Blomfield v New Zealand Police [2017] NZHC 2414

Blomfield v New Zealand Police [2017] NZHC 2414 [3 October 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2017-404-250[2017] NZHC 2414BETWEEN ANGELA MAE BLOMFIELDAppellantAND NEW ZEALAND POLICERespondentHearing: 2 October 2017Counsel:Appearance:AE Minogue for respondentAM Blomfield, appellant in personJudgment: 3 October 2017JUDGMENT OF FITZGERALD J[As to appeal against conviction]This judgment was delivered by me on 3 October 2017 at 4 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateSolicitors: Meredith Connell, AucklandTo: A Blomfield, AucklandIntroduction[1] On 11 April 2017 Angela Blomfield was found guilty of one charge of trespass after warning to stay off following a judge-alone trial in the District Court.1That offence carries a maximum penalty of imprisonment for a term not exceeding 3 months, or a fine not exceeding $1,000.2 She was subsequently convicted and discharged.3[2] Ms Blomfield now appeals against her conviction.Factual background[3] Ms Blomfield separated from Thomas Aldridge, the complainant, around 12 years ago. Ms Blomfield and Mr Aldridge have two children together, and since their separation they have shared care of the children to varying degrees. The two children are now 19 and 16 years old. The second complainant, Dianne Spriggs, isMr Aldridge's current partner. She and Mr Aldridge share a home, which is wherethe children were living at the time of the offending (the "Property").[4] Ms Blomfield and Mr Aldridge's relationship has been strained since theirseparation. On 24 October 2016, Ms Blomfield was served with a trespass notice warning her to stay off the Property. It appears that the context to this was that, during this period, Ms Blomfield, frequently drove to the Property and stopped outside to collect or see the children. I should stress, however, that there is no suggestion that Ms Blomfield trespassed on the Property other than the one instance that is the subject of this appeal.[5] On 20 January 2017, Ms Blomfield drove to the Property on a matter relating to one of the children. She arrived at the Property in her car at about 6.30 pm. She drove her vehicle to the foot of the complainants' driveway. This blocked inMs Spriggs' car. There was then a verbal altercation between Ms Blomfield and thecomplainants. Ms Blomfield left the Property in her car to pick up one of the children and then returned to the Property. Again, she parked her car at the foot of1 Police v Blomfield [2017] NZDC 9225.2 Trespass Act 1980, s 11(2)(a).3 Police v Blomfield [2017] NZDC 12788.the driveway and there was a further altercation. Ms Spriggs called 111 from inside the Property before Ms Blomfield drove away.[6] The sole matter to be determined at trial was whether Ms Blomfield's car was parked on the Property, and therefore whether she had committed trespass. Ms Blomfield maintained that her car was parked on the footpath at the foot of the driveway, but not on the driveway itself; Mr Aldridge and Ms Spriggs maintained that Ms Blomfield's car was partially on the footpath and partially on their driveway.District Court Decision[7] Judge S J Maude identified that the sole question for him to determine waswhether Ms Blomfield's car, with her in it, was driven onto a part of the Property on the night of 20 January 2017.4[8] Judge Maude heard evidence from Mr Aldridge, Ms Spriggs and Ms Blomfield. He noted that both Ms Spriggs' and Mr Aldridge's evidence was tothe effect that Ms Blomfield drove her car onto their driveway on two occasions thatnight. Ms Spriggs' evidence was that "well, seemed like half of the car was over the driveway and the other half was over the footpath". She had also given evidence that Ms Blomfield's car was (possibly) about a foot and a half behind Ms Spriggs'own car in the driveway.[9] Mr Aldridge said that Ms Blomfield's car was parked directly behindMs Spriggs on the driveway, though did not give particular details as to how far behind. However, in cross-examination, he estimated that Ms Blomfield's car was "close enough to be almost touching [Ms Spriggs'] car". Ms Blomfield put to him that it could be five to 10 centimetres, to which Mr Aldridge said "okay let's go five to 10 centimetres." Ultimately Mr Aldridge's evidence was that the front portion ofthe car was on the Property's driveway without being able to specify how much ofthe car might have been on the footpath.4 Police v Blomfield, above n 1, at [4].[10] Ms Blomfield's evidence was that she had not parked on the driveway, in partor at all.[11] Judge Maude noted that Mr Aldridge and Ms Spriggs lived together and could have corroborated and given identical evidence. However, and as the above summary as to their recollections as to the positioning of the cars on the driveway demonstrates, their evidence was consistent on key issues, but not identical. The Judge considered that this added to their credibility.5 For that reason, Judge Maude ultimately accepted the evidence of Mr Aldridge and Ms Spriggs. He wasaccordingly satisfied beyond reasonable doubt that Ms Blomfield's car was, at least in part, on the driveway of the Property.[12] The Judge also noted that the appellant, who represented herself, struggled at times to determine what questions were relevant during cross-examination. Judge Maude reminded Ms Blomfield, Mr Aldridge and Ms Spriggs several times that he was unable to resolve wider family disputes.6Appellant's submissions[13] Ms Blomfield is self-represented. In essence, she appeals on grounds that Judge Maude did not consider her submissions, and wrongly accepted Mr Aldridge's and Ms Spriggs' evidence over her own.[14] In particular, she raises the following points on appeal:(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 to answer questions.(b) If Ms Blomfield had, in fact, parked on the driveway, Mr Aldridge would have taken a photo. The absence of any photographic evidenceweighs against Mr Aldridge's credibility.5 Police v Blomfield, above n 1, at [14]–[15].6 Police v Blomfield, above n 1, at [3]–[5].(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 driveway given she was aware of the trespass order and its consequences.7Respondent's submissions[15] The Police, represented by Ms Minogue, oppose the appeal. Ms Minogue submits that the appeal should be dismissed as:(a) the trial Judge heard all the evidence and made credibility findings that ought not be disturbed on appeal; and(b) no factor raised by the appellant on its own or cumulatively amounts to a miscarriage of justice.Approach to appeal[16] Under s 232 of the Criminal Procedure Act 2011, a first appeal court may allow an appeal against the outcome of a judge-alone trial only if the judge "erred inhis or her assessment of the evidence to such an extent that a miscarriage of justicehas occurred", or if "a miscarriage of justice has occurred for any reason".[17] Not every error constitutes a miscarriage of justice.8 For a miscarriage of justice to have occurred, the error or irregularity must either create a real risk that the outcome of the trial was affected in that a not guilty or more favourable verdict might have been delivered if nothing had gone wrong, or have resulted in an unfair trial or a nullity.97 Ms Blomfield also purported to make further submissions by way of an email to the Case Officer the day after the appeal hearing. I have not taken those matters into account. The matters raised were not submissions made at the hearing; have not been copied to the respondent; and are more akin to an attempt to give further evidence (rather than submissions) in any event.8 Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].9 Criminal Procedure Act 2011, s 232(4); R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 (SC) at [110].[18] An appeal against conviction is a general appeal. The appellant is therefore entitled to judgment in accordance with the independent opinion of the appellate court, which must make its own assessment of and form its own opinion on the facts.10 But the appellant bears the onus of persuading the appeal court that the judgment under appeal is in error.11[19] Further, in coming to its own judgment, the appeal court will pay appropriate deference to the findings made by the trial judge who had the benefit of seeing and hearing witnesses give evidence.12 The appeal court should therefore exercise caution where facts found by the trial judge turn on issues of credibility.13 The advantages of the trial judge in assessing the credibility and reliability of evidence are obvious, as the Court of Appeal pointed out in Rae v International Insurance Brokers (Nelson Malborough) Ltd:14As the evidence unfolds the trial Judge gains an impression from the evidence which is not necessarily or usually apparent from the cold typeface of the transcript of that evidence on appeal. The Judge forms a perception of the facts in issue from which he or she adds or subtracts further facts as witnesses give their evidence, and so obtains as complete a picture as is possible of the events in issue. The Judge perceives firsthand the probabilities inherent in the circumstances traversed in the evidence and can obtain a superior impression of those probabilities as a result.Admission of further evidence on appeal[20] Ms Blomfield attached a number of additional documents to her appeal submissions. As well as material available to the District Court Judge at first instance, these include:(a) Annotated notes of evidence, in which Ms Blomfield highlights answers and inconsistencies she considers support her position, and provides responses and commentary to statements from witnesses;10 Austin, Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].11 Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [30].12 Green v Green, above n 10, at [30].13 Austin, Nichols & Co Ltd v Stichting Lodestar, above n 9, at [13]; Kueh v R [2013] NZCA 616 at [32].14 Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at 199, cited in Green v Green, above n 10, at [31].(b) Information, maps and digital renderings as to the length and position of the driveway and the cars, which Ms Blomfield submits show thatthe complainants' evidence as to the position of her car on thedriveway cannot be correct.(c) Emails between Ms Blomfield and the complainants to demonstrate the nature of the relationship between Ms Blomfield and Mr Aldridge.(d) Documents relating to Mr Aldridge and Ms Spriggs' successfulapplication to the Family Court for a protection order.15[21] Ms Minogue for the Crown submits that the Court should not accept the further evidence as it is not fresh or cogent. Regardless, she submits that the evidence is not prejudicial as it does not indicate that the conviction should be overturned in any event.[22] An appeal court may receive evidence not considered at trial under s 335 ofthe Criminal Procedure Act 2011 "if it thinks it necessary or expedient in the interests of justice".16 The principles to be applied in determining such applications are well settled. An appellant who wishes to provide new evidence must demonstrate that the new evidence is fresh and credible.17 Ordinarily, if the evidence could have been called at the trial with reasonable diligence, it will not qualify as sufficiently fresh. Further, the evidence must also be helpful in resolving the issues to be determined on the appeal.18 However, the overriding consideration is always the interests of justice.15 At the appeal hearing itself, Ms Blomfield also sought to introduce even more new evidence, including a letter from her son as to, it seems, her usual practice when coming to collect him from the Property. However, I did not accept that material, as it was not fresh, and was not purported to be presented in the form of evidence in any event (ie given by her son in the witness box and subject to cross-examination), rather than simply a letter to be handed up to the Court.16 Criminal Procedure Act 2011, s 335(2)(a)–(c).17 R v Bain [2004] 1 NZLR 638, (2003) 20 CRNZ 637 (CA) at [22], approved in Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34]; Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [116]–[118].18 Simon France (ed) Adams on Criminal Law – Procedure (looseleaf ed, Thomson Reuters) at [CPA.335.02(4)(a)]; R v Baker [1976] 1 NZLR 419 at 420.[23] Prior to the hearing, I read and considered all of the further material which Ms Blomfield wished to advance. As I noted in the hearing, I permitted Ms Blomfield to speak to the additional material, and noted that I would address the admissibility of it in my judgment.[24] I consider that the annotated evidence provided by Ms Blomfield largely takes the form of submissions rather than new evidence, and so there is no issue as to admissibility.[25] The evidence of the recent application for protection order is credible and fresh, as the Temporary Protection Order was granted by a Family Court Judge on 30May 2017, after Ms Blomfield's conviction in the District Court. It is not, however,particularly relevant or probative of a matter at issue. I nevertheless confirm the admissibility of that material (though the weight I give to it is a separate matter).[26] Most of the emails Ms Blomfield sought to introduce on the appeal are fresh, as they have been exchanged since trial, with one exception which I will discuss shortly. The Crown, however, raises issues about the credibility of the fresh emails, given the absence of context or confirmation of their source. In my view, those objections are legitimate. The emails would need to be introduced in evidence and it would only be fair to have enabled Mr Aldridge an opportunity to respond to what is said in the emails. But even putting those matters aside, in my view, the emails are not material to the appeal in any event, in terms of being of helpful in resolving the core issue on this appeal, namely whether the Judge was correct in his assessment of the evidence that Ms Blomfield did drive her car at least in part onto the driveway at the Property. Rather, they merely provide some general evidence of the ongoing difficult nature of the relationship between Ms Blomfield and the complainants. The antagonistic nature of that relationship was already clear from the evidence at trial. I accordingly conclude that these emails are not admissible on this appeal.