Fielding v Police
[2020] NZHC 2728
•16 October 2020
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 involvement in the alleged trespasses on 16 February and 3 March 2017. She was advised of her rights under the New Zealand Bill of Rights Act 1990. At the end of the interview, she signed the Constable’s handwritten notes confirming she had read them, and that they were accurate.
[9] At the conclusion of the interview, she was advised by Constable Stewart that she was under arrest for unlawfully being in an enclosed yard or area under s 29(1)(b) of the Summary Offences Act 1981. Ms Fielding signed a notice confirming that she was being held in legal custody.
[10] After conferring with Constable Stewart, Senior Sergeant Chanel Chapman then issued the pre-charge warning. Constable Stewart read out and explained the pre- charge warning. Ms Fielding signed the pre-charge warning acknowledging receipt. In a sworn affidavit, Constable Stewart says Ms Fielding refused to supply her fingerprints and photographs as part of the process but agreed to return the following day. She did not return.
[11] There is no statutory basis for a pre-charge warning. An affidavit filed on behalf of the police says that the overall purpose of a pre-charge warning is to hold an offender to account and to deter them from further offending. The decision to issue a pre-charge warning is an exercise of the prosecutorial discretion.
[12] In Osborne v Worksafe New Zealand, the Court of Appeal said that the exercise of a prosecutorial discretion is justiciable, but the intensity of review and the availability of relief will be constrained.2 That is due to reasons such as the importance of observing constitutional boundaries between the executive and the judiciary and the high content of judgment and discretion in prosecutorial decisions.3
[13] This means that relief or intervention by the Courts is only likely to be granted in “exceptional” cases, particularly where the prosecutorial decision is to prosecute.4 Points of intervention could include whether discretion to prosecute had been abdicated, where there had been a failure to consider relevant considerations, or where irrelevant considerations have been taken into account.5 These findings were not challenged on appeal to Supreme Court.6
[14] Ms Fielding’s challenges to the decision to issue a pre-charge notice may be grouped under three broad headings. Each of these three grounds is considered below.
[15] First, she says that Constable Stewart’s account of the interview is fabricated because it records that she admitted the offence after being charged when that was not true. That statement is found in Constable Stewart’s case summary report which Ms Fielding obtained under the Privacy Act 1993. Constable Stewart does not, however, repeat this statement in his sworn affidavit filed in opposition to the application.
[16] While Ms Fielding’s challenge is understandable in the circumstances, the accuracy of this statement does not ultimately bear on the determination of her claim. The challenge is made to the decision to issue the pre-charge warning. That depends on the events leading up to that decision, and not what happened after the notice was issued. The events leading up to the decision, including the fact that Ms Fielding denied the offence, are recorded in a handwritten statement which Ms Fielding signed
2 Osborne v Worksafe New Zealand [2017] NZCA 11, [2017] 2 NZLR 513 at [35].
3 At [34]–[35].
4 At [36].
5 At [35] and [37].
6 Osborne v Worksafe New Zealand [2017] NZSC 175, [2018] 1 NZLR 447 at [24].
as true and correct. Constable Stewart’s affidavit is based on that account, and there is no reason to doubt the credibility and reliability of that evidence.
[17] For completeness, I record that Ms Fielding makes other allegations of inaccuracies or fabrications in Constable Stewart’s account. For example, she says that Constable Stewart selected that he had completed fingerprinting and photographic evidence when completing the charge sheet. That is not correct. In fact, the charge sheet records that the fingerprints, photographs, and DNA evidence were not taken at the time as Ms Fielding was not feeling well. Similarly, Ms Fielding says she was unaware that she was arrested or read her rights. But, the contemporaneous notes of the interview, which Ms Fielding signed, records that Ms Fielding was told of her rights under the New Zealand Bill of Rights Act 1990. Ms Fielding also signed a “notice to person in custody” which records that she has been arrested and charged. The documentary evidence does not corroborate Ms Fielding’s allegations.
[18] The final point under this head is to record that Ms Fielding makes extremely serious allegations against Constable Stewart, such as obstruction of justice and interference and tampering with evidence. There is absolutely no foundation to those allegations at all. They should not be entertained by this Court and I spend no further time considering them.
[19] Second, Ms Fielding challenges the decision to issue a pre-charge warning on the basis that the complainant’s property was not an “enclosed yard”. As I understand her submissions, she makes two points in this regard.
[20] The first point she makes is a factual challenge to the basis upon which the notice was issued. She says she was not on the complainant’s property, but on the public accessway which runs adjacent to that property. However, Constable Stewart’s evidence refers to CCTV footage which gives good reason to suggest otherwise. I am satisfied that there is a sufficient factual foundation for the issuing of the pre-charge notice.
[21] The second point she makes is legal in nature. She says that the property is not an “enclosed yard”. That is because it was not fenced at either end. That argument is premised on a literal interpretation of the meaning of “enclosed”. But in Hewson v Police, this Court confirmed that the meaning of “enclosed” includes:7
[C]onstructions or plantings, or any other form of physical delineation including, for example, concrete edgings, not necessarily continuous, which are sufficient to convey to a reasonable person that members of the public as such were intended to be excluded.
[22] It is clear from the CCTV stills provided in evidence that there were features of the complainant’s property that physically delineated it as private property. The complainant’s property was therefore an “enclosed” yard and this submission cannot succeed.
[23] The third ground of challenge to the issue of a pre-charge warning is Ms Fielding’s belief that it influenced the Judge’s decision to subsequently convict her of wilful trespass. However, there is no indication that the pre-charge warning was relied on (as opposed to just referred to) in the decision to subsequently convict Ms Fielding for wilful trespass on 2 July 2018. More significantly, Ms Fielding was subsequently discharged without conviction on appeal to this Court.8 I note that the judgment of this Court records that Ms Fielding acknowledged trespassing on to Mr McIntyre’s property on 13 January 2018 and that she claimed this was a “spur of the moment decision”.9
[24] There is no basis to challenge the decision to issue a pre-charge warning and this ground of review must be dismissed.
The harassment notice
[25] On 3 January 2018, Ms Fielding’s former partner gave a statement to police that from 22 October 2017 to 30 December 2017, Ms Fielding had committed numerous acts of harassment towards him.
7 Hewson v Police HC Whangarei AP25/97, 14 October 1997 at 9.
8 Fielding v R [2019] NZHC 1472.
9 At [37].
[26] On 12 January 2018, Constable McCardle drafted a formal warning letter for criminal harassment. It was not immediately served by the Constable on Ms Fielding. Two days later, on 14 January 2018, the complainant gave a further statement that Ms Fielding had trespassed on to his property the day prior, being 13 January 2018. Ms Fielding was subsequently arrested on suspicion of wilful trespass.
[27] After being interviewed at the Kāpiti police station, Ms Fielding was served with the harassment notice, and charged with wilful trespass for the trespass on to the complainant’s property on 13 January 2018.
[28] As with pre-charge warnings, there is no statutory basis for written warnings issued by police for criminal harassment. The decision to issue the harassment notice is also the exercise of prosecutorial discretion and, as explained earlier, the decision is reviewable albeit only in limited circumstances in accordance with the deference accorded to police decision-making.
[29] I am satisfied that the decision to issue the harassment notice in the circumstances was a lawful and reasonable one. It followed a review of CCTV footage showing an intruder on or around the complainant’s property. Given Ms Fielding’s prior history with the complainant, there were reasonable grounds to believe that the offender was Ms Fielding, and the notice was issued accordingly.
[30] Ms Fielding alleges that the information relied upon for the harassment notice was improperly obtained because she did not acknowledge or confess to the incidents. However, it was not necessary for Ms Fielding to do so. And, there was no obligation on the police to consult with Ms Fielding before serving the harassment notice on her.10
[31] In addition, Ms Fielding alleges that the harassment notice was premeditated, and motivated by improper or ulterior motives. That is because the harassment notice had been prepared on 12 January 2018 prior to the date of the trespass on 13 January 2018.
10 White v Attorney-General [2020] NZHC 740 at [62].
[32] This submission proceeds on a misapprehension of the sequence of events. As explained in the affidavit of Constable McCardle, the harassment notice was drafted on 12 January 2018 in response to earlier complaints recorded in a statement of the complainant dated 3 January 2018. It was not served until 15 January 2018 when Ms Fielding was present at the Kāpiti police station. The suspicion of premeditation, and improper or ulterior motives, is ill-founded.
[33] Similarly, there is no substantiation of Ms Fielding’s claim that she was made to sign the harassment notice under duress. The harassment notice was a warning and does not require the recipient to sign it. Ms Fielding subsequently clarified that the document she allegedly signed under duress was her notice of police bail, not the harassment notice. The police obviously deny any allegation of duress in relation to this notice also, but, in any event, it falls outside the scope of the current application for judicial review.
[34] Allegations regarding improper conduct in the arrest for wilful trespass are not relevant to the current judicial review application. I simply record that the allegations have been reviewed by the Independent Police Conduct Authority and dismissed and they are strongly denied by the Constables involved.
[35] Finally, as with the pre-charge notice, there is no basis to say that the harassment notice was used as evidence in her wilful trespass trial or influenced the Judge in any way.
The search warrant
[36] On 18 March 2019, the police received a complaint from the girlfriend of Ms Fielding’s former partner. She alleged that she and her mother had been receiving letters and Facebook messages from various people under pseudonyms containing allegations and warnings about Ms Fielding’s former partner.
[37] On 25 March 2019, the police applied for a search warrant to search Ms Fielding’s residence. It was issued and executed the same day. Various electronic devices were uplifted pursuant to the search warrant.
[38] The following day, 26 March 2019, the police were advised by Ms Fielding’s then counsel that the devices contained legally privileged material and requested that the seized devices be secured pursuant to s 147 of the Search and Surveillance Act 2012. The devices were subsequently placed into police storage, and have not been accessed since.
[39] In Attorney-General v Gill, the Court of Appeal said that judicial review should rarely be permitted to challenge the application, issue or execution of a search warrant, particularly in the course of an investigation into alleged criminal offending.11 Judicial review of a search warrant will only be permissible: 12
… where the defect in a search warrant is of a fundamental nature, where the matter could be said to go the jurisdiction of the issuing officer, or where some other ground of lawfulness (such as want of jurisdiction) can be established.
[40] Ms Fielding alleges that Sergeant Stonehouse breached his duty of candour by omitting to state that the complainant was “currently under investigation for sexual assault” and that he made a false declaration to obtain the search warrant.
[41] The acts which precipitated the issue of the search warrant were the statements made in correspondence to the complainant’s girlfriend. Obtaining evidential material as to the source of that correspondence was the focus of the search warrant. Ms Fielding’s claims about the complainant were not relevant to the search warrant application. Accordingly, there could be no breach of candour in failing to mention prior complaints made by Ms Fielding about the complainant. In any event, the nature of those complaints was set out in the correspondence annexed to the search warrant application, and so the issuing officer would have been aware of the allegations.
11 Gill v Attorney-General [2010] NZCA 468, [2011] 1 NZLR 433 at [20].
12 At [40].
[42] Ms Fielding also challenges the legality of the search warrant on the grounds that it relied upon the harassment notice. However, as the search warrant application makes clear, it was not predicated on the acts of harassment referred to in that notice but rather Facebook messages, letters and emails sent to the complainant’s girlfriend nearly a year later. Other claims, such as the “signing” of the harassment notice under duress have been dealt with under that heading and there is no need to repeat those claims here.
[43] Further, there were reasonable grounds for believing that the search of Ms Fielding’s residence would reveal evidence of criminal harassment. The nature of the correspondence, and the history between the parties, was more than enough to justify the issue of the search warrant.
[44] Finally, Ms Fielding seeks the return of the seized devices. The police say they have made numerous attempts to return the seized devices subject to the ability to make clones pursuant to s 146(a)(ii) of the Search and Surveillance Act.
[45] Ms Fielding refuses to allow those clones to be made, and has indicated that she has not withdrawn her claim of privilege. It appears that the dispute has reached somewhat of a stalemate although Ms Fielding did appear to suggest that she may consent to cloning of the devices if there was agreement on the entity responsible for that cloning.
[46] There is an ongoing criminal investigation in relation to the matters the subject of the search warrant application. In light of that ongoing criminal investigation, I do not consider it appropriate to make substantive orders in the context of a judicial review claim requiring the return of the seized devices to Ms Fielding. I simply note that there is the power to make the clones under the provisions of the Search and Surveillance Act, and once made, the devices may be returned to Ms Fielding.
[47] It follows that there are no defects in the search warrant application which would justify judicial oversight and this cause of action must also be dismissed.
Result
[48] The application for judicial review is dismissed. If the respondent seeks costs, and quantum cannot be agreed, a memorandum of counsel of no more than five pages in length may be filed within 15 working days of this judgment. Ms Fielding shall have 10 working days to respond thereafter. Costs shall be determined on the papers unless ordered otherwise.
Edwards J
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