Fielding v Police - [2018] NZHC 2222

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…

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 [2018] NZHC 2222
Case: [2018] NZHC 2222
Decision Date: 28 August 2018

CaseChat Overview and Summary

In Fielding v Police, the appellant, Ms Alison Joan Fielding, appealed against her conviction and sentence for trespass, arguing that the District Court judge erred in not discharging her without conviction and in imposing a sentence without sufficient information about her personal circumstances. The case was heard in the High Court of New Zealand Wellington Registry, with Ms Spelman representing the appellant and Mr Britton representing the respondent, the New Zealand Police. The key legal issue was whether Ms Fielding's conviction and sentence should be quashed due to the alleged errors in the District Court's handling of the case. The court found that while the District Court judge did not err in his assessment of the evidence, there was a risk of a miscarriage of justice due to the untested allegations of sexual assault against the complainant, which were not considered during the initial trial. The fresh evidence, including affidavits from Ms Fielding, her defence counsel, her doctor, and the homestay coordinator, suggested that a discharge without conviction might have been appropriate given the potential serious consequences of the conviction on Ms Fielding's mental health and career prospects. The court quashed Ms Fielding's conviction and remitted the case to the District Court for reconsideration of the fresh evidence and a decision on whether to discharge her without conviction.

The final orders of the court were to allow the appeals against conviction and sentence, set aside Ms Fielding's conviction, and remit the case to the District Court for further consideration of the fresh evidence and a determination on whether Ms Fielding should be discharged without conviction. If the District Court decided not to discharge her, it was directed to convict her and impose a sentence it deemed appropriate.

Orders