[27] Some evidence is not fresh. This includes the 26 January 2017 email from Mr Aldridge to Ms Blomfield, in which Mr Aldridge told Ms Blomfield he had a photo of her parked on the driveway. Ms Blomfield was clearly able to provide this evidence at trial; in fact she had it on her and provided a copy to the Judge, and put itto Mr Aldridge in cross-examination, but did not formally produce it as evidence. Nevertheless, Mr Aldridge plainly had an opportunity to respond to that email at the hearing, and I take into account that Ms Blomfield was representing herself at the hearing. This no doubt explains the reason why she did not formally produce this email during the course of her evidence. I accordingly rule that particular email as admissible on this appeal.[28] The remaining new evidence is detailed documentary materials demonstrating the dimensions of the Property's driveway, the length of the variouscars and their positioning on the driveway. This could easily have been provided at trial. Admission of detailed evidence such as this in the interests of justice is rare, asto do so "would be effectively to allow a re-run of the trial on a different basis".19 I note that leeway is often given to litigants in person, in terms of formal court procedures, but this ought not, in my view, extend to permitting detailed and new evidence to be advanced on an appeal which could have been advanced at trial.Moreover, I note the general thrust of this material (namely that the complainants'evidence as to the various distances between the cars on the driveway could not be correct) was put by Ms Blomfield to the complainants in cross examination in any event. I accordingly rule this further evidence inadmissible. For completeness, and for reasons that will become apparent later in this judgment, I do not consider that this particular evidence would have had a material impact on the outcome of the trial in any event.The evidence at trial[29] The evidence led at trial was limited to the oral evidence given by Ms Spriggs, Mr Aldridge and Ms Blomfield.[30] Ms Spriggs stated that she returned home from the supermarket and pulled into her driveway, and that Ms Blomfield pulled in behind her, yelling at her. Ms Spriggs ignored the yelling but walked into the house. Mr Aldridge came out of the house and talked to Ms Blomfield. At some point Ms Spriggs noticed19 Kingi v R CA122/05, 10 August 2005 at [68].Ms Blomfield had left the driveway, so she went to collect her stepson from a music lesson.[31] Ms Spriggs later returned home, having found that Ms Blomfield had already picked him up from the lesson, and pulled into her driveway again. She stated she pulled up towards the garage as she usually did, "so a couple of feet" from thegarage. Ms Blomfield's car was parked on the road, but she pulled into the drivewayafter Ms Spriggs had driven in. As noted earlier, Ms Spriggs said Ms Blomfield's car was "possibly another you know, um, a foot, foot and a half" behind her car. As also noted above, she said that it "seemed like half of the car was over the driveway, and the other half was over the footpath".[32] While Mr Aldridge spoke to Ms Blomfield, Ms Spriggs went into the house and called 111. While she was on the telephone, Ms Spriggs moved to a front bedroom with one of her stepsons. From that bedroom, she said, she could visiblysee the driveway and therefore the car's number plate which her stepson read aloud.She said that they would not have been able to see the number plate from the window if the car were not on the driveway.[33] Mr Aldridge gave evidence that when Ms Spriggs went to the car to pick upher stepson from a music lesson, there was a "ruckus" that happened by the carinvolving "aggressive language". Mr Aldridge said that Ms Blomfield had parked "right behind Dianne, and wouldn't let her get out of our own driveway. So her car was directly on our driveway behind Dianne's". Mr Aldridge went to the driveway to talk to Ms Blomfield, and eventually both cars left. Mr Aldridge went back inside.