IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA188/2018
 [2018] NZCA 622

	
BETWEEN	
JACOB MITCHELL CUMMINGS
Appellant	
	
AND	
NEW ZEALAND POLICE
Respondent	

Hearing:	
14 November 2018	

Court:	
Miller, Dobson and Mander JJ	

Counsel:	
L C Preston for Appellant
P D Marshall for Respondent	

Judgment:	
20 December 2018 at 11.30 am	

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)
[1]	This appeal is brought, by leave, from a High Court judgment dismissing Mr Cummings’s appeal from conviction in a judge-alone trial in the District Court at Queenstown.  
[2]	The charge is male assaults female.  The police alleged that Mr Cummings assaulted his then partner by holding her in a headlock after she grabbed his phone as he 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 in her evidence in chief.  She was cross-examined at some length, defence counsel seeking to establish that she was the aggressor and Mr Cummings merely restrained her as she bit and scratched him.  Mr Cummings had made a statement to the police to that effect, putting in issue defence of self and property (the phone).  The statement was put to the complainant in detail.  The constable who took it was questioned to confirm the gist of it.  Mr Cummings then went into the witness box.  He confirmed his statement but did not expand on it.  The police prosecutor elected not to cross‑examine him on it.
[4]	Chief Judge Doogue gave a brief oral judgment in which she said that there were two distinct accounts.  She found the complainant’s account coherent in sequence and peripheral detail, more so than Mr Cummings’s, and found his injuries more consistent with her account than his.  Two video clips (of interactions on other occasions) that he introduced did not help his case that she was the aggressor.  The Judge did not address self‑defence or defence of property.  She found the charge proved beyond reasonable doubt.
[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 her and they excluded self-defence and defence of property.  
[6]	Leave for a second appeal was sought on the ground that, because Mr Cummings’s account was not challenged in cross-examination, there was left a credible narrative for defence of self or property that the trial Judge had to address and make specific findings on.  This Court did not accept that the appeal raised any question of general or public importance, but it granted leave because there may have been a miscarriage in the circumstances:
[12]	We do however accept that there is a risk of a possible miscarriage unless the appeal is heard arising from the failure to cross-examine Mr Cummings about the incident in the bedroom.  In particular, our concerns are that a key reason given for believing the complainant was the greater detail in her account and her consistency.  Yet, her detail came from answering questions in cross-examination.  Mr Cummings was not afforded that opportunity, rendering a comparison of their respective detail and consistency problematic and potentially unfair.  We also consider there is an issue whether, in the particular circumstances of this case, a possible inference from the failure to cross-examine was that the prosecutor was unable to identify aspects of Mr 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 beyond reasonable doubt.
The appeal
[7]	Ms Preston, who was not trial counsel, advanced a skilled and determined argument for Mr Cummings that began with the proposition that where defence of self or property is raised on the evidence the prosecution must exclude it beyond reasonable doubt.  Mr Cummings’s account did raise these defences.  It went unchallenged.  There are cases in which cross-examination is unnecessary because the prosecution 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 account alone was insufficient to reject Mr Cummings’s account.  It was not a she-said, he‑said case.  The issue was why Mr Cummings restrained her in a headlock.  Mr Cummings having entered the witness box, only through cross-examination could the Judge be satisfied beyond reasonable doubt that he was not acting in defence.  She preferred the 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 argued that the prosecutor was under no duty to cross-examine, for Mr Cummings chose not to give oral evidence about the events and the prosecutor’s duty did not extend to giving him an opportunity to repeat his statement and enhance his credibility.  That being so, the Judge’s view of the facts was open to her.  Her reasons were adequate to the occasion; she found Mr Cummings was the aggressor, and that finding excluded defence 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 into the bedroom, saw what Mr Cummings was doing, and went to grab his phone.  He pulled her back by the neck and held her down.  She tried to get away, having thrown the phone onto the floor, and he again pulled her back and restrained her.  She bit and scratched him in an attempt to get away.  He did not cause her pain.  She complained to the police because he did not take her seriously.
[11]	In cross-examination, she accepted that the incident had two parts.  In the first part, she grabbed the phone, he restrained her in a headlock on the bed as she went to walk away with it and she threw the phone across the room.  Mr Cummings’s account was put to her.  It was that he restrained her when she grabbed the phone but released her 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 her when she grabbed his phone to see what he was looking at.  She accepted that she was restrained twice, and though in evidence-in-chief she had claimed she had been unable to breathe she admitted in cross-examination that was untrue.  
[12]	In the second part, the complainant left the room when he released her, but she returned and sat on the side of the bed.  He tried to hug her.  She again tried to grab the phone.  His account was that she tried to punch him and he restrained her by holding her wrists.  She denied trying to hit him, but she accepted that he turned her around so he was standing behind her and held her arms.  While in that position she scratched 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 she snatched the phone from him and it fell to the ground, he went to get it and she pushed him back onto the bed.  As she did so he pulled her with him.  He then grabbed his phone off the ground and she left the room.  She returned, sat on the bed and again snatched the phone from his hand.  He stood up, she pushed him in the face and threw the phone, he grabbed her and she landed on top of him.  He then restrained her as she scratched and headbutted him and tried to punch him.  As noted, he was called to confirm the statement.  He described his injuries.  When asked by his counsel, he said he 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 to grab the phone in an angry state and he restrained and released her three times, not attempting to hurt her.  They disagreed centrally over whether she pushed him onto the bed and tried to hit him.  On her account, he had no need to restrain her, because she was not attacking him and she was either just looking at his phone or no longer holding it.  
