Fielding v Police
[2018] NZHC 2222
•28 August 2018
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2018-485-000052
[2018] NZHC 2222
BETWEEN ALISOHN JOAN FIELDING
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 28 August 2018 Counsel:
J R Spelman for Appellant
A W M Britton for Respondent
Judgment:
28 August 2018
JUDGMENT OF COLLINS J
Introduction
[1] The issue raised by this appeal is whether Ms Fielding should be discharged without conviction for trespass in light of fresh evidence.1 This judgment explains why I am quashing Ms Fielding’s conviction and remitting her case to the District Court so that evidence in support of her application for a discharge without conviction can be properly tested and assessed.
Background
[2] On 13 January 2018, Ms Fielding, who had previously been in a relationship with the complainant, trespassed onto his property. The complainant was asleep at the time, but Ms Fielding’s presence was recorded on CCTV footage. Ms Fielding had
1 Police v Fielding [2018] NZDC 13970.
FIELDING v NEW ZEALAND POLICE [2018] NZHC 2222 [28 August 2018]
previously been served with a notice under the Trespass Act 1980 requiring her to keep off the complainant’s property.
[3] The CCTV footage showed a person disguised in a white top with a hood and a scarf covering their face. Around 6.42 am, this person emerged out of some bushes on the side of the driveway to the complainant’s property and placed a note under the windscreen wiper of a vehicle belonging to the complainant’s then girlfriend. The person then left through the same bush area.
[4] About 10 minutes later, the same person returned to move some furniture from the complainant’s deck.
[5] About 15 minutes after that, the same person peered into a window after they had been standing some time looking at the property.
[6] Three minutes later, the person threw a plant onto the complainant’s front porch.
[7] Four minutes after that, the person removed a note that had been left for a courier and opened the front door, leaving it slightly ajar.
[8] Ms Fielding pleaded not guilty to the charge of trespass. Her defence was that she was not the person who could be seen in the CCTV footage, and that it was not her who had trespassed onto the complainant’s property.
[9] Judge Johnston found that Ms Fielding was the person in the CCTV footage and therefore convicted her. He accepted the evidence given by the complainant identifying Ms Fielding’s mannerism of walking, and his recognition of her clothing, shoes, eyes and eyebrows.
District Court decision
[10] Judge Johnston rejected a submission from then counsel for Ms Fielding that she should be dealt with by being ordered to come up for sentence if called upon. He did not regard that outcome as sufficient for Ms Fielding’s offending. He concluded
that nine months’ supervision was the least restrictive sentencing outcome. He also imposed special conditions requiring Ms Fielding to undertake such assessment, counselling, courses, treatment and training as directed by the probation officer.2
[11]No application for a discharge without conviction was made to Judge Johnston.
Grounds of appeal
[12]Ms Fielding appeals her conviction and sentence on the basis that:
(1)Judge Johnston erred by failing to discharge her without conviction.
(2)Judge Johnston erred by proceeding to sentencing in the absence of information about Ms Fielding’s personal circumstances.
(3)Judge Johnston erred by imposing a sentence that was manifestly unjust.
Appeal against conviction
[13] In order for Ms Fielding’s application for a discharge without conviction to gain traction, she must first have her conviction quashed.
[14] In this case I can only allow Ms Fielding’s appeal against conviction if I am satisfied that Judge Johnston erred in his assessment of the evidence to such an extent that a miscarriage of justice occurred, or if I am satisfied a miscarriage of justice has occurred for any other reason.3 A miscarriage of justice is defined as any error, irregularity, or occurrence that created a real risk that the outcome of the trial was affected, or that resulted in an unfair trial or a trial that was a nullity.4
[15] Ms Spelman, Ms Fielding’s new counsel, has properly acknowledged Judge Johnston made no error in his assessment of the evidence. I proceed, therefore,
2 Police v Fielding [2018] NZDC 14602.
3 Criminal Procedure Act 2011, s 232(2).
4 Section 232(4).
on the basis there is no question Ms Fielding was the person recorded on the CCTV footage at the complainant’s home.
