Fielding v Police
[2024] NZHC 1455
•5 June 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2024-485-000033
[2024] NZHC 1455
BETWEEN ALISOHN FIELDING
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 21 May 2024 Counsel:
Appellant in person
M A Shaw for Respondent
Judgment:
5 June 2024
JUDGMENT OF LA HOOD J
Introduction
[1] Alisohn Joan Fielding (who has asked to be called Alisohn) was convicted by Judge N A Walsh following a Judge-alone trial on 4 December 2023 on charges of exceeding the applicable speed limit of 50 kilometres per hour (km/hr);1 resisting a constable acting in the execution of his duty;2 failing to stop when followed by red and blue flashing lights;3 and failing to give her name and address on demand, being the driver of a vehicle stopped.4
[2] On 26 March 2024, Judge Walsh sentenced Alisohn to pay $500.00 towards the cost of prosecution on the charge of resisting police (taken as the lead charge) and
1 New Zealand Police v Fielding [2023] NZDC 2723 [Decision under appeal].
2 Summary Offences Act 1981, s 23(a); maximum penalty three months’ imprisonment/$2,000 fine.
3 Land Transport Act 1998, s 52A(1)(a)(ii) and 114(2); maximum penalty $10,000 fine.
4 Section 52A(1)(c); maximum penalty $10,000 fine.
FIELDING v NEW ZEALAND POLICE [2024] NZHC 1455 [5 June 2024]
convicted and discharged Alisohn on the other charges.5 Alisohn now appeals her convictions and sentence.
The Judge-alone trial and decision
[3] A Judge alone trial occurred at the Porirua District Court on 4 December 2023. Judge Walsh reserved his decision which was delivered on 12 February 2024 following receipt of further submissions.6 The Judge found all elements of the charges proven.
[4] At the outset of Judge Walsh’s decision, he notes that the charges were first called on 15 November 2022, and the Judge-alone trial on 4 December 2023 was the 18th “judicial event” for the matter in Court.7 This included an unsuccessful s 147 application by Alisohn.8 On the morning of the trial, Alisohn unsuccessfully advanced an “injunction” application to prevent Judge Elkin from making any further judgments in the matter.9
[5] Judge Walsh dismissed Alisohn’s sovereign citizen-type jurisdictional arguments,10 and proceeded to consider the evidence. The Judge’s decision traversed the evidence which comprised that of Senior Constable Aaron John; Constable Lisa Maree Barber; documents from a Radiologist and Physiotherapist relating to Alisohn’s purported injuries following her arrest (during which she contends she was physically assaulted); and defence evidence from Eric Cocker and Jack Cocker who were nearby the scene on 1 November 2022. Alisohn elected not to give evidence.
[6]The Judge’s key findings were:
[104] I find proven that on 1 November 2022, Alisohn drove a Suzuki Swift vehicle Registration No JSB367 on a road, at a speed of 65 kms/hr exceeding 50 kms/hr, being the applicable posted speed limit. I accept the accuracy of what was recorded in the radar logbook, speedometer, and odometer. There is no contrary evidence.
5 New Zealand Police v Fielding [2024] NZDC 9995.
6 Decision under appeal, above n 1.
7 At [3].
8 New Zealand Police v Fielding [2023] NZDC 26551 (in which Judge Elkin declined the application finding that there was sufficient evidence for the matter to proceed to trial).
9 On the morning of the Judge-alone trial, Alisohn filed an “Injunction Without Notice” which Judge Walsh found to be unfounded and without legal basis.
10 In reliance on the approach taken by Isac J in Te Pairi v R [2023] NZHC 992 at [14]–[16]; and
Simon v Chief Executive of the Department of Corrections [2022] NZCA 222 at [4]–[5].
[105] I find proven that on 1 November 2022, Alisohn failed to comply with a lawful requirement given to her under s 114(2) of the LTA by Senior Constable Graham, an enforcement officer, in that Alisohn, being the driver of a vehicle and being followed by a motor vehicle displaying flashing blue and red lights or sounding a siren, failed to stop.
