CROSS v NEW ZEALAND POLICE [2023] NZHC 2868

CROSS v NEW ZEALAND POLICE [2023] NZHC 2868 [13 October 2023]IN THE HIGH COURT OF NEW ZEALANDTIMARU REGISTRYI TE KŌTI MATUA O AOTEAROATE TIHI-O-MARU ROHECRI-2022-476-12[2023] NZHC 2868BETWEEN JESSICA MAY CROSSAppellantAND NEW ZEALAND POLICERespondentHearing: 28 September 2023Appearances: T J Jackson for AppellantS M H McManus for RespondentJudgment: 13 October 2023JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 13 October 2023 at 2.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateIntroduction[1] Jessica Cross was found guilty on 30 September 2022, in the District Court atTimaru,1 on three charges, being:(a) disorderly behaviour;2(b) resisting a Police officer;3 and(c) assaulting a Police officer.4[2] Judge Large sentenced Ms Cross to nine months' supervision and 40 hours'community work.5 Ms Cross appeals both conviction and sentence.Facts[3] The facts on which Ms Cross was convicted (though at issue on this appeal)are as follows.[4] Ms Cross was at The Warehouse in Timaru. She was approached by a managerand a security guard who attempted to trespass her, apparently as a consequence ofsomething which happened on a previous occasion. Ms Cross refused to accept averbal trespass, and she also refused to accept a written trespass. The Police werecalled.[5] Constables Davis and Charles arrived and asked Ms Cross to leave multipletimes, which she refused to do so. At this stage of events, Ms Cross was described asbeing "assertive" and "vocal" and unwilling to accept the advice she was trespassed.[6] She agreed to leave the store, but there her behaviour escalated. She could beheard from inside the store screaming and abusing the officers saying, for instance,1 New Zealand Police v Cross [2022] NZDC 20613.2 Summary Offences Act 1981, s 4(1)(a); maximum penalty $1,000.3 Summary Offences Act, s 23(a); maximum penalty 3 months' imprisonment or a fine notexceeding $2,000.4 Summary Offences Act, s 10; maximum penalty 6 months' imprisonment or a fine not exceeding$4,000.5 New Zealand Police v Cross [2022] NZDC 20610."Fuck you, fuck this I'm not trespassed." Constable Charles considered members ofthe public looked shocked or offended.[7] The officers eventually arrested Ms Cross for disorderly behaviour, thoughMs Cross did not accept the arrest and resisted being placed in handcuffs. She had tobe escorted to the police car by the two officers and screamed while going with them.When Constable Davis leaned forward to open the police car and clear some space,Ms Cross struck Constable Charles with her elbow before kneeing her in the groin.Constable Charles appeared to be in pain a few seconds later.District Court decision[8] Judge Large first canvassed Ms Cross's presumption of innocence and the onuson the Police to prove the elements of the charges. The Judge went on to outline theevidence that had been presented and the conflicts between different accounts fromMs Cross, Police officers, and members of the public.[9] As Ms Cross elected to give evidence, the Judge gave himself a tripartitedirection, noting that a finding of not guilty necessarily followed if he acceptedMs Cross's evidence or if that evidence raised reasonable doubt. Even if the Judgerejected Ms Cross's evidence, he acknowledged that was not a complete answer as thePolice still bore the onus of proving the charges.[10] The Judge considered Ms Cross's evidence was "entirely unconvincing andunworthy of belief" as well as being "implausible" and "not consistent" with themanner in which she behaved in the store.6[11] The Judge considered that if he accepted the prosecution evidence as to thelanguage used by Ms Cross, the charge of disorderly behaviour would be made outgiven the nature of the language, its repetition, and the circumstances of its delivery,being in the mid-afternoon with members of the public around.6 At [41].[12] Judge Large placed considerable weight, in resolving the conflict of evidence,on the evidence of independent bystanders. Some of their evidence was unchallenged,and one witness in particular had come forward unprompted, rather than beingapproached by the Police. This evidence concerned Ms Cross yelling and usingabusive language, struggling during the process of her arrest, and assaultingConstable Charles. Multiple witnesses noted Constable Charles appearing to be inpain. This evidence was consistent with that of the officers. The Judge acknowledgeda video of the incident did not conclusively show a blow being delivered but notedissues with its filming.[13] The Judge assessed the officers' evidence as fair, not overstated or embellished,and corroborated by independent witnesses. There was no conflict between theirevidence giving rise to reliability or credibility concerns.[14] The Judge concluded that the elements for disorderly behaviour were made outon the evidence of the language and behaviour of Ms Cross when she left the store.Resisting arrest was proved by the observed behaviour of Ms Cross refusing toco-operate with police or be placed in the police car after her arrest. The Judge alsoconsidered the assault of an officer charge, wherein Ms Cross struck Constable Charlesin the groin while police were getting her into the car, had been established. Both theassault and the resisting arrest occurred at the time the officers were acting in theexecution of their duty.