The Judge’s reasons
[15]	Chief Judge Doogue gave an oral judgment.  She summarised the complainant’s evidence:
[3]	The complainant gave evidence that she had got up early and had started making breakfast when she returned to the bedroom in which she and the defendant had both been sleeping the previous night.  When she walked into 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 put his arm around her neck, holding her onto the bed.  She conceded that it was not painful but that it was restraining and that she was objecting to exertion of control by him of her.  With his arm around her neck, restraining her on the bed she said she tried to bite him and did in fact bite him to attempt to get him to 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 attempt to remove the defendant’s phone from him and on this occasion she says that he 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's counsel put an entirely different version of events to her, the critical elements being that it was she who was the aggressor in attempting to push the defendant onto the bed and restraining him on the bed.  Secondly, that she was the aggressor in attempting to swing and punch at the defendant and that she did this because she was angry about his viewing pornography.
[6]	The defendant simply in his evidence affirmed the statement that he gave to Sergeant Matheson on the day in question and it was a very simple repetition by him of the version of events that had been put to the complainant comprehensively. …
[17]	The Judge found the complainant a credible witness, finding her account more coherent and detailed than his:
[7]	The fact that the complainant was distressed and disturbed by the relationship for a variety of reasons has not in my view coloured her account to the extent that she has actively misled the Court.  There is no doubt that she is highly emotional but her account was consistent, repeatedly so under the cross-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 with the complainant’s account and less consistent with that of Mr Cummings.
Must 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 Act 2006, which provides that:
92	Cross-examination duties
(1)	In any proceeding, a party must cross-examine a witness on significant matters that are relevant and in issue and that contradict the evidence of the witness, if the witness could reasonably be expected to be in a position to give admissible evidence on those matters.
…
If the duty is not complied with a court may (relevantly) reduce the weight attached to an account contradicting that of the witness.
[19]	The authorities establish that the rule is one of fairness.  As such, its content varies with the circumstances.  Speaking generally, a witness who has been given reasonable notice of a contradictory account should take the opportunity to respond to it in evidence-in-chief.  If the witness fails to do so, then opposing counsel ordinarily need not cross-examine, for the duty does not extend to offering the witness an opportunity to establish his or her credibility.  
[20]	In this case Mr Cummings does not complain that he was not on notice of the complainant’s account.  Through counsel he chose to rest on his police statement and 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, that in the circumstances the prosecutor need not cross-examine and the Judge need not discount 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 the failure to cross-examine, but she went further and argued that the reasons given for preferring the complainant’s account were unsustainable when assessed against the trial record.  The Judge was wrong to find that there were two distinct accounts of what happened; rather, the parties substantially agreed on everything except whether Mr 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 coherent than his.  It was only in cross-examination that much of her account emerged.  She was not a credible witness; she had to admit to embellishing some details.  The injuries he sustained are consistent with either account, and the complainant admitted they were 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 extent that a miscarriage of justice occurred.  The appellant must point to a real risk of a miscarriage.  We add that this was a short hearing of about one hour, with oral reasons for verdict given immediately, and some allowance must be made for that when examining the Judge’s brief reasons.  
[23]	If we were concerned with the second part of the incident only, we would allow the 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 holding his arms in a way that prevented her from using them to attack him.  While he was doing so she bit and scratched him.  In the circumstances, this would suffice to leave reasonable doubt about whether he was defending himself.  We accept Ms Preston’s submission 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 was clear that she did not try to hit Mr Cummings.  She was tested on this, and we do not think it matters that the cross-examination brought out details that were not in her evidence-in-chief.  In the result her account was more specific than his, because he had not gone into much detail in his police statement.  In that statement he said that she snatched the phone, he went to grab it, she pushed him back onto the bed, and he pulled her back with him and restrained her.  In evidence she said that he grabbed her as she went to walk away with the phone and she threw it away and was then restrained.  In our opinion the evidence excluded self-defence at this juncture. 
[25]	As noted, Ms Preston argued defence of property.  We observe at once that the contest was not really about possession of the phone.  The complainant wanted to see what was on its screen, he having denied that he was watching pornography, and he wanted to stop her seeing it, because as he admitted to the police he had in fact been having 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 objective required that he retained possession of the phone as against her, but on the evidence adduced at trial we are not persuaded that it was reasonably necessary for the physical security of the phone, which she had thrown across the room when he seized her, to restrain her on the bed as he did.
[26]	This is a marginal case in that she was initially the aggressor — she snatched the phone from him — but for the reasons just given we are not persuaded that the Judge’s findings were unavailable to her.  That disposes of the appeal because, as just explained, we consider that those findings exclude the defences of self and property.  No miscarriage has resulted.
Result
[27]	The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent