High Court rejects assault conviction appeal

A BOUNCER who forcibly restrained his girlfriend when she confronted him over viewing pornography has lost his appeal.

Jacob Mitchell Cummings (24) was found guilty of assaulting the woman following a judgealone trial before Chief Judge JanMarie Doogue at the Queenstown District Court last year.

He applied for a discharge without conviction in December, which was rejected, and instead was fined $500 and ordered to pay the victim $500.

However, he appealed the ruling and the case was heard by the High Court at Invercargill last month.

Cummings argued Chief Judge Doogue misapplied the test for selfdefence and should have ultimately been left with reasonable doubt as to whether physical contact in the October 2016 incident was not justified.

The victim had got up early to make breakfast, the court heard heard at trial.

When she returned to the bedroom she found Cummings watching pornography on his phone and tried to grab it.

He restrained her by putting his arm around her neck and throat and holding her on to the bed.

In response, she bit him and dug her nails into his arm in an attempt to get him to release the stranglehold.

Eventually, he did so but she returned and made another attempt to take the phone.

On that occasion she said he held her arms up against her chest to disable her.

Cummings claimed his then partner was the aggressor, held him down on the bed and tried to punch him.

Chief Judge Doogue said the woman’s account was ‘‘consistent and coherent’’, with a level of detail not found in the defendant’s version of events.

She also found the victim’s account more consistent with the physical injuries sustained by Cummings.

In a recently released judgement, Justice David Gendall said he agreed with the prosecution’s analysis of the law.

‘‘Pulling a person toward you, who is attempting to get away, and holding that person down is not an act of selfdefence,’’ Crown prosecutor Riki Donnelly said.

Justice Gendall said the fact the judge at trial disregarded Cummings’ claims of selfdefence was not an error on her part.

‘‘As the Chief Judge did not accept the appellant’s version of events, it was unnecessary for her to consider whether these matters were available to the appellant as defences,’’ he said.

‘‘I am satisfied in all the circumstances of this case that a miscarriage of justice did not arise from the Chief Judge accepting one version of events over another.’’