[15] In sentencing Ms Cross, Judge Large convicted and discharged her on thedisorderly behaviour charge. The Judge did not think a fine was appropriate, and theother penalties were considered sufficient. On the remaining two charges, a sentenceof nine months' supervision was imposed, with a requirement to undertake anassessment for anger management counselling and undertake any recommendedcourse. The Judge also ordered the minimum amount of community work, being40 hours.Principles on appeal[16] Section 232 of the Criminal Procedure Act 2011 provides that the High Courtmay only allow an appeal against conviction if satisfied that the trial judge "erred inhis or her assessment of the evidence to such an extent that a miscarriage of justicehas occurred", 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.7[17] The appeal proceeds by way of rehearing and this Court is required to form aview of the facts.8 If this Court reaches a different view on the evidence, it followsthe trial judge necessarily will have erred and the appeal must be allowed.9 The onusis on the appellant to show that an error occurred.[18] Appeals against sentence are allowed as of right by s 244 Criminal ProcedureAct 2011 and must be determined in accordance with s 250 of that Act. An appealagainst sentence may be allowed by this Court only if it is satisfied there has been anerror in the imposition of the sentence and a different sentence should be imposed.10As the Court of Appeal identified in Tutakangahau v R (quoting the lower court'sdecision), a "court will not intervene where the sentence is within the range that canproperly be justified by accepted sentencing principles".11 It is appropriate for thisCourt to intervene and substitute its own views only if the sentence being appealed is"manifestly excessive" and not justified by the relevant sentencing principles.12Conviction submissionsAppellant's submissions[19] Mr Jackson, for Ms Cross, says there was insufficient evidence for the Judgeto convict.[20] In respect of the disorderly conduct charge, Mr Jackson says the Judge engagedin erroneous reasoning. He submits the Judge failed to have regard to the standard ofconduct required to establish disorderly behaviour and instead said that if he accepted7 Criminal Procedure Act 2011, s 232(4).8 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]-[32].9 At [38].10 Criminal Procedure Act, ss 250(2) and 250(3).11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].12 Ripia v R [2011] NZCA 101 at [15].the evidence of the officers, the charge would be made out. There needed to be,Mr Jackson submits, offensive behaviour which seriously disturbs others' enjoymentof public spaces, citing the Supreme Court's decision in Brooker v Police.13[21] He says the Judge also failed to give proper weight to the video evidence,which does not support there having been disorderly conduct until the attempt tohandcuff Ms Cross outside the store. Mr Jackson contends the video evidence shouldhave been sufficient to raise doubt when the witnesses were general in their accountsand lacked precision as to the exact words used by Ms Cross.[22] Mr Jackson also says the CCTV footage from inside the store is broadlysupportive of Ms Cross's account. She appears to be having a civil, not aggressive,discussion with the officers and is not causing a disturbance for others. She leaves thepremises when it appears the officers motioned for her to continue discussions outside.He then suggests the basis for the arrest was in response to something Ms Cross saidto Constable Davis.[23] Mr Jackson says further that the Judge does not clearly identify what qualifiedas resisting arrest and conflated that conviction with the disorderly behaviour. He alsoquestions whether the officers were acting within the course of their duty. He notesthat the charge of disorderly conduct carries a fine only, and the Court had no regardfor whether the Police had an entitlement to arrest Ms Cross.14 The video evidence,Mr Jackson says, shows Ms Cross being walked to the police car. He submits she isnot being forcibly walked or dragged against her will, and there are no signs ofresistance. Any resistance which is present is justified given the lack of entitlement toarrest.[24] Most of Mr Jackson's argument concerned the assault charge. He contends theevidence does not demonstrate where and how Ms Cross might have been able to strikeConstable Charles in the way described, and that the constable did not immediatelyreact as if she had been kicked but only showed discomfort after walking around the13 Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91.14 This appears to be referencing s 315(2) of the Crimes Act which predicates warrantless arrest ongood cause to suspect a person of having committed any offence punishable by imprisonment.other side of the car. In making this submission, he makes extensive reference to thevideo taken by Ms Lyat from a second floor window overlooking the carpark. Whenthe officers and Ms Cross reach the car, the camera drops below the window framebriefly. When it pans back up, the car door is open and there is a sudden movement.Mr Jackson says that, given the orientation and movement of those involved, therecannot have been a kick by Ms Cross. Ms Cross then goes to ground, with the officersrestraining her. They get back to their feet. At this stage, Constable Davis releasesMs Cross to move a bag from the back seat of the car, leaving Constable Charlesholding Ms Cross's arm and standing behind her. The camera again pans away beforereturning to show the Police guiding Ms Cross into the car. Mr Jackson says, givenhow Constable Charles and Ms Cross are oriented in relation to each other, a kickcannot have occurred at that point either.