[106] I accept Senior Constable Graham’s evidence that after detecting Alisohn driving towards him in the Suzuki Swift at 65 km/hr, he pulled over to the side of the road, executed a U-turn, and conducted a pursuit while operating the flashing blue and red lights, and a siren.
[107] I find proven that on 1 November 2022, Alisohn, being the driver of a vehicle that was stopped under the LTA and having had a lawful demand by an enforcement officer to give her full name and full address, failed or refused to give such information as set out in s 114(s)(b) of the LTA.
[108] I find that Alisohn was the driver of the Suzuki Swift motor vehicle on 1 November 2022 and she failed to pull over to the side of the road and stop, there being ample spaces to do so.
[109] I reject Alisohn’s assertation in cross-examination that she was unaware that the was following her with his flashing lights and siren operating based on Senior Constable Graham’s evidence that Alisohn said to him that she thought he had some sort of emergency he was going to. I infer that, therefore Alisohn knew that Senior Constable Graham was following her.
[110] I find that Senior Constable Graham’s patrol car was about two or three car lengths behind Alisohn’s Suzuki Swift during the pursuit, and when he decided that she was not going to stop, he made the judgement call to terminate the pursuit.
[111] I find proven beyond all reasonable doubt that on 1 November 2022, Alisohn intentionally resisted Senior Constable Graham whilst he was acting in the execution of his duty. I find proven that Alisohn was totally uncooperative. She was in a belligerent and agitated state of mind, thus leaving Senior Constable Graham with no alternative but to arrest her and to apply the handcuffs.
[112] I find that Alisohn was deliberately uncooperative in failing to make her left wrist and arm available to apply the handcuffs.
...
[120] Therefore, I find all elements of the charges are proved to the relevant standard ...
Approach on appeal against conviction following a Judge-alone trial
[7] Alisohn appeals her convictions under s 229 of the Criminal Procedure Act 2011. Pursuant to s 232(2) of the Criminal Procedure Act, a first appeal court must
allow a first appeal if satisfied that,––
…
(b)in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(c)in any case, a miscarriage of justice has occurred for any reason.
The Court must dismiss the appeal in any other case.11
[8] Where an appellant argues that a Judge erred in their assessment of the evidence, the appeal court is required to form its own view of the facts.12 If the appeal court comes to a different view than the trial judge on the evidence, it follows that the trial judge has erred and the appeal must be allowed.13 Nevertheless, the onus is upon the appellant to show that an error has been made, and in assessing the evidence the appellate court must recognise any benefits that the trial judge may have had. Particularly, where a challenge is made to the credibility of findings based on contested oral evidence, the appellate court must exercise caution.14
Approach on appeal against sentence
[9] A successful sentence appeal under s 250(2) of the Criminal Procedure Act requires both the identification of an error and the need for the appeal court to be satisfied that a different sentence “should” be imposed.15 The Court does not start afresh or simply substitute its own opinion for that of the original sentencing judge.16 Rather, the appellant must show there is a material error before the court goes on to form its own view of the appropriate sentence.17 The court will not generally intervene unless a sentence is manifestly excessive,18 and whether the sentence is manifestly excessive is to be assessed in terms of the final sentence imposed, rather than the
11 Section 232(3).
12 Sena v R [2019] NZSC 55, [2019] 1 NZLR 575 at [26]. See also Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
13 Sena v R, above n 12, at [38].
14 At [38]–[40]. See also Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [29].
15 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
16 At [30].
17 At [30].
18 At [35].
process by which it was reached.19 Thus, the issue for determination is whether there has been a material error that means the sentence was manifestly excessive.
Parties’ positions
[10] In support of the appeal against conviction, Alisohn makes wide-ranging submissions, many of which employ “pseudolaw” tactics that the courts have repeatedly rejected.20 I consider any potentially valid complaints can be distilled as follows:
(a)Senior Constable Aaron John Graham made unsubstantiated claims that did not meet the standard of evidence required to convict. His evidence was not credible or reliable as it “consisted of irregularities” and could not be verified as true by any corroborating witness.
(b)The prosecution failed to provide evidence that the police radar equipment detected the “true speed” of the appellant’s vehicle.
(c)The date attributed to one of the photographs in the police photograph booklet was incorrect and therefore the photographs were unreliable evidence.
(d)Judge Walsh failed to take into account all the evidence placed before him. In particular, Senior Constable Graham’s “history of allegations” and medical evidence of Alisohn’s injuries caused by his arrest.
[11]In support of the appeal against sentence, Alisohn submits:
(a)Judge Walsh erred in sentencing Alisohn after her appeal against conviction was filed in the High Court, and therefore sentenced her without jurisdiction.
19 At [30]–[36].
20 See for example R v Te Pairi, above n 10.
(b)Judge Walsh failed to properly factor the five days she spent in custody following her arrest for failing to attend her sentencing date because she does not recognise the Court’s jurisdiction.
[12] Alisohn asks this Court “to quash the charges, judgment, sentencing and conviction and remove it from the record in its entirety.”
[13]The Crown opposes the appeal, submitting that:
(a)Judge Walsh did not err in his assessment of the evidence. The evidence of the police witnesses was sufficient to prove the charges. The appellant did not give evidence and her cross-examination did not cause the Judge to have a reasonable doubt in respect of any of the charges.
(b)There is no error in Judge Walsh’s sentencing exercise. A sentence to come up if called upon, and a $500.00 fine, appropriately reflected the seriousness of the charges proved and the time spent in custody.
Conviction appeal
The elements of the charges
[14] For the charge of exceeding the speed limit, the prosecution had to prove: that Alisohn was the driver on a road with a 50 km/hr posted speed limit, and that she exceeded that limit.
[15] For the charge of failing to stop when followed by red and blue flashing lights, the prosecution had to prove: that Alisohn was the driver of a vehicle; that Senior Constable Graham was an enforcement officer; and that he was following the defendant’s vehicle and required the defendant to stop by displaying flashing blue and red lights; and that Alisohn failed to stop her vehicle as soon as practicable when signalled to stop.
[16] For the charge of failing to give her name and address on demand, the prosecution had to prove: Alisohn was the driver of a vehicle that was stopped; and
when demanded by an enforcement officer, Alisohn failed to provide her particulars as set out in s 114(3)(b) of the Land Transport Act.
[17] For the charge of resisting police, the prosecution had to prove: Alisohn intentionally resisted arrest by Senior Constable Graham; and when arresting the defendant, Senior Constable Graham was acting in the execution of his duty.
The evidence
[18] The prosecution evidence came from two prosecution witnesses: Senior Constable Graham (the police officer on duty on 1 November 2022) and Constable Lisa Maree Barber (who was called to attend Alisohn’s arrest on 1 November). There were two defence witnesses, Eric Cocker and Jack Cocker, who were near the scene on 1 November. Alisohn elected not to give evidence.
[19] The evidence of Senior Constable Graham was crucial. He gave evidence of each of the essential elements forming the charges.
Exceeding the speed limit
(a)Senior Constable Graham gave evidence that, on 1 November 2022, he completed a check on his radar device (VS67214) for speed detection, which was fitted in his Skoda Station Wagon (PDK586), and he filled out his radar logbook.
(b)To this effect, Senior Constable Graham produced a police photo booklet including: his radar logbook — certifying that the test found that the radar device operated correctly on “1/1/2022” (an error which I return to); two certificates of accuracy in respect of the radar measuring device and the speedometer and odometer fitted into the Skoda, dated 15 June 2022, and 29 September 2022 respectively; and Senior Constable Graham’s certificate of proficiency in police speed enforcement equipment. He gave evidence that the speed radar device tests satisfied him that it was testing correctly. He said “if it didn’t test correctly then I wouldn’t be using it”.
(c)He gave evidence that at 6.33 pm at Marine Parade, Paraparaumu, he detected a grey coloured Suzuki Swift (JSB367) driving towards him at 65 km/hr, in a 50 km/hr posted speed limit zone.
Failing to stop for red and blue flashing lights
(d)Following the speed detection, Senior Constable Graham said he pulled over, activated his red and blue lights, and commenced a U turn with the intention of stopping the vehicle. The Suzuki Swift made no attempt to stop, turning right into Ocean Road, at which time he activated his siren. The vehicle continued on Ocean Road, turning right onto Kāpiti Road, and then left into Hurley Road where it stopped.
(e)At Hurley Road, the female driver, Alisohn, exited the vehicle.
(f)In cross-examination, the version of events Alisohn put to Senior Constable Graham was to the effect that he had presumed she knew that he had been following her. Senior Constable Graham responded, “… when I approached and spoke to you... it was clear that you knew I was behind you”, based on the communication when he approached her as she stated “... I thought you had some kind of emergency you were going to”.
(g)Senior Constable Graham gave evidence that there were many opportunities to pull over, being a large carriageway and arterial route in a residential area. Senior Constable Graham noted that on Ocean Road, the vehicle was “now travelling within the speed limit but it was making no attempt to stop; although, there were clear places to stop.”
Failing to provide details on demand
(h)Senior Constable Graham gave evidence that Alisohn would not provide her address despite several requests and being advised that she was legally obligated to give her details. He said that Alisohn also
refused to comply with attempts to photograph her to confirm her identity, and denied that her name was Alisohn Fielding.
Resisting arrest
(i)Senior Constable Graham gave evidence that upon Alisohn stopping and getting out of her car, he approached her and told her that he was signalling for her to stop for a speeding offence. She stated multiple times, “I don’t consent, I don’t have a contract with you”. He advised she was under arrest for failing to stop, and as he went to grab her arm to complete the arrest, she “started to repeatedly pull away”, “resisting attempts to grab hold of her arm or her hand”. He said that to gain control over her, he moved her towards the left front bonnet area of his car, and secured her against the vehicle, down on the bonnet while requesting assistance from Police Communications. He said he read her rights, and she yelled and screamed for help and stating she did not consent. He said that despite requests to place her left arm behind her she refused to comply, “I was continually asking the female to put her other hand behind her back which she refused to do”. He then used an authorised procedure of pain compliance to facilitate the arrest.
(j)The alternative version Alisohn put to Senior Constable Graham in cross-examination was that he was assaulting her and that he caused her injuries, and Alisohn made reference to the documents from a Radiologist and Physiotherapist, and tax documents. She put to Senior Constable Graham that she “wasn’t resisting arrest, I was unable to comply because I couldn’t move” while he held her on the bonnet, trapping her other arm under her body. Senior Constable Graham denied the proposition.
(k)Constable Barber gave evidence that she could not detect any visible injuries, and that Alisohn was banging her handcuffs against the back seat of the police car. Under cross-examination Constable Barber said that Alisohn was being “deliberately obstructive”.
(l)Eric Cocker, a defence witness, gave evidence that at about 6.00 pm on 1 November 2022 he heard a woman shouting “Help, he’s hurting me, can someone please help”, while at the Centre Church.
(m)Jack Cocker, a defence witness, also at the Centre Church on 1 November, recalled Alisohn entering the Church asking to use a telephone, and that she was “favouring one of [her] arms … but you’d pulled your sleeve up and it was kind of red”. Alisohn told him that she had “just been assaulted”.
