Fielding v Police - [2020] NZHC 2728

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-000611

[2020] NZHC 2728

UNDER the Judicial Review Procedure Act 2016

IN THE MATTER OF

review of decisions made by various police officers

BETWEEN

ALISOHN JOAN FIELDING

Applicant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 24 September 2020

Appearances:

A J Fielding in Person

S B McCusker for the Respondent

Judgment:

16 October 2020

JUDGMENT OF EDWARDS J

This judgment was delivered by me on 16 October 2020 at 12.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: Luke Cunningham Clere, Wellington

Copy To: A J Fielding, Paraparaumu

FIELDING v POLICE [2020] NZHC 2728 [16 October 2020]

[1] The applicant, Ms Fielding, challenges the lawfulness of three actions by Kāpiti police. These are:

(a)the issuing of a pre-charge warning on 24 March 2017 (the pre-charge warning);

(b)the service of a warning for criminal harassment on 15 January 2018 (the harassment notice);

(c)a search warrant applied for on 25 March 2019 in respect of an ongoing investigation into criminal harassment by Ms Fielding (the search warrant).

[2] The steps taken by police followed complaints by Ms Fielding’s former partner, and his new girlfriend.1

[3] Ms Fielding was convicted in the District Court of wilfully trespassing on her former partner’s property on 13 January 2018. She was subsequently discharged without conviction on appeal.

[4] The challenge proceeds by way of judicial review. The police say the decisions to issue the pre-charge warning and harassment notice were lawful and reasonable, and the application for a search warrant contained no defects which would render it invalid.

The pre-charge warning

[5] On 25 January 2017, Constable Stewart received a complaint from Ms Fielding’s former partner regarding a trespasser on his property at Raumati Beach on 5 January 2017. The complainant indicated that he believed the trespasser to be Ms Fielding, and also said that he had been subject to numerous acts of harassment since that day.

1 These steps also form the basis of a civil claim by Ms Fielding against the police officers concerned for alleged misfeasance in public office.

[6] On 7 February 2017, Constable Stewart, acting under the complainant’s written authority, served Ms Fielding with a trespass notice warning her to stay off the complainant’s property at Raumati Beach.

[7] Further complaints were made about an individual believed to be Ms Fielding trespassing on the same property. These included an individual recorded on closed circuit television (CCTV) cameras entering onto the property at 11.43 pm on 16 February 2017. And, on 3 March 2017, the complainant’s garage door was smeared with dog faeces, and an individual, believed to be Ms Fielding, was recorded walking past his garage door with a dog four times that afternoon.

[8] Further complaints were made in early March 2017 about incidents in late February and early March. On 24 March 2017, Ms Fielding was interviewed at the Kāpiti police station and denied any…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fielding v Police

Details

AGLC: Fielding v Police [2020] NZHC 2728
Case: [2020] NZHC 2728
Decision Date: 16 October 2020

CaseChat Overview and Summary

The applicant, Ms Alison Fielding, sought a judicial review of three actions taken by Kāpiti police. These were the issuing of a pre-charge warning, the service of a warning for criminal harassment, and a search warrant applied for in respect of an ongoing investigation into criminal harassment. The actions followed complaints by Ms Fielding's former partner and his new girlfriend. The police maintained that the decisions to issue the pre-charge warning and harassment notice were lawful and reasonable, and that the application for a search warrant contained no defects. The court considered whether the decisions to issue the pre-charge warning and the harassment notice were lawful and reasonable exercises of prosecutorial discretion. It found that the decisions were supported by the evidence and therefore lawful. The court also considered whether there were defects in the application for the search warrant. It found that the application was valid and therefore the search warrant was lawful. The application for judicial review was dismissed. The court noted that the seized devices could be returned to Ms Fielding once they had been cloned under the provisions of the Search and Surveillance Act.

Orders