[25] Mr Jackson then notes Constable Charles walks to the other side of the vehiclewith no apparent limitation before bending over and appearing to be in discomfort.[26] Mr Jackson questions the evidence of several witnesses.(a) He says the evidence of Ms Edwards, the store security worker, as toMs Cross's behaviour before and while under arrest appears to havebeen exaggerated when compared to the video evidence.(b) On the basis that his analysis of the video evidence is correct, hequestions Ms Howard's evidence that "it looked like she had kicked orkneed the female officer".(c) He says Ms Goodman's evidence that Ms Cross wasn't trying to walkproperly while being arrested and almost had to be carried, is anexaggeration. He also says her evidence about a kick from Ms Crosswas simply speculation based on Constable Charles being in pain.(d) He says Ms Lyat's evidence does not add to the prosecution case as shedid not see the contact of the kick and she has reconstructed (probablyinadvertently) what she thinks took place having reviewed therecording on her phone.(e) He argues Ms Hewson was quite some distance from the incident, withpotential visual obstructions, and is biased given her praise of theofficers and having come forward after reading an article in thenewspaper. She confirmed she did not actually see Ms Cross strikeConstable Charles.(f) Constable Charles' evidence as to what occurred inside and outside thestore, Mr Jackson says, does not align with the video evidence. He saysthe level of disturbance inside the store appears overstated, and theCCTV shows Ms Cross walking away from the officers rather thanyelling and swearing at them. Her evidence was that Ms Cross hadstruck her in the arm with her elbow before turning and striking her inthe groin with her left knee. However, he says this would have beenphysically impossible to do in the time available on the footage.(g) He takes issue with the evidence of Constable Davis who said that, afteropening the car door, he turned back to Constable Charles and Ms Crossand saw that Constable Charles had a look of pain on her face.Mr Jackson says he cannot have seen her face at this point. Mr Jacksonsays Constable Charles gives inconsistent evidence about whyMs Cross ended up on the ground.[27] Fundamentally, Mr Jackson submits it was not possible for Ms Cross to have,while handcuffed and in heels, elbowed Constable Charles, turned, and delivered aknee to the groin with her left leg.[28] Further, he argues the Judge was wrong to reject Ms Cross's evidence. Shewas consistent as to the central events, her explanations were plausible, and it isobvious, he says, that the situation deteriorated with the involvement of ConstableCharles. He says the Judge appears to have formed an unfavourable opinion ofMs Cross and criticises the references to her apparent "motive" to give untruthfulevidence.[29] In the event the Court allows the appeal, Mr Jackson submits the convictionsbe quashed and no re-hearing ordered. He says that given the level of the charges anddifficulty reconciling witness accounts with video footage, a re-hearing will beinconvenient, complicated, and have little chance of resulting in a conviction.Respondent's submissions[30] Ms McManus, for the respondent, suggests the appeal can be separated into thefollowing issues:(a) Whether the Judge failed to consider the correct standard for disorderlybehaviour.(b) Whether the Judge failed to consider the evidence correctly in respectof the tripartite direction.(c) Whether the Judge failed to take into account the video evidence whenconsidering the evidence of prosecution witnesses.(d) Whether there was insufficient evidence to convict Ms Cross of theassault charge.(e) Whether the Judge failed to consider whether the officers were actingwithin the course of their duty in relation to the resisting arrest charge.[31] As to the first issue, Ms McManus notes the difficulty courts have had indefining a term as broad as "disorderly behaviour". She notes the four differentarticulations of what comprises such behaviour in the Supreme Court decision inBrooker v Police.15 However, she summarises them by saying disorderly behaviour isconduct that constitutes a disturbance to good order which, in the time, place and15 Brooker v Police, above n 13.circumstances of the case, is at a level reasonable citizens should not be expected toendure.[32] Ms McManus acknowledges the Judge did not make reference to Brooker, orthe Supreme Court's decision in Morse v Police, when discussing the disorderlyconduct charge.16 However, she says the Judge is not required to do so, and the failuredoes not lead to a miscarriage. Ultimately, it is whether the conduct in questionreached the threshold for disorderly conduct in the particular circumstances of thecase. Here, Ms Cross's behaviour was protracted and excessive. She was abusive,screaming, and shouting, and several members of the public were disturbed by herbehaviour. The Judge approached the matter by taking account of the circumstances,noting it occurred in mid-afternoon with members of the public, including children, inthe area, and was entitled to reach the view this was disorderly behaviour.[33] Regarding the tripartite direction, Ms McManus notes that judges need notrefer explicitly to the tripartite direction. Despite this, the Judge did so, and did notapproach the judgment via an impermissible line of reasoning. The Judge expresslysaid he did not find guilt as a result of rejecting Ms Cross's evidence. He went on tosay why the prosecution evidence was sufficient to establish the charge. In reachinghis conclusions, Ms McManus notes that Judge Large, as the trial Judge, was bestplaced to consider the credibility of the various witness accounts.[34] Ms McManus then moves to address the issues raised regarding the videoevidence and the sufficiency of evidence together. The video evidence, she says, doesnot assist on the charge of disorderly conduct as it only shows Ms Cross after she wasarrested and while being taken to the Police vehicle. Similarly, she says Ms Crossresisted arrest prior to the action the video captures, and the video cannot, as theappellant suggests, be determinative. She cautions against using the video to negatethe various witnesses' evidence when much of the evidence given by witnesses'concerns matters which occurred out of shot. As far as it speaks to the assault,Ms McManus notes the camera pans away from the scene for three seconds, duringwhich time the scuffle takes place between the parties. Further, as the footage is blurry16 Morse v Police [2011] NZSC 45, [2012] 2 NZLR 1.and captured from a distance, it is simply another piece of evidence rather than beingdeterminative in any way. The Judge, while acknowledging the video and what it doesand does not show, also used the evidence given by various witnesses in arriving at aconclusion of guilt.[35] Ms McManus then addresses the resisting arrest charge and the appellant'sdispute over whether the constables were acting in the course of their duty. She notess 39(1) of the Summary Offences Act provides (with some exclusions) that anyconstable may arrest and take into custody without a warrant any person whom theyhave good cause to suspect of having committed an offence against any of the Act'sprovisions, with some exclusions. This includes the offence of disorderly behaviourunder s 4. The section refers to "good cause to suspect"; it does not require the relevantsuspected offence to be established later. Both officers gave evidence as to the basisof the arrest including that they conferred with each other before arresting Ms Cross.They were therefore acting in the execution of their duty, and this ground should fail.Appeal against sentence[36] The submissions on the sentence appeal were not as forcefully advanced.Mr Jackson raises a concern as to whether the 40-hour community work sentence onthe two charges of resisting arrest and assault of a police officer is cumulative orconcurrent. He also argues a sentence of supervision of nine months is unwarrantedgiven the lack of drugs or alcohol. He notes Ms Cross has recently given birth and isa full-time mother and submits that supervision and a "come up if called upon"sentence would be more appropriate.[37] Ms McManus argues it is clear the 40-hour sentence was imposed on thecharges concurrently, as demonstrated by the Judge's comment that this was theminimum amount of community work he could order. This is supported by the Orderfor Sentence of Community Work which states the sentence was 40 hours ofcommunity work.[38] Ms McManus notes that a sentence of supervision need not be predicated ondrug and alcohol issues. Violent offending will often attract sentences with arehabilitative focus. The sentence is clearly within range, and Ms Cross's currentcircumstances do not affect whether the sentence was manifestly excessive.Analysis[39] I approach the issues on appeal on a charge by charge basis and considerwhether the evidence was sufficient to support each charge and whether the Judgemade any other errors, as alleged, in deciding the charge was proved.Disorderly behaviour[40] The Judge, relying on the accounts of the constables and other bystanders,concluded that disorderly behaviour was made out on the basis of Ms Cross'sbehaviour and language leaving and outside the store.[41] Ms Cross gave evidence that she was calm inside the store both with staff andin her interactions with police. She says that after going outside with the constables,the conversation there did not concern the trespass and was steered by ConstableCharles. She says Constable Charles was needling her about a previous interactionthey had had and threatened to issue a fine in relation to it. She said her father wasgetting agitated about Constable Charles and, as they were walking away, about 15–20 metres from the police, she said to her father, "she's nothing but a fucking bitch".[42] Ms Cross's father's evidence was broadly supportive, saying ConstableCharles was "giving it whatever" and being "yap, yap, yap, yap, yap". That said, inseveral aspects his account is not consistent with Ms Cross's. He says that his daughterwas getting agitated and this increased when the female constable arrived. Onceoutside, the discussion heated up about the trespass order. He says he was not gettingupset, and it was he who calmed the situation. He acknowledged there was a bit ofswearing and cursing going on which was addressed to the constable.[43] Constable Davis, who arrived at the store first, said in evidence thatengagement with Ms Cross in the store was not bad. He noted she became angrierwhen Constable Charles arrived and then again outside the store where she beganshouting abuse and expletives, including along the lines of, "Fuck you, fuck this. I'mnot trespassed". He and Constable Charles eventually decided her behaviour wasunacceptable and warranted arrest.[44] Constable Charles' evidence primarily concerned what occurred outside thestore. She gave evidence that, while Constable Davis attempted to discuss the trespassnotice, Ms Cross was insistent on shouting at her about a previous interaction she andMs Cross had had, and Ms Cross screamed at her that "I will fucking end your career"and "you are fucked now you bitch". She says some members of the public werelooking shocked or offended, and a mother and child were trying to enter the store atthis time. She says she and Constable Davis attempted to disengage and haveMs Cross depart, but given the continued abuse as she walked away, they decided toarrest her.[45] Ms Edwards, an employee at the store, said that in early interactions withMs Cross in the store, she had been agitated and getting in her space, though there wasno swearing, and Ms Edwards accepted the evidence of another witness that Ms Crosswas assertive but not aggressive at this point. However, she said that once Ms Crosswas outside the store she was "quite hysterical" and yelling abuse at the constablesoutside the store. Ms Cross was told at least three times to leave but did not. She thendescribed Ms Cross as "yelling random abuse back at everyone really" and said thatin her 20 years working in security of the store, she had "never seen a performancequite like that".[46] Ms Beeby, another staff member, gave evidence as to Ms Cross merely beingassertive but not aggressive up until the arrival of police. She noted being able to hear,from inside the store, Ms Cross shouting aggressively outside, and she spoke aboutthe presence of children in the store.[47] Ms Layt also spoke about Ms Cross not being aggressive with staff initially butlater hearing her yelling.[48] The unchallenged evidence of Ms Goodman referred to hearing "a femalevoice threatening and carrying on" prior to her arrest.[49] Similarly, Ms Howard's unchallenged evidence was that Ms Cross was"shouting aggressively" and "shouting nasty words not suitable for a public place",and it was loud enough to make her "get up and look out of the window".[50] The CCTV footage is of no real assistance in relation to this charge. Thecamera is some distance from the interaction, and the parties are mostly obscured bythe two sets of sliding doors and walls of the building. Ms Cross is out of sight formost of it, but when she can be seen, she does appear to be animated and pointing orgesturing. There is no sound recording on the store CCTV footage, althoughcustomers, particularly towards the end of the exchange, can be seen staring at thealtercation as they enter the store.[51] Recognising the advantages the District Court Judge had in assessing theevidence, I can see no basis on which to disturb his conclusion in preferring theevidence of the prosecution. The constables' evidence as to Ms Cross's behaviouroutside the store was supported by a range of other witnesses whose evidence wasrelatively consistent, while there are inconsistencies in the evidence between Ms Crossand her father.[52] In terms of whether the behaviour described met the threshold for disorderlyconduct, it was not necessary for the Judge to refer to cases like Brooker and Morse,though more clear reasoning as to the threshold against which he was assessing thebehaviour may have been helpful. Ascertaining whether behaviour has reached thethreshold of being disorderly or offensive is necessarily case specific and has longbeen held to be a question of degree with all relevant matters of time, place, and othersurrounding circumstances being considered.17 There is overlap in the concepts of"disorderly" and "offensive" insofar as both must give rise to a disturbance to publicorder beyond that which a reasonable citizen should be expected to bear, anddisorderly conduct may also constitute offensive conduct.18 There is a distinction,though, with the notion of causing offence being an underpinning element of offensivebehaviour.1917 Brooker v Police, above n 13, at [90].18 At [54].19 Morse v Police, above n 16, at [62]–[63] and [70].