Assessment of conviction appeal
[20] I accept, as did Judge Walsh,21 that the key issue is the credibility of the prosecution witnesses. Senior Constable Graham is the key prosecution witness, on which the case stands or falls. His evidence directly establishes the elements of the relevant charges, which are evidently straightforward. I note this Court must exercise caution in assessing a challenge to credibility findings based on contested oral evidence.22 On this issue, the Judge concluded:
[98] I find that Senior Constable Graham was a convincing and credible witness. Senior Constable Graham under cross-examination by Alisohn, on two separate occasions, indicated that his recollection of events was “etched” in his memory.
[21] The Judge had the benefit of hearing and assessing the oral evidence in real time. I do not. Given there is no apparent deficiency in the evidence, and the required restraint, I am not prepared to depart from Judge Walsh’s credibility assessment.
[22] I now consider each of Alisohn’s specific submissions as to errors made by the Judge.
21 Decision under appeal, above n 1, at [93].
22 Sena v R, above n 12, at [38]–[40]. See also Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [29].
The evidence of Senior Constable Graham
[23] The first complaint is that Senior Constable Graham’s evidence was unsubstantiated and did not establish the charges beyond reasonable doubt. Given my above conclusions, I do not accept this contention. I also add that the Judge was thorough and measured in his assessment of the evidence. The Judge said that in considering the evidence of each witness, he considered its “reasonableness, coherence, and probability” and whether each witness’s evidence was “consistent with or ... supported by other evidence.”23 He expressly stated that he “particularly and cautiously examined evidence” that he considered was “contradictory, inconsistent, and unsupported.”24 The Judge articulated the nature of the evidence given by Senior Constable Graham and his responses to Alisohn’s questions in cross- examination.25 That included Alisohn’s express attempts to put her version of events to Senior Constable Graham, which were adamantly denied.
[24] I consider that the Judge was correct to note that any minor inaccuracy in a witness’s testimony does not necessarily detract from the witness’s credibility or reliability as a whole.26 The appellant has not produced any material matter which calls for a different conclusion as to Senior Constable Graham’s reliability or credibility, or his evidence as a whole.
Accuracy of police radar equipment and police photographs
[25] Alisohn contends that the prosecution failed to provide evidence that the police radar equipment detected the true speed of her vehicle. The evidence produced by Senior Constable Graham in the police photo booklet specifically addresses this issue. That confirms that a daily accuracy test was undertaken on 1 November 2022 confirming the measuring device was accurate, and that the speedometer and odometer fixed in Senior Constable Graham’s vehicle was accurate.
[26] In any case, I accept the respondent’s submission that s 146 of the Land Transport Act is a complete answer to this ground. The effect of s 146 is that
23 Decision under appeal, above n 1, at [25].
24 At [26].
25 At [29]–[57].
26 At [99].
certificates of authority, as to the testing or accuracy of speed measuring devices are sufficient proof that the devices were tested on the dates at issue and were accurate on the dates in question absent proof to the contrary. Alisohn offered no evidence to rebut the presumption in s 146.
[27] In respect of the complaint raised as to the date attributed to the Senior Constable’s radar logbook – certifying that the test found that the radar device operated correctly on “1/1/2022”, the Judge said:
[100] Senior Constable Graham was criticised by Alisohn for a date error in the photographic booklet. He explained that a colleague at the police station prepared the photographic booklet. At the foot of Section 1 – “Speed Readout” it states:
Photograph taken on 1/1/2022 by Constable Aaron Graham
[101] Clearly, the photographs were taken on 1 November 2022 by Senior Constable Graham, not 1 January 2022. I find that this is a minor error, on the part of the Police which does not affect the overall integrity of the evidence contained within the photograph booklet.
[28] Alisohn raises the same criticism on appeal, but I agree with the Judge’s treatment of the evidence.
Weight given to certain pieces of evidence
[29] Alisohn contends that the Judge failed to give due weight to Senior Constable Graham’s complaint or disciplinary history and the medical reports of her injuries suffered.
