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Mitchell v Police

Mitchell v Police

Case [2020] NZHC 440 9 March 2020

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-000512

[2020] NZHC 440

IN THE MATTER of an appeal against conviction

UNDER

the Criminal Procedure Act 2011, ss 229 and 244

BETWEEN

SARAH-JANE MITCHELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:
4 February 2020 (Further submissions received on 20 and

28 February 2020)

Appearances:

S Moore for the Appellant

K Fitzgibbon for the Respondent

Judgment:

9 March 2020

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Monday, 9 March 2020 at 2.00 p.m.

Registrar/Deputy Registrar

……………………………………

Solicitors:Meredith Connell (Office of the Crown Solicitor), Auckland for the Respondent Ben Langdon, Auckland, for the Appellant

Counsel: S Moore, Auckland, for the Appellant

MITCHELL v NZ POLICE [2020] NZHC 440 [9 March 2020]

[1] On 13 November 2018, Sarah-Jane Francis Mitchell pleaded guilty to one charge of wilful damage. On 29 March 2019, she pleaded guilty to one charge of assault arising out of the same incident.

[2] On 1 November 2019, Judge J C Down declined Ms Mitchell’s application for a discharge without conviction. On the charge of assault, the Judge convicted Ms Mitchell and ordered her to pay emotional harm reparation of $1,000 and reparation of $2,196 for damage to a television set. On the charge of wilful damage, he convicted and sentenced Ms Mitchell to 40 hours’ community work.

[3] Ms Mitchell now appeals against the decision of Judge Down to refuse a discharge without conviction.

Factual background

[4] At about 10.00 am on Sunday, 7 October 2018, the appellant went to a Birkdale address, being the residential address of Mr J, who is described in the agreed summary of facts as the appellant’s ex-partner. He was present at the address together with a female friend, who was the victim of the assault.

[5] The appellant entered the property and approached Mr J and the victim in Mr J’s bedroom. The appellant intentionally scratched the victim and pulled her hair. On leaving the property she knocked the television set in the lounge, causing damage to the screen. She also picked up an empty alcohol glass bottle and threw it in the direction of Mr J. The bottle missed him and hit the front door, causing a hole in the glass panel. The appellant then left the scene in her vehicle. The victim received multiple deep scratches to the left side of her body and scratches on her back.

District Court decision

[6] At the outset of his decision,1 the Judge commented that there was some discussion as to the precise terms of the summary of facts and what could properly be inferred from the summary. He noted that, quite properly, counsel for the appellant

1 Police v Mitchell [2019] NZDC 21792.

invited the Court to adhere strictly to the agreed summary of facts and not go outside of it or draw inferences that were improper.

[7] The Judge recorded counsel’s instructions that, although the agreed summary of facts…

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 Mitchell v Police

Details

AGLC: Mitchell v Police [2020] NZHC 440
Case: [2020] NZHC 440
Decision Date: 9 March 2020

CaseChat Overview and Summary

Sarah-Jane Mitchell appealed against the decision of Judge Down, who had declined her application for a discharge without conviction. Mitchell had been convicted of wilful damage and assault following an incident at her ex-partner’s residence. The primary issue before the court was whether Judge Down erred in his assessment of the evidence and the consequences of conviction. The court considered whether the Judge's findings on the status of the relationship between Mitchell and her ex-partner, and whether Mitchell entered the property uninvited, amounted to a miscarriage of justice. Additionally, the court examined whether Judge Down correctly assessed the consequences of the conviction on Mitchell's future career prospects.

The court found that the Judge did not err in his assessment of the evidence. Regarding the relationship status, the court noted that the Judge had relied on the agreed summary of facts, which described the parties as ex-partners. Although Mitchell argued that the relationship was ongoing, this was not reflected in the agreed summary of facts. The court also found that the issue of whether Mitchell entered the property uninvited was ultimately immaterial to her culpability. Concerning the consequences of the conviction, the court held that the Judge did not err in his assessment. While the court acknowledged the social stigma associated with a conviction, it was hesitant to usurp the role of professional bodies in assessing an individual's suitability for a particular career. The court found that there was insufficient evidence to suggest that the convictions would have a detrimental impact on Mitchell's future career as a real estate agent or lawyer.

The appeal was dismissed, and Mitchell's convictions for wilful damage and assault were upheld.

Orders