[53] Thus, for behaviour to be disorderly in terms of s 4(1)(a) it must be conductthat constitutes a disturbance to good order which, in the time, place and circumstancesof the case, is at a level reasonable citizens should not be expected to endure, andwhich justifies the intervention of the criminal law.[54] Here, the circumstances include the repeated and loud use of expletive-ladenabuse and the fact the store was relatively busy at the time with people coming andgoing from the entrance where Ms Cross was, including children. The CCTV showsseveral people stopping and taking notice of what was going on. On the other hand, Ido not accept the behaviour was particularly protracted. Ms Cross's more egregiousconduct appears to be restricted to what occurred as she left and when she was outsidethe store. The primary target of the abuse was the police, although two witnesses saythe abuse was more generally directed.[55] I accept that in Aue v Police, this Court, on appeal, allowed an appeal againsta conviction for disorderly conduct where the appellant was aggressive and yelled atpolice when they attended his property and were asked to leave.20 The Judge held thata degree of shouting and swearing is not uncommon from time to time in residentialneighbourhoods and did not reach the threshold of being disorderly conduct.[56] However, the present case, in my view, falls just on the other side. This was apublic place, and several staff members and members of the public gave evidenceabout the behaviour, which was not the case in Aue. There were clear signs thatMs Cross's behaviour was disturbing to the public, and that is reinforced by theevidence of Ms Edwards, who said she had never seen anything like it in her 20 yearsas a store security officer and the unchallenged evidence of Ms Howard who said MsCross was "shouting nasty words not suitable for a public place".[57] Unlike in Aue, where neighbours appeared "curious" as opposed to disturbed,there was evidence here that the behaviour did disturb shoppers and staff in the publicplace and made them uncomfortable. This was not behaviour in a bar at night, whereswearing and aggression might be more common place, or in a private home as in Aue,20 Aue v Police [2013] NZHC 637, [2013] NZAR 471.but in a public place in the middle of the day near the entrance to a large store wherepeople could not avoid the disturbance.[58] For these reasons, while the matter is finely balanced, I am satisfied thebehaviour described in the evidence which the Judge accepted did amount todisorderly conduct, and the appeal against this conviction is dismissed.Resisting arrest[59] Ms Cross said her arrest was very rough. She was not told anything, but wassimply grabbed from behind and her arms secured before being marched to the nearbyglass wall and forcefully pushed into it. She said this caused a loss of bladdercontinence. She said she did not struggle as she was walked to the police car beforebeing pushed to the ground. She said her screaming on video was due to the rougharrest.[60] Mr Cross gave evidence regarding the arrest, although he acknowledges thathe not only returned to his car, but also that he only watched the arrest intermittentlyand was on his phone doing some work.[61] Constable Charles said Ms Cross pulled, resisted and struggled throughout thearrest process. In particular, she refused to place a second hand behind her back sothat handcuffs could be secured and resisted this. She also would not drop items inher hand, including a set of keys, when asked to do so. Constable Davis' evidencemirrors this. He also said that Ms Cross struggled against the arrest and would notdrop the keys in her hands when asked, which he was concerned about due to herbehaviour. He says she was tensing and pulling away constantly when he andConstable Charles escorted her to the wall to enable the handcuffs to be fitted, thoughwas somewhat more cooperative when walking to the car.[62] Both constables gave evidence that walking Ms Cross to the car from the glasswall was easier and that, while she was still pulling and twisting, they were notgripping her tightly. They both also said it was they who took Ms Cross to ground inorder to secure her properly in response to the alleged assault.[63] The evidence of Ms Hewson, the bystander who came forward independently,corroborates that Ms Cross was pulling her arm away so that police could not fit thehandcuffs on her and did not co-operate in being walked across to the car. She wasconsistent, despite being pressed several times, that she had a clear view of matterswithout cars in the road. The only difference between her evidence and the constables'evidence is that she assessed Ms Cross to have deliberately gone to ground beside thepolice car and needing to be lifted up, whereas the constables' evidence was that theytook Ms Cross to ground.[64] Ms Edwards was able to see the arrest through a set of windows and gaveevidence that the constables struggled in getting Ms Cross from the window to the car.She also considered Ms Cross threw herself to the ground when she arrived at the car.Ms Layt gave similar evidence in a statement as to Ms Cross struggling while beingarrested but said she was "pretty tame" in the walk to the police vehicle beforeMs Cross dropped to the ground.