[30] With respect to the first matter, Alisohn had advanced the argument that Senior Constable Graham has been before the Court previously for similar allegations and “is known in the community for hanging around in the dark, off duty to prey on the vulnerable”. She submitted that he had previously “forced compliance” and “used unnecessary force causing horrific injuries to a disabled woman”. The Judge stated:
[117] I categorically reject Alisohn’s submission on the grounds that it is without merit and unsubstantiated by any proper evidence that has come before this Court for consideration on 4 December 2023. Senior Constable Graham was emphatic, under cross-examination by Alisohn, that she was the only person that he had ever applied the pain manoeuvre management technique on.
[31] I agree with the respondent’s submission that no discernible error arises from the Court’s treatment of this issue.
[32] With respect to Alisohn’s purported injuries, Alisohn provided the Court with medical documents during the trial. The prosecutor had not previously seen the documents.27 The Judge took the generous approach of admitting the documents despite their hearsay nature. He considered the relevant extracts of the medical documents, and stated:
[61] I have considered all the above mentioned documents. However, I will place limited weight on the documents, given the unannounced manner in which this evidence was presented, resulting in the prosecutor being unable to cross-examine the health assessor.
[33] The Judge was right to place limited weight on the documents in those circumstances and given their limited relevance to the matters in issue.
Conclusion on conviction appeal
[34] The evidence presented was sufficient to prove the charges beyond reasonable doubt. There is no error in the Judge’s assessment of the evidence. The appeal against conviction must accordingly be dismissed.
Sentence appeal
[35] Alisohn makes two primary criticisms of the sentence imposed by Judge Walsh on 26 March 2024. As noted, the Judge sentenced Alisohn to a $500.00 fine on the charge of resisting (taken as the lead charge) and convicted and discharged Alisohn on the other charges.28
[36] The first criticism is that the Judge proceeded to sentencing without jurisdiction – as an appeal against conviction had at that time been filed in the High Court. Alisohn clearly raised this argument at sentencing, to which the Judge said:
27 Decision under appeal, above n 1, at [57].
28 New Zealand Police v Fielding, above n 5.
[5] Alisohn, since the issuing of the reserved judgement [sic] has filed various documents seeking relief in the High Court. But in my opinion, that does not affect my duty and ability to sentence Alisohn today.
[37] The point can be dealt with briefly. Section 231(2) provides, “A notice of appeal or notice of application for leave to appeal must be filed within 20 working days after the date of sentence for the conviction appealed against.” This clearly contemplates that a conviction appeal will be brought after sentencing for that conviction. In Gurney v New Zealand Police, Collins J observed that it was “highly unusual” for an appeal against conviction to be heard before sentencing had taken place, but that “s 231 of the Criminal Procedure Act 2011 does not expressly require sentencing to take place prior to consideration of an appeal.”29 There is no suggestion that Alisohn made an application for her appeal against conviction to be heard prior to sentencing.30 The District Court therefore, had jurisdiction to sentence Alisohn, notwithstanding that a notice of appeal had been filed in relation to her conviction.
[38] The second criticism is that the Judge did not consider time Alisohn was remanded in custody. The Judge said the following in relation to this issue:
[12] I understand that following the execution of the warrant for arrest, you have spent some time in custody, and I take that into account in my sentencing.
[39]The contention is therefore unsubstantiated. The sentence imposed of a fine of
$500.00 on the charge of resisting arrest is unobjectionable, and does not meet the threshold of being manifestly excessive.
Conclusion on sentence appeal
[40] As I am not satisfied that there is any error in the sentence imposed on conviction, the sentence appeal must be dismissed.
La Hood J
Solicitors:
Crown Solicitor, Wellington for Respondent
29 Gurney v New Zealand Police [2017] NZHC 1581 at [11]. In this case, the Court considered it was appropriate to determine the appeal against conviction prior to sentencing. The delay between the offending (in 2002) and the conviction (in 2017) meant that the prosecution required the Attorney-General’s consent to continue, which was not given, so the District Court had no jurisdiction to hear the charge nor sentence the appellant.
30 For example, as was done in Mathers v New Zealand Police [2018] NZHC 1408.
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