Application for fresh evidence
[16]Ms Spelman has sought leave to admit four affidavits in support of the appeal:
(1)An affidavit by Ms Fielding, in which she explains she and the complainant broke up in December 2016 because he had been unfaithful with multiple women, one of whom she found him with in bed.
She says that after they broke up, she went to the complainant’s house and he offered her alcohol, which she consumed. She explains that she does not usually drink alcohol. She recounts that she woke up naked the next day, and believes that the complainant had spiked her drink and had sex with her without consent. She says she attempted to report this to police on two occasions (after the trespass had occurred), but that they would not take any action because they were dealing with the trespass charge against her.
Ms Fielding explains that she takes in Japanese homestay students for Kapiti College for $255 per week and that her 17-year-old daughter is learning Japanese and makes friends with the homestay students. She says she would be unable to continue to provide this service if her conviction remains.
Ms Fielding also explains that she is training to become a health educator and she is concerned that having a conviction would disadvantage her as compared to other candidates for a job in that profession.
(2)An affidavit by Ms Thistoll, defence counsel in the District Court, who explains that she was aware that Ms Fielding was receiving counselling, but she did not know the reasons why her client was
receiving counselling. She also confirms that no stand-down pre- sentence report was sought by Judge Johnston before sentencing. She says that Ms Fielding would often get upset and distressed when discussing the complainant when they were preparing for her trial.
(3)An affidavit by Dr Kang, Ms Fielding’s doctor, who explains that Ms Fielding likely suffers PSTD from the incident in December 2016. Dr Kang confirms that Ms Fielding becomes upset when discussing the details of her court case and the complainant. An ACC sensitive claim was lodged on 26 July 2018. Dr Kang also says that having to explain her conviction would be retraumatising for Ms Fielding and would have a detrimental impact on her mental health.
(4)An affidavit by Ms Bennett, the homestay co-ordinator at Kapiti College, confirming that Ms Fielding would not be able to be a homestay parent if she received a conviction as that would be against their policy.
[17] Mr Britton, for the Crown, submits that the evidence is inadmissible because it is not fresh, not credible and there is no risk of a miscarriage of justice if it is not admitted.5
[18] I accept that most of the new evidence is not fresh as it was available to be called at the hearing in the District Court. On its face, however, the evidence is credible. In making this assessment I am not drawing any conclusions about the veracity of Ms Fielding’s allegations. All I am saying is that the affidavits record matters that, if accepted, may have affected the sentence imposed in this case. Accordingly, I am satisfied there “is a risk of a miscarriage of justice if the evidence is excluded” and that “it should be admitted, notwithstanding that the evidence is not fresh”.6
5 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].
6 At [120].
Discharge without conviction
[19] The Court may grant a discharge without conviction under s 106 of the Sentencing Act 2002, only if it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.7
[20] The Court of Appeal has outlined the following approach, which is to be used to determine an application for a discharge without conviction:8
(1)first, consider all the aggravating and mitigating factors relevant to the offending and the offender;
(2)second, identify the direct and indirect consequences of the conviction for the offender;
(3)third, consider whether those consequences are out of all proportion to the gravity of the offence; and
(4)finally, consider whether the Court should exercise its discretion to grant a discharge.
Analysis
[21] The offending itself was not violent and was of a relatively moderate nature, although the notes of evidence suggest that this incident might be part of a broader pattern of behaviour. The complainant was very concerned about Ms Fielding’s conduct.
[22]The following personal circumstances apply:
(1)There is evidence of Ms Fielding’s previous good character. This was her first offence.9
7 Criminal Procedure Act 2011, s 107.
8 Z v R [2012] NZCA 599, [2013] NZAR 142 at [27].
9 Sentencing Act 2002, s 9(1)(g).
(2)Ms Fielding has pursued rehabilitative measures, including mental health treatment and counselling.
(3)Ms Fielding did not plead guilty to the charge, and there is no other evidence that she has demonstrated remorse for her offending.10
(4)Ms Fielding claims that the complainant sexually assaulted her in December 2016, and says that her offending was motivated by a desire to warn other women who became romantically involved with him.
[23]Ms Spelman identifies three consequences of the conviction:
(1)Mental health — Ms Fielding is concerned about being “retraumatised” by having to explain the circumstances behind her conviction to people in the future, when she says it should properly be left in the past. Dr Kang’s evidence supports the view that this would have a negative impact on Ms Fielding’s mental wellbeing.
(2)Employment opportunities — Ms Fielding is pursuing a career as a health educator. She is concerned that having a conviction would disadvantage her as compared to other candidates for a job in that profession.
(3)Homestay opportunities — Ms Fielding is a homestay parent through Kapiti College. Ms Bennett’s evidence is that a conviction will prohibit Ms Fielding being a homestay parent. This would cause a financial loss to Ms Fielding and would have a negative impact on her daughter enjoying the company and the chance to practice her language skills.
[24] I accept, based on the evidence presented, that Ms Fielding will no longer be able to act as a homestay parent if her conviction remains. The evidence regarding the impact on future employment opportunities is less clear. The concern appears to be
10 Sentencing Act 2002, s 9(1)(f).
nothing more than the usual impact of a conviction on the prospects of employment, which would be no more than an ordinary consequence of a conviction.11
[25] By themselves, these consequences would not be out of all proportion with the gravity of the offending, especially when Ms Fielding did not plead guilty and advanced a defence at trial that she was not the offender. However, the allegation that Ms Fielding was sexually assaulted by the complainant is very disconcerting. Although Ms Fielding phrased the allegation in those terms, the factual circumstances she described in her affidavit would potentially constitute the more serious offence of sexual violation by rape. If that allegation were true it might provide a very strong mitigating circumstance for Ms Fielding’s offending, and would lend credence to her argument that having to explain the context for her conviction would retraumatise her.
[26] However, affidavit evidence presented on appeal is not the appropriate way to deal with such a serious allegation. All that is before this Court is Ms Fielding’s untested allegation. The complainant has not been given the opportunity to respond to what is a particularly serious allegation about him. While the affidavits of Ms Thistoll and Dr Kang touch on the issue, most of what they say is hearsay.
[27] Judge Johnston cannot be criticised for failing to consider a discharge without conviction in this case, particularly as no application for such an outcome was advanced in the District Court. Nevertheless, the evidence now presented raises a real possibility that the District Court was denied the opportunity to consider granting a discharge without conviction in circumstances where that outcome may have been appropriate.
[28] In these circumstances, I am satisfied there was a miscarriage of justice in that there was an error on the part of trial defence counsel in not seeking a discharge without conviction, or an occurrence that created a real risk that the outcome of the trial was affected. The appropriate course is to allow the appeals against conviction and sentence and remit the case back to the District Court pursuant to ss 233(3)(e) and 251(2)(c) of the Criminal Procedure Act 2011. The District Court is to consider the new evidence from Ms Fielding, and any other evidence that may be presented by the
11 McMurdock v Police [2017] NZHC 1283 at [26].
prosecution, and determine if Ms Fielding should be discharged without conviction. The District Court may, if it decides not to discharge Ms Fielding without conviction, convict her and impose such sentence it considers appropriate.
Result
[29]The appeals against conviction and sentence are allowed.
[30] Ms Fielding’s conviction is set aside. The case is remitted back to the District Court for consideration of fresh evidence and for the District Court to determine whether, in the circumstances of this case, Ms Fielding should be discharged without conviction.
[31] The District Court may, if it is satisfied this case does not merit a discharge without conviction, convict Ms Fielding and impose whatever sentence it considers appropriate.
D B Collins J
Solicitors:
Crown Solicitor, Wellington for Respondent
2