[65] Ms Goodman's evidence was that Ms Cross "wasn't trying to walk properlyand it looked like the police officers almost had to carry her".[66] The CCTV footage is again of no real assistance in respect of the arrest itself.The cell-phone video footage also does not capture most of the arrest process butshows Ms Cross, now handcuffed, coming out from under the balcony and moving tothe police car, escorted by the constables. I consider what it shows is consistent withthe constables' evidence. She appears to be leaning backwards against the directionof travel and at 35 and 36 seconds into the video, she briefly drops her hips, draggingon their arms. They are holding her in a secure way. She is yelling loudly throughoutthis process.[67] The Judge noted that the prosecution and defence narratives were entirely atodds, and this was something he needed to resolve. He rejected Ms Cross's accountand preferred that of the prosecution witnesses. This was on the basis of a credibilityassessment of Ms Cross and the fact the prosecution witnesses corroborated eachother. I do not consider the Judge erred in concluding he preferred the prosecutionevidence.[68] The Judge is not clear, though, as to what exactly satisfied the elements ofresisting arrest. At [54], the Judge says it was because, an arrest having occurred,"Ms Cross did not go to [the] police car following that arrest". This could concernonly the escort from the glass wall to the car, or it could encapsulate everything fromwhen Constable Davis advised her she was under arrest. I consider the latter to bemore likely given the constables' evidence and Ms Hewson's account that Ms Crosswas twisting and struggling when being escorted to the glass wall and pulling herhands away and refusing to be handcuffed. It is clear, on this evidence, which issupported by independent witnesses, that the "resisting" element of resisting arrest ismade out.21[69] I am also satisfied the constables were acting in the execution of their duty.Section 39(1) of the Summary Offences Act provides:Any constable, and all persons whom he calls to his assistance, may arrest andtake into custody without a warrant any person whom he has good cause tosuspect of having committed an offence against any of the provisions of thisAct except sections 17 to 20, 25, and 32 to 38.[70] Even if I had not upheld the disorderly behaviour conviction, I am satisfied thepolice had good cause to suspect Ms Cross was offending against s 4 of the SummaryOffences Act. They were empowered to arrest her, were acting bona fide in theexercise of powers vested in them,22 and the resistance therefore occurred while theywere acting in the execution of their duty.[71] The appeal against this conviction is dismissed.Assault on an officer[72] Ms Cross denied any assault. She said in evidence that she was handcuffed, inheels, and was winded from being pushed into the glass wall. It was physicallyimpossible, she said, for her to have turned and kneed Constable Charles in the groin.21 Tanu v Police HC Auckland CRI-2009-404-155, 14 February 2011; and Smith v Police (1988) 3CRNZ 262 (HC) at 266 and 267.22 The same circumstances came up in Spencer v Police (1989) 5 CRNZ 145 (HC). See alsoCavanagh v Police [2022] NZHC 2174.She says Constable Davis cannot have noticed a change in Constable Charles'complexion given his back was to her.[73] Mr Cross said he had looked away at the relevant moment, so his evidence isof no assistance.[74] Constable Charles gave evidence that, as Constable Davis was opening the cardoor, Ms Cross struck her in the left arm, so she turned her body to the left to takeanything further on her vest, meaning she was more alongside her. Ms Cross thenturned and brought her knee into her groin. She said the pain was immediate but thatshe acted to secure Ms Cross as she "had to finish my job". Her lack of apparentdiscomfort while walking to the other side of the car after allegedly being kicked andbefore she was seen bending over in apparent pain, was covered extensively incross-examination, but she maintained she was in pain throughout the period followingthe assault. She explained the lack of medical evidence of bruising or bleeding asfollows: "I did not wish to have photos taken of my vagina by my work colleagues."[75] Constable Davis's evidence was that there was a sudden movement when hewent to open the door and that he felt Ms Cross move her body. In his notebook entry,he had recorded that Constable Charles appeared to have been struck in the crotch, andMs Cross was turned away from him. He says bringing Ms Cross to the ground wasin response to this as he suspected a blow and wanted to ensure safety. He gaveevidence that Constable Charles appeared to be in pain, was pale, and had tears in hereyes. He did not recall an exclamation of pain.[76] Ms Edwards gave evidence that she saw something happen as police attemptedto get Ms Cross in the car. Both Ms Goodman and Ms Howard said it looked likeMs Cross kicked or kneed Constable Charles. Ms Hewson did not actually see a kick.Ms Layt was unclear on whether she saw Constable Charles struck.[77] The video taken by Ms Layt is not, as Mr Jackson suggest, determinative as tothe lack of a kick. The camera drops away so we cannot see what is happening attwo points. At 39 seconds, the parties have reached the car, and Constable Davismoves to lean towards the car door to open it but the camera pans away. This is thepoint where Constable Charles say she was kicked. At this stage, Constable Charlesis alongside Ms Cross who appears to be leaning backwards and looking over her rightshoulder (which is the side Constable Charles is on). The camera pans back up at43 seconds but, due to the movement, is blurry. At 44 seconds, Constable Davis canbe seen turning back towards Ms Cross and Constable Charles. The officers then takeher to the ground. A voice comments on camera, "ooh she's had a go".[78] Mr Jackson spends some time examining the later part of the video where itagain pans away, but no assault is alleged at that time so his submissions on whetheran assault was physically possible at that point are not relevant.[79] Relevantly, the video then shows Constable Davis moving a bag beforeMs Cross is placed in the back seat. Constable Charles moves around the car, opensthe opposite door, leans in, and then proceeds to shut it. As she shuts the door shebegins to hold her groin and doubles over. Again, I do not accept Mr Jackson'ssubmission that this demonstrates there can have been no assault when it was alleged.Constable Charles was consistent in saying she had to complete her role at the timeand was holding herself together before securing Ms Cross and shutting the car door.She then bends over in pain. At 1:51 of the video, you can hear a woman say, "I thinkshe booted her".[80] Given the witness accounts that Ms Cross kicked or appeared to kick theconstable, including contemporary commentary in the video from witnesses indicatingsome sort of assault had happened, and in light of Constable Charles' evidence and theJudge's credibility findings as to which he evidence he broadly preferred, I do notconsider there has been any error in the assessment of the evidence. The videoevidence, while not capturing the actual assault, confirms the general accuracy of thewitness testimony as to events before and after the assault. The fact witnesses differedon whether they thought Ms Cross was taken down to the ground by police or did thisherself does not undermine the general reliability of their evidence. I also note thatConstable Charles' reaction of obvious pain, albeit several seconds after the kick wassaid to be administered, supports the kick having occurred. It is implausible she wouldhave reacted this way if it had not occurred.[81] In summary, I do not consider the Judge erred in his assessment of the evidenceon any of the charges such that the convictions should be disturbed.Sentence appeal[82] The sentence appeal was not pursued in any detail. Mr Jackson appeared toacknowledge that the sentence was within range on the three convictions. There canbe no dispute that a total of 40 hours of community service was the sentence imposed.The Judge expressly commented that this was the minimum he could impose.Mr Jackson primarily takes issue with the appropriateness of the supervision sentence.[83] Section 20(2) of the Sentencing Act 2002 allows for community work to becombined with supervision only if a sentence of community work is appropriate andthe offender requires the imposition of conditions available under supervision toaddress the causes of their offending.[84] In sentencing, the Judge expressed concern as to the way the situation hadescalated and considered Ms Cross had an anger management issue that neededaddressing. He made it a condition of supervision that she attend an assessment forcounselling for that issue and then undertake any course recommended. In makingthis assessment, the Judge was able to draw from hearing from the witnesses, includingMs Cross, in the course of the trial. Mr Jackson has not presented anything to indicatethe Judge erred in that conclusion. He simply argues the lack of a problem with drugsor alcohol meant supervision was not appropriate.[85] Sentences of supervision have rehabilitative aims and, while commonly usedin contexts of drug or alcohol abuse, are not limited to those issues. Angermanagement is, in my view, an issue which supervision can appropriately address.[86] In Creegan v Police,23 a sentence of supervision was quashed because it wasneither necessary nor appropriate for rehabilitative purposes, and the Judge'ssentencing remarks suggested that it may have been imposed, not to reduce the23 Creegan v Police [2015] NZHC 1513.likelihood of further offending, but as a penalty. There is nothing to suggestJudge Large was applying supervision as a punitive measure in this case.[87] Finally, Ms Cross's changed family circumstances do not have a bearing onwhether the sentence was appropriate at the time it was imposed. In any event, it isnot clear to me why she cannot complete those sentences, despite her changedcircumstances.Conclusion[88] The appeal against conviction and sentence is dismissed.Solicitors:JMJ Lawyers Ltd, TimaruCrown Solicitor, Timaru