CUMMINGS v NZ POLICE [2018] NZHC 338

CUMMINGS v NZ POLICE [2018] NZHC 338 [7 March 2018]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2018-425-000005[2018] NZHC 338BETWEEN JACOB MITCHELL CUMMINGSAppellantAND NEW ZEALAND POLICEDefendantHearing: 5 March 2018Appearances: L S Collins for AppellantR W Donnelly for RespondentJudgment: 7 March 2018JUDGMENT OF GENDALLIntroduction[1] On 29 March 2017, in the District Court at Queenstown, Chief Judge Doogueconvicted the appellant on one charge of male assaults female. The appellant appealsthis 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 havespecifically considered and applied the test for defence of the appellant's property (hisphone) under s 53 and, thirdly, that the evidence should have left her with reasonabledoubt 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 thetime of the alleged offending, but have since separated.[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 startedmaking breakfast, when she returned to the bedroom where she and the appellant hadbeen sleeping. She found the appellant watching pornography on his phone. She triedto grab the phone. He restrained her by putting his arm around her neck and throatand holding her onto the bed. She conceded that it was not painful but it did restrictand control her movement and she objected to it. In response, she bit him and dug hernails into his arm in an attempt to get him to withdraw the stranglehold. Finally, hereleased the complainant and she left the room. Subsequently she returned and madeanother attempt to take the appellant's phone. On this occasion she says he held herarms 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, nothe. Counsel put it to the complainant that she restrained him on the bed, not the otherway around, and that she attempted to punch the appellant because she was angryabout him watching pornography. The appellant effectively confirmed this accountwhen he gave his evidence.[6] The appellant's injuries, namely scratches and bite marks on his arms, werephotographed by Police. The complainant did not sustain injuries.[7] After the alleged offending, the appellant attended one session of domesticviolence counselling. In his affidavit in support of a discharge without conviction, theappellant says the service did not recommend further sessions. He tried to attend moresessions in the weeks before his sentencing in December 2017, but the serviceinformed him it could not provide any information for the court because he had notengaged with counselling on a regular basis.District Court decision[8] At trial, the Chief Judge set out the two competing narratives of the events. HerHonour recognised that this case hinges on credibility. As to this, she stated: "theCourt has to be satisfied beyond reasonable doubt that it is the complainant who istelling 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 theappellant's version of events. Her Honour also found the complainant's account moreconsistent with the physical injuries sustained by the appellant. Her Honour dismissedthe appellant's argument that the complainant was the aggressor in the relationship.The videos adduced by the appellant to demonstrate this, of the complainant grabbingthe appellant's phone at work, were "far from" conclusive. Her Honour alsomentioned that the fact the complainant continued to initiate contact with the appellantafter the events in question did not affect the complainant's veracity. Without citingspecific examples, her Honour referred to "ample research" that the fact that thosewho have been abused continue to have contact with their abusers is not inconsistentwith 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 $500reparation. 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 mayonly allow an appeal against conviction if satisfied that the trial judge "erred in his orher assessment of the evidence to such an extent that a miscarriage of justice hasoccurred", or that "a miscarriage of justice has occurred for any reason." Amiscarriage of justice means any error, irregularity, or occurrence in or in relation tothe trial that has created a real risk that the outcome of the trial was affected, or hasresulted in an unfair trial.1[12] Section 232 makes clear that not every error or irregularity causes amiscarriage of justice. Instead there must be a "real risk" that the outcome wasaffected. R v Sungsuwan defines a "real risk" as "a reasonable possibility that a not1 Section 232(4).guilty (or more favourable) verdict might have been delivered if nothing had gonewrong".2[13] R v Condon held that a mere departure from good practice does not render atrial unfair.3 Instead the errors or irregularities must depart from good practice in amanner "so gross, or so persistent, or so prejudicial, or so irremediable" that the courtmust quash the decision.4[14] This appeal proceeds by way of rehearing. This Court on appeal must examinethe 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 interferewith the trial Judge's findings of fact.6 Where a question of credibility is the centralfocus of the appeal, and the lower court has had the opportunity to listen to thewitnesses, some deference to that court's judgment may be appropriate.SubmissionsAppellant's submissions[15] As I have noted above, the appellant appeals his conviction effectively on threegrounds: first, that the Chief Judge misapplied the test in relation to self-defencegoverned by s 48 of the Crimes Act 1961; secondly, that she did not consider and applythe test for defence of the appellant's property under s 53 of the Crimes Act 1961; andthirdly, that the evidence presented at trial should have left the Chief Judge with areasonable doubt as to whether any intentional contact by the appellant on thecomplainant 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 theSupreme 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 thecomplainant;(b) there was no evidence to support the Chief Judge's comment that acomplainant may continue to have contact with a person who hasassaulted them;(c) the Chief Judge failed to give reasons for her finding that the appellant'sinjuries were more consistent with the complainant's version of events;(d) the prosecution did not challenge the appellant's account of how theinjuries were caused; and(e) the Chief Judge in effect reversed the onus of proof in not finding thevideos compelling evidence that the complainant was the aggressor inthe relationship.[17] The respondent characterises these submissions, in my opinion correctly, asquestioning whether it was open to the Chief Judge to accept the complainant'saccount of events.Respondent's submissions[18] The respondent submits that it was open to the Chief Judge to accept thecomplainant's version of events.[19] On the complainant's account, the respondent contends that self-defence orreasonable force to defend the appellant's property would not be possible argumentsopen to the appellant here. The complainant says she was trying to grab the appellant'sphone, not attack him, when he put her in a stranglehold. It is unlikely that would beseen as a reasonable response to the circumstances.[20] The respondent maintains that the correct test under s 232 of the CriminalProcedure Act is whether a miscarriage of justice occurred. However, the respondentgoes 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 alsocites R v Owen,8 which is an appeal from a jury trial. These submissions, although ofsome merit, are not entirely on point.[21] The respondent submits that judges are entitled to take judicial notice ofmatters which are accepted in society generally, which includes family violencedynamics.9 As such, the Chief Judge did not need to provide evidence to support thefinding that a complainant may continue to contact an abusive partner.[22] The Chief Judge did not give specific reasons why she found the appellant'sinjuries to be more consistent with the complainant's version of events, but therespondent submits, nevertheless, this was apparent from the evidence. Thecomplainant, to her credit, provided details about the scratches and bite marks she hadinflicted on the appellant. The appellant did not, however. The respondent submitsthat the appellant's version of events, where he said the complainant was swingingpunches at him, does not explain the bite marks on him. Even though the Chief Judgedid 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 havedirectly challenged the appellant on his account of how the injuries were sustained, itis said there was no unfairness in cross-examination. The appellant had heard theprosecution case and could respond to it. There was thus no unfairness and nomiscarriage of justice.[24] Finally, the respondent contends that the Chief Judge did not reverse the onusof proof in not accepting the videos as evidence that the complainant was the aggressorin the relationship. Rather, read in context, the Chief Judge was explaining that shehad found the complainant's evidence to be believable, and the existence of the videosdid 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].AnalysisSelf-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 notmention ss 48 or 53. Assuming the appellant submitted at trial that at the relevant timehe was simply defending himself or his property, the Chief Judge must not haveconsidered these as available arguments. If, however, the Chief Judge accepted thecomplainant'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, whois 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, holdingthe complainant down forcibly was not a reasonable act of force to defend thedefendant's phone pursuant to s 53.[26] As the Chief Judge did not accept the appellant's version of events, it wasunnecessary for her to consider whether these matters were available to the appellantas defences. On an appeal against conviction however, the appellate court should ineffect 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 ofjustice has occurred" or whether a miscarriage of justice has occurred for any otherreason.10Did a miscarriage of justice result from the Chief Justice accepting the complainant'sversion of events?[27] I am satisfied in all the circumstances of this case that a miscarriage of justicedid not arise from the Chief Judge accepting one version of events over another. Itcan sometimes be difficult to explain why one person appears more credible thananother, but the Chief Judge did so here with reference to the complainant's accountbeing more consistent with the injuries sustained by the appellant and, by contrast thelevel of detail of events the complainant gave. The Chief Judge also recognised the10 Criminal Procedure Act, s 232(2)(b) and (c).arguments put forward by the appellant, and explained why she did not find them tobe conclusive.[28] On an appeal against conviction, the appellate court is required to consider thecase anew. However, this case hinges almost entirely on credibility, and the ChiefJudge had the benefit of seeing both parties give evidence and be cross-examined. Iam hesitant to depart from her conclusions when there is nothing specifically on theevidence that might even suggest that the appellant's version of events here is moreconvincing.Conclusion[29] The Chief Judge made clear credibility findings and on this basis she wasjustified in accepting the complainant's version of events over the appellant's. Indoing so, the appellant's arguments of self-defence and also defence of his propertywere no longer available. The Chief Judge did not need to analyse the application ofss 48 and 53 if the appellant could not be successful on those points. The force usedby the defendant here against the complaint by implication at the very least could notbe seen as reasonable. No miscarriage of justice has occurred.[30] For these reasons, this appeal is dismissed....................................................Gendall JSolicitors:Liam Collins, Barrister, QueenstownPreston Russell Law, Christchurch