Assault case heading to Court of Appeal

A Queenstown bouncer accused of forcibly restraining his girlfriend after she found him watching pornography on his cellphone is taking his case to the Court of Appeal.

Jacob Mitchell Cummings (24) was found guilty of assaulting the woman following a judge-alone trial before Chief District Court Judge Jan-Marie Doogue in Queenstown last year.

He applied for a discharge without conviction, which was rejected. He was fined $500 and ordered to pay the woman $500. He then appealed the ruling in the High Court at Invercargill in March.

The appeal was dismissed but he has been granted leave to appeal the male-assaults-female conviction to the Court of Appeal.

His girlfriend claimed when she had tried to grab his phone,  Cummings restrained her by putting his arm around her neck and throat and holding her on  the bed. To free herself from the stranglehold, she said, she bit him and dug her nails into his arm. He released her and she left the room.

Then she returned and  again tried to take the phone. He restrained her by holding her arms up against his chest.

But Cummings told police she was the aggressor. She pushed him on to the bed, restrained him and also tried to punch him because she was angry about him watching pornography.

Judge Doogue said she believed the girlfriend’s version of events.

On appeal to the High Court, Justice David Gendall said the chief judge was entitled to accept the complainant’s version of events. That meant the chief judge could not be criticised for failing to address issues of self-defence and defence of property because, on the complainant’s account, those issues did not arise.

But, crucially, Cummings was not cross-examined on his version of events during the judge-alone trial at Queenstown District Court.

Court of Appeal Justice Christine French, along with Justice Simon France and Justice Simon Moore in a judgment  on papers, said there was the risk of a miscarriage of justice unless the second appeal was heard.

"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."

The justices also found a possible inference from the failure to cross-examine was that the prosecutor was unable to identify aspects of his account that were implausible or otherwise worthy of testing. So it may not have been correct to find the charge proved beyond reasonable doubt.

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