Alexander v Police

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI-2023-442-04

[2023] NZHC 740

BETWEