Mr Cummings,the complainant did grab his phone and she accepted that he restrained her by holdinghis arms in a way that prevented her from using them to attack him. While he wasdoing so she bit and scratched him. In the circumstances, this would suffice to leavereasonable doubt about whether he was defending himself. We accept Ms Preston'ssubmission that the injuries he suffered are consistent with either account.[24] We take a different view of the first part of the incident. The complainant wasclear that she did not try to hit Mr Cummings. She was tested on this, and we do notthink it matters that the cross-examination brought out details that were not in herevidence-in-chief. In the result her account was more specific than his, because hehad not gone into much detail in his police statement. In that statement he said thatshe snatched the phone, he went to grab it, she pushed him back onto the bed, and hepulled her back with him and restrained her. In evidence she said that he grabbed heras she went to walk away with the phone and she threw it away and was thenrestrained. In our opinion the evidence excluded self-defence at this juncture.[25] As noted, Ms Preston argued defence of property.15 We observe at once thatthe contest was not really about possession of the phone. The complainant wanted tosee what was on its screen, he having denied that he was watching pornography, andhe wanted to stop her seeing it, because as he admitted to the police he had in fact beenhaving some "private time". Keeping that knowledge from her was his real objective.Hers was to verify that he was lying and have words with him about it. His objectiverequired that he retained possession of the phone as against her, but on the evidenceadduced at trial we are not persuaded that it was reasonably necessary for the physicalsecurity of the phone, which she had thrown across the room when he seized her, torestrain her on the bed as he did.[26] This is a marginal case in that she was initially the aggressor — she snatchedthe phone from him — but for the reasons just given we are not persuaded thatthe Judge's findings were unavailable to her. That disposes of the appeal because, as15 Crimes Act 1961, s 53.just explained, we consider that those findings exclude the defences of self andproperty. No miscarriage has resulted.Result[27] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent