Bouncer’s appeal over violence conviction dismissed

A BOUNCER caught by his girlfriend having ‘‘private time’’ has lost his appeal over a resulting violence conviction.

At a judgealone trial in Queenstown District Court in 2017, Queenstown man Jacob Mitchell Cummings (24) was found guilty of forcibly restraining the woman.

He took his case all the way to the Court of Appeal believing there had been a miscarriage of justice.

His girlfriend had found him watching pornography on his cellphone and tried to grab his phone. Cummings put her in a headlock on the bed.

Dunedin appeal barrister Lisa Preston argued Cummings had claimed to have acted in defence of self or property and as he was not crossexamined, that defence was left open.

P.D. Marshall, for New Zealand police, countered the prosecutor was under no duty to crossexamine and Cummings chose not to give oral evidence. Therefore, Chief District Court Judge JanMarie Doogue was open to find on the facts presented that Cummings was the aggressor, which excluded defence of self or property.

The Court of Appeal judgement, by Justices Forrie Miller, Robert Dobson and Cameron Mander, dated December 20, agreed. It was not up to the prosecution to lend credibility to Cummings’ account through crossexamination.

‘‘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,’’ the appeal court judgement reads.

‘‘They disagreed centrally over whether she pushed him on to the bed and tried to hit him.

‘‘On her account, he had no need to restrain her, because she was not attacking him and was either just looking at the phone or no longer holding it.’’

The appeal court found in one part of the incident, he had acted in self defence, holding her arms in a way that prevented her from attacking him.

But in the initial stages, she had not tried to hit him and had already relinquished possession of the phone when he restrained her.

‘‘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 . . . and he wanted to stop her seeing it.’’

He admitted to police he’d been having ‘‘private time’’.

The justices said the case was ‘‘marginal’’ given she was initially the aggressor.

The appeal was dismissed and the assaulting a female conviction stands.