BLOMFIELD v NEW ZEALAND POLICE [2018] NZCA 180

BLOMFIELD v NEW ZEALAND POLICE [2018] NZCA 180 [5 June 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA603/2017[2018] NZCA 180BETWEEN ANGELA MAE BLOMFIELDAppellantAND NEW ZEALAND POLICERespondentHearing: 17 May 2018Court: Asher, Venning and Mander JJCounsel: Appellant in PersonE J Hoskin for RespondentJudgment: 5 June 2018 at 11 amJUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Venning J)[1] On 11 April 2017 Angela Blomfield was found guilty of one charge of trespassfollowing a judge-alone trial in the District Court.1 Judge Maude convicted anddischarged her. Ms Blomfield appealed against conviction. Fitzgerald J dismissed theappeal in a judgment delivered on 3 October 2017.2 Ms Blomfield now seeks leaveof this Court to bring a second appeal against conviction.1 Police v Blomfield [2017] NZDC 9225.2 Blomfield v Police [2017] NZHC 2414.Factual background — the contest between the parties[2] Ms Blomfield and Mr Thomas Aldridge, the first complainant, have beenseparated for over 12 years. They have two children together. Since separation theyhave shared care of the children to varying degrees. The children are now teenagers.The second complainant, Dianne Spriggs, is Mr Aldridge's partner. They shared ahome, which is where the children were living at the time of the offending (theProperty).[3] Ms Blomfield and Mr Aldridge's relationship has been strained for a numberof years. Because of the difficulties Ms Blomfield was served with a trespass noticewarning her to stay off the Property. As Ms Blomfield still had contact with thechildren she had to wait outside the Property to collect them on the occasions she sawthem.[4] On 20 January 2017 Ms Blomfield drove to the Property on a matter relatingto one of the children. She arrived at the Property in her car at about 6.30 pm. Thecomplainants said that Ms Blomfield drove her vehicle onto the driveway of theProperty. This blocked Ms Spriggs' car. There was then a verbal altercation betweenMs Blomfield, Mr Aldridge and Ms Spriggs. Ms Blomfield left the Property to pickup one of the children and later returned to the Property. The complainants said sheagain parked her car half on the driveway and half on the footpath. There was a furtheraltercation. Ms Spriggs called 111 from inside the Property before Ms Blomfielddrove away.The District Court trial[5] Ms Blomfield accepted that she had been served with a trespass notice. Thesole matter to be determined in the District Court trial was whether Ms Blomfield'scar was parked on the Property and therefore whether she had committed trespass.Ms Blomfield gave evidence that her car was parked on the footpath at the foot of thedriveway, but not on the driveway itself. Mr Aldridge's and Ms Spriggs' evidence wasthat Ms Blomfield's car was partially on the footpath and partially on the driveway ofthe Property.[6] Judge Maude identified the sole question for him to determine was whether MsBlomfield's car with her in it was driven onto part of the Property on 20 January 2017.Ultimately the Judge accepted the evidence of Mr Aldridge and Ms Spriggs and wassatisfied beyond reasonable doubt that Ms Blomfield's car was, at least in part, on thedriveway of the Property. He found the charge proved.The High Court appeal[7] In her appeal to the High Court Ms Blomfield argued that the District CourtJudge did not consider her submissions and was wrong to accept Mr Aldridge's andMs Spriggs' evidence in preference to hers. Ms Blomfield argued:3(a) Mr Aldridge's oral evidence was unreliable given he did not want toanswer questions and had to be prompted by the Judge at times toanswer questions.(b) If Ms Blomfield had, in fact, parked on the driveway, Mr Aldridgewould have taken a photo. The absence of any photographic evidenceweighs against Mr Aldridge's credibility.(c) Given the length of the driveway, the complainants' evidence aboutthe position of the cars could not be correct.(d) There was no reason for Ms Blomfield to park the car on the drivewaygiven she was aware of the trespass order and its consequences.[8] Ms Blomfield sought to adduce further evidence and material for her appeal tothe High Court. The further evidence included:(a) annotated notes of the evidence from the District Court;(b) information, maps and digital readings and measurements of thedriveway and cars;(c) emails between the parties; and(d) documents relating to a protection order.3 At [14] (footnote omitted).[9] Fitzgerald J considered that the annotated notes of evidence provided by MsBlomfield took the form of submissions rather than new evidence. The evidence ofthe application for the protection order was credible and fresh but, as the Judge noted,it was not particularly relevant or probative of a matter at issue. With the exception ofone email the Judge concluded the emails were not material. The exception was anemail in which Mr Aldridge told Ms Blomfield he had a photo of her car parked onthe driveway. During the District Court trial Mr Aldridge had denied sending the emailand effectively denied taking a photo of Ms Blomfield's car. Ms Blomfield had notformally adduced the email as evidence.[10] The Judge ruled the further evidence concerning the dimensions of theProperty's driveway, the lengths of the various cars and positions on the driveway wasnot fresh evidence.[11] Fitzgerald J then thoroughly reviewed the evidence before the District Court.She noted the advantage the trial Judge had in assessing credibility. While acceptingthat Mr Aldridge may have lied when he denied sending the email, Fitzgerald J wassatisfied that there had been no error by the trial Judge, and accordingly no miscarriageof justice.4 For those reasons Fitzgerald J dismissed the appeal.5This application for leave[12] Ms Blomfield now seeks leave to bring a second appeal. Section 237 of theCriminal Procedure Act 2011 applies:237 Right of appeal against determination of first appeal court(1) A convicted person may, with the leave of the second appeal court,appeal to that court against the determination of the person's firstappeal under this subpart.(2) The High Court or the Court of Appeal must not give leave for asecond appeal under this subpart unless satisfied that—(a) the appeal involves a matter of general or public importance;or4 At [52].5 At [53].(b) a miscarriage of justice may have occurred, or may occurunless the appeal is heard.[13] Clifford J directed that Ms Blomfield's application for leave was to bedetermined separately from the appeal.6[14] Ms Blomfield addressed the Court in support of her application. She submittedthat Mr Aldridge had been proved to have lied. The case then became an issue ofcredibility between her evidence and the evidence of Ms Spriggs. She submitted thatgiven the conflict between their evidence the charge could not have been provedbeyond reasonable doubt. Ms Blomfield emphasised that her practice was to park onthe footpath and she had no reason to park on the driveway.[15] Ms Blomfield also explained the recent steps she had taken to obtain furtherevidence from a neighbour she believed have witnessed the incident. Her attemptswere unsuccessful.Discussion[16] No question of general or public importance arises on the proposed appeal.[17] Ms Blomfield seeks to argue that a miscarriage of justice will occur unless herappeal is heard (and granted). The difficulty for Ms Blomfield is that she still seeksto revisit the factual findings of the District Court and Fitzgerald J's review of them.As Fitzgerald J observed, the District Court Judge had the advantage of seeing andhearing the witnesses.7 That is an important advantage in a case like this where theissue was one of credibility and reliability of witnesses. As noted the evidence wasthen extensively and thoroughly reviewed by Fitzgerald J in the High Court.[18] All relevant matters that Ms Blomfield seeks to raise were raised before theDistrict Court and the High Court. While Ms Blomfield may still feel aggrieved byher conviction she has not been able to identify any miscarriage of justice that wouldsupport an appeal.6 Blomfield v Police CA603/2017, 12 February 2018 (Minute of Clifford J).7 Blomfield v Police, above n 2, at [44].Result[19] The application for leave to appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent