FIELDING v POLICE [2020] NZHC 2728

FIELDING v POLICE [2020] NZHC 2728 [16 October 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2019-485-000611[2020] NZHC 2728UNDER the Judicial Review Procedure Act 2016IN THE MATTER OF review of decisions made by variouspolice officersBETWEEN ALISOHN JOAN FIELDINGApplicantAND NEW ZEALAND POLICERespondentHearing: 24 September 2020Appearances: A J Fielding in PersonS B McCusker for the RespondentJudgment: 16 October 2020JUDGMENT OF EDWARDS JThis judgment was delivered by me on 16 October 2020 at 12.00 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors: Luke Cunningham Clere, WellingtonCopy To: A J Fielding, Paraparaumu[1] The applicant, Ms Fielding, challenges the lawfulness of three actions byKāpiti police. These are:(a) the issuing of a pre-charge warning on 24 March 2017 (the pre-chargewarning);(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 ongoinginvestigation into criminal harassment by Ms Fielding (the searchwarrant).[2] The steps taken by police followed complaints by Ms Fielding's formerpartner, and his new girlfriend.1[3] Ms Fielding was convicted in the District Court of wilfully trespassing on herformer partner's property on 13 January 2018. She was subsequently dischargedwithout conviction on appeal.[4] The challenge proceeds by way of judicial review. The police say the decisionsto 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 itinvalid.The pre-charge warning[5] On 25 January 2017, Constable Stewart received a complaint fromMs Fielding's former partner regarding a trespasser on his property at Raumati Beachon 5 January 2017. The complainant indicated that he believed the trespasser to beMs Fielding, and also said that he had been subject to numerous acts of harassmentsince that day.1 These steps also form the basis of a civil claim by Ms Fielding against the police officersconcerned for alleged misfeasance in public office.[6] On 7 February 2017, Constable Stewart, acting under the complainant'swritten authority, served Ms Fielding with a trespass notice warning her to stay off thecomplainant's property at Raumati Beach.[7] Further complaints were made about an individual believed to be Ms Fieldingtrespassing on the same property. These included an individual recorded on closedcircuit television (CCTV) cameras entering onto the property at 11.43 pm on16 February 2017. And, on 3 March 2017, the complainant's garage door wassmeared with dog faeces, and an individual, believed to be Ms Fielding, was recordedwalking past his garage door with a dog four times that afternoon.[8] Further complaints were made in early March 2017 about incidents in lateFebruary and early March. On 24 March 2017, Ms Fielding was interviewed at theKāpiti police station and denied any involvement in the alleged trespasses on16 February and 3 March 2017. She was advised of her rights under the New ZealandBill of Rights Act 1990. At the end of the interview, she signed the Constable'shandwritten notes confirming she had read them, and that they were accurate.[9] At the conclusion of the interview, she was advised by Constable Stewart thatshe 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 shewas being held in legal custody.[10] After conferring with Constable Stewart, Senior Sergeant Chanel Chapmanthen 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 herfingerprints and photographs as part of the process but agreed to return the followingday. She did not return.[11] There is no statutory basis for a pre-charge warning. An affidavit filed onbehalf of the police says that the overall purpose of a pre-charge warning is to hold anoffender to account and to deter them from further offending. The decision to issue apre-charge warning is an exercise of the prosecutorial discretion.[12] In Osborne v Worksafe New Zealand, the Court of Appeal said that the exerciseof a prosecutorial discretion is justiciable, but the intensity of review and theavailability of relief will be constrained.2 That is due to reasons such as the importanceof observing constitutional boundaries between the executive and the judiciary and thehigh content of judgment and discretion in prosecutorial decisions.3[13] This means that relief or intervention by the Courts is only likely to be grantedin "exceptional" cases, particularly where the prosecutorial decision is to prosecute.4Points of intervention could include whether discretion to prosecute had beenabdicated, where there had been a failure to consider relevant considerations, or whereirrelevant considerations have been taken into account.5 These findings were notchallenged on appeal to Supreme Court.6[14] Ms Fielding's challenges to the decision to issue a pre-charge notice may begrouped 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 fabricatedbecause it records that she admitted the offence after being charged when that was nottrue. That statement is found in Constable Stewart's case summary report whichMs Fielding obtained under the Privacy Act 1993. Constable Stewart does not,however, repeat this statement in his sworn affidavit filed in opposition to theapplication.[16] While Ms Fielding's challenge is understandable in the circumstances, theaccuracy 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 dependson the events leading up to that decision, and not what happened after the notice wasissued. The events leading up to the decision, including the fact that Ms Fieldingdenied the offence, are recorded in a handwritten statement which Ms Fielding signed2 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 thereis no reason to doubt the credibility and reliability of that evidence.[17] For completeness, I record that Ms Fielding makes other allegations ofinaccuracies or fabrications in Constable Stewart's account. For example, she saysthat Constable Stewart selected that he had completed fingerprinting and photographicevidence when completing the charge sheet. That is not correct. In fact, the chargesheet records that the fingerprints, photographs, and DNA evidence were not taken atthe time as Ms Fielding was not feeling well. Similarly, Ms Fielding says she wasunaware that she was arrested or read her rights. But, the contemporaneous notes ofthe interview, which Ms Fielding signed, records that Ms Fielding was told of herrights 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 extremelyserious allegations against Constable Stewart, such as obstruction of justice andinterference and tampering with evidence. There is absolutely no foundation to thoseallegations at all. They should not be entertained by this Court and I spend no furthertime considering them.[19] Second, Ms Fielding challenges the decision to issue a pre-charge warning onthe basis that the complainant's property was not an "enclosed yard". As I understandher submissions, she makes two points in this regard.[20] The first point she makes is a factual challenge to the basis upon which thenotice was issued. She says she was not on the complainant's property, but on thepublic accessway which runs adjacent to that property. However, Constable Stewart'sevidence refers to CCTV footage which gives good reason to suggest otherwise. I amsatisfied that there is a sufficient factual foundation for the issuing of the pre-chargenotice.[21] The second point she makes is legal in nature. She says that the property is notan "enclosed yard". That is because it was not fenced at either end. That argument ispremised on a literal interpretation of the meaning of "enclosed". But in Hewson vPolice, this Court confirmed that the meaning of "enclosed" includes:7[C]onstructions or plantings, or any other form of physical delineationincluding, for example, concrete edgings, not necessarily continuous, whichare sufficient to convey to a reasonable person that members of the public assuch were intended to be excluded.[22] It is clear from the CCTV stills provided in evidence that there were featuresof the complainant's property that physically delineated it as private property. Thecomplainant's property was therefore an "enclosed" yard and this submission cannotsucceed.[23] The third ground of challenge to the issue of a pre-charge warning isMs Fielding's belief that it influenced the Judge's decision to subsequently convicther of wilful trespass. However, there is no indication that the pre-charge warning wasrelied on (as opposed to just referred to) in the decision to subsequently convictMs Fielding for wilful trespass on 2 July 2018. More significantly, Ms Fielding wassubsequently discharged without conviction on appeal to this Court.8 I note that thejudgment of this Court records that Ms Fielding acknowledged trespassing on toMr McIntyre's property on 13 January 2018 and that she claimed this was a "spur ofthe moment decision".9[24] There is no basis to challenge the decision to issue a pre-charge warning andthis ground of review must be dismissed.The harassment notice[25] On 3 January 2018, Ms Fielding's former partner gave a statement to policethat from 22 October 2017 to 30 December 2017, Ms Fielding had committednumerous 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 forcriminal 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 thatMs 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 servedwith the harassment notice, and charged with wilful trespass for the trespass on to thecomplainant's property on 13 January 2018.[28] As with pre-charge warnings, there is no statutory basis for written warningsissued by police for criminal harassment. The decision to issue the harassment noticeis also the exercise of prosecutorial discretion and, as explained earlier, the decision isreviewable albeit only in limited circumstances in accordance with the deferenceaccorded to police decision-making.[29] I am satisfied that the decision to issue the harassment notice in thecircumstances was a lawful and reasonable one. It followed a review of CCTV footageshowing an intruder on or around the complainant's property. Given Ms Fielding'sprior history with the complainant, there were reasonable grounds to believe that theoffender was Ms Fielding, and the notice was issued accordingly.[30] Ms Fielding alleges that the information relied upon for the harassment noticewas 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 obligationon the police to consult with Ms Fielding before serving the harassment notice onher.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 noticehad been prepared on 12 January 2018 prior to the date of the trespass on 13 January2018.10 White v Attorney-General [2020] NZHC 740 at [62].[32] This submission proceeds on a misapprehension of the sequence of events. Asexplained in the affidavit of Constable McCardle, the harassment notice was draftedon 12 January 2018 in response to earlier complaints recorded in a statement of thecomplainant dated 3 January 2018. It was not served until 15 January 2018 whenMs 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 madeto sign the harassment notice under duress. The harassment notice was a warning anddoes not require the recipient to sign it. Ms Fielding subsequently clarified that thedocument she allegedly signed under duress was her notice of police bail, not theharassment notice. The police obviously deny any allegation of duress in relation tothis notice also, but, in any event, it falls outside the scope of the current applicationfor judicial review.[34] Allegations regarding improper conduct in the arrest for wilful trespass are notrelevant to the current judicial review application. I simply record that the allegationshave been reviewed by the Independent Police Conduct Authority and dismissed andthey are strongly denied by the Constables involved.[35] Finally, as with the pre-charge notice, there is no basis to say that theharassment notice was used as evidence in her wilful trespass trial or influenced theJudge in any way.The search warrant[36] On 18 March 2019, the police received a complaint from the girlfriend ofMs Fielding's former partner. She alleged that she and her mother had been receivingletters and Facebook messages from various people under pseudonyms containingallegations and warnings about Ms Fielding's former partner.[37] On 25 March 2019, the police applied for a search warrant to searchMs Fielding's residence. It was issued and executed the same day. Various electronicdevices were uplifted pursuant to the search warrant.[38] The following day, 26 March 2019, the police were advised by Ms Fielding'sthen counsel that the devices contained legally privileged material and requested thatthe seized devices be secured pursuant to s 147 of the Search and Surveillance Act2012. The devices were subsequently placed into police storage, and have not beenaccessed since.[39] In Attorney-General v Gill, the Court of Appeal said that judicial review shouldrarely 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 Judicialreview of a search warrant will only be permissible: 12 where the defect in a search warrant is of a fundamental nature, where thematter could be said to go the jurisdiction of the issuing officer, or where someother ground of lawfulness (such as want of jurisdiction) can be established.[40] Ms Fielding alleges that Sergeant Stonehouse breached his duty of candour byomitting to state that the complainant was "currently under investigation for sexualassault" 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 statementsmade in correspondence to the complainant's girlfriend. Obtaining evidential materialas 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 warrantapplication. Accordingly, there could be no breach of candour in failing to mentionprior complaints made by Ms Fielding about the complainant. In any event, the natureof those complaints was set out in the correspondence annexed to the search warrantapplication, 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 groundsthat it relied upon the harassment notice. However, as the search warrant applicationmakes clear, it was not predicated on the acts of harassment referred to in that noticebut rather Facebook messages, letters and emails sent to the complainant's girlfriendnearly a year later. Other claims, such as the "signing" of the harassment notice underduress have been dealt with under that heading and there is no need to repeat thoseclaims here.[43] Further, there were reasonable grounds for believing that the search ofMs Fielding's residence would reveal evidence of criminal harassment. The nature ofthe correspondence, and the history between the parties, was more than enough tojustify the issue of the search warrant.[44] Finally, Ms Fielding seeks the return of the seized devices. The police say theyhave made numerous attempts to return the seized devices subject to the ability tomake 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 thatshe has not withdrawn her claim of privilege. It appears that the dispute has reachedsomewhat of a stalemate although Ms Fielding did appear to suggest that she mayconsent to cloning of the devices if there was agreement on the entity responsible forthat cloning.[46] There is an ongoing criminal investigation in relation to the matters the subjectof the search warrant application. In light of that ongoing criminal investigation, I donot consider it appropriate to make substantive orders in the context of a judicialreview claim requiring the return of the seized devices to Ms Fielding. I simply notethat there is the power to make the clones under the provisions of the Search andSurveillance 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 whichwould 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 pagesin length may be filed within 15 working days of this judgment. Ms Fielding shallhave 10 working days to respond thereafter. Costs shall be determined on the papersunless ordered otherwise.___________________Edwards J