[34] Later he heard "all sorts of commotions" outside the house again, so he wentback outside. Mr Aldridge stated that Ms Spriggs had driven in, and Ms Blomfield"pulled up behind her again into my driveway".[35] In cross-examination, Mr Aldridge was somewhat combative, at timesanswering Ms Blomfield's questions about the distance between cars or degree of intrusion on the driveway or footpath, with comments such as "I don't think thatmatters", "I'm not listening to that part", and "That's irrelevant", and instead reiterating his certainty that the front part of Ms Blomfield's car was on the Propertyand the back part on the footpath. The Judge intervened three times to tell Mr Aldridge to answer questions relating to the position of the cars, as well as other times to instruct the two not to talk at the same time, to limit irrelevant questions, or to curtail discussion of personal matters.[36] When asked about the distance between the cars in cross-examination, Mr Aldridge initially did not answer, saying "I don't think that matters what does matter is you were certainly on my driveway regardless. I can't remember exact measurements". When told to answer by the Judge, Mr Aldridge said Ms Blomfield's car was "close enough to almost be touching Dianne's car", and, as summarised earlier, accepted Ms Blomfield's suggestion that the car was five to10 centimetres from Ms Spriggs' car. In relation to where the back of the car was, Mr Aldridge said he was only interested in the front of the car, but:Based on where you were, not looking at the back of your car, the front of your car was within my, on my land, where the back end of the car waswasn't clear to me, but I'm guessing from the length of your car you mayhave been equal with the edge of the kerb, I don't know.[37] Later, Ms Blomfield clarified in the following exchange:Q. Tom hand on heart you seem to think that – are you saying that I was parked on the driveway and I wasn't parked at the end of the footpath area. I wasn't, I wasn't touch the road at all, are you tryingto say that?A. I'm telling you that your car was on the incline of my ramp whichmeans by default you were on my land, where the end part of the carwas I'm not 100% sure because I was only focussed on the frontend.[38] Cross-examination further centred on the email that Ms Blomfeld says Mr Aldridge sent her on 26 January 2017. In cross-examination Ms Blomfield quoted from the email, including that Mr Aldridge had written "we have a photo ofyou parked on the driveway. The police have a recording of the abuse and horntooting not to mention the neighbour who did approach you". Mr Aldridge in cross- examination replied:I don't recall writing that but if it's on there it would have only been a scare tactic for you, but that's about it.[39] Mr Aldridge then denied sending the email in the following exchange with Judge Maude:Q. Now what you are being asked to do is look at what is I'm told anemail and tell me whether that's an email that you sent toMs Blomfield?A. Do you know without going through my emails I couldn't confirmthat because that could actually be edited, and it appears to – I would not open an email without –Q. I don't want you to speculate I just want you to look at it and tell mewhether it is or whether it isn't?A. You know what I'm gonna say no.[40] As noted, Ms Blomfield did not later formally produce this email during the course of her evidence.[41] I consider it is certainly possible that Mr Aldridge sent the email, but then denied doing so when questioned about it. Ms Blomfield pointed to this in particular in her submissions on appeal. She submits this casts doubt on the credibility of the remainder of his evidence. However, I do not consider the fact that Mr Aldridge might have lied when confronted with the email means that his evidence as a whole ought to be disregarded. People often lie for different reasons, and if Mr Aldridgehad not taken a photo of Ms Blomfield's car on the night in question, but later told her that he did, that of course does not paint Mr Aldridge in a particularly good light. He may well have realised this, and sought to distance himself from the email as a result.[42] As to whether Mr Aldridge would have taken a photograph of the car had it actually been on the driveway, Mr Aldridge said:Quite frankly the first thing on my mind is not, "Ya ha ha I have you Angela", it's, "get off the property". She's a dangerous woman and I'mtrying to protect my family.[43] The final witness was Ms Blomfield, who gave brief evidence. She stated:All I was going to say was just to make a statement that I was not parked on the driveway.I was parked on the footpath area.Witness credibility[44] As will be evident from the above, the evidence largely turns on the credibility of the witnesses. I start from the position that I should pay appropriate deference to credibility findings made by Judge Maude. That is particularly important in this case as the evidence was clearly coloured by the difficult relationships between the witnesses, and there were many interruptions and disputes while evidence was given, particularly while Ms Blomfield was cross-examining the complainants. Further, as Ms Blomfield was representing herself, the Judge intervened perhaps more often than usual to guide Ms Blomfield and the other witnesses. To my mind this gave Judge Maude a considerable advantage in assessing credibility. He concluded that the evidence of Mr Aldridge and Ms Spriggs was credible and reliable given that it was natural and not overly precise, and given their evidence was broadly the same but not identical.20[45] I bear in mind Judge Maude's advantages when reviewing the evidencemyself. Ultimately, I do not consider the Judge fell into error when considering the overall content and tenor of the evidence. In particular, I find the record of Ms Spriggs' evidence to be credible. Her (broad) estimate of the position of the carson the driveway is believable. She acknowledged from the outset that her assessments of distance were approximate.[46] The transcript of Mr Aldridge's evidence shows his cross-examination did notprogress smoothly. At times he challenged or refused to answer Ms Blomfield'squestions. She also challenged his answers or repeated questions when she was not satisfied with his answer. Cross-examination digressed into personal matters. The Judge intervened multiple times.20 Police v Blomfield, above n 1, at [14]–[15].[47] Mr Aldridge's answers as to the distance between cars and the 26 January2017 email were somewhat elusive. As noted, Mr Aldridge does appear to have sent an email in which said he had taken a photograph of the car, when he had not. This was unwise. But as I have stated above, it does not itself demonstrate that Mr Aldridge's testimony that Ms Blomfield's car was on his driveway is incorrect. Moreover, Mr Aldridge has provided some explanation for his action, describing it asa "scare tactic". Again, this does not paint Mr Aldridge in the best light, but is anexplanation for his conduct.[48] Ms Blomfield submits that the need for Mr Aldridge to be prompteddemonstrates that he was not telling the truth. But to my mind Mr Aldridge'selusiveness and the need for prompting does not add much to the assessment of his evidence, except to emphasise the obvious animosity between him and Ms Blomfield (who was cross-examining him). All the evidence must be viewed in light of this difficult relationship. Judge Maude clearly recognised this in his decision.[49] By contrast, Ms Blomfield submits that she should have been consideredcredible given that she admitted to "the commotion" at the Property. However, I donot consider this adds materially to what is ultimately a determination on credibility of competing accounts of what happened at the Property on the evening in question.[50] Nor do I consider that the fact that Mr Aldridge did not take a photo of Ms Blomfield's car at the time points either way. I accept Mr Aldridge's explanationin evidence that his desire at the time was to get Ms Blomfield to leave the Property, not to try and catch her doing something wrong.Not logical behaviour[51] Finally, Ms Blomfield submits that there was no logical reason for her to park on the driveway given she was aware of the trespass order and its consequences. Quite clearly, however, tensions were running very high on the night in question. Given all the evidence, I am not satisfied that this factor means that thecomplainants' evidence ought to be disregarded.Result[52] Taking into account Judge Maude's assessment of credibility as well as my own assessment of the evidence, I am satisfied that there has been no error by the trial Judge, and accordingly no miscarriage of justice.[53] The appeal is dismissed.[54] I appreciate this is not the outcome Ms Blomfield desired. However, I record the dignified manner in which she conducted herself on the appeal, and her quite candid (and ultimately correct) assessment of the difficulties she faced in persuading me to adopt a different approach to the trial Judge in relation to what were ultimately core findings of credibility at trial.[55] I urge all parties concerned to seek to draw a line under this unfortunate incident.____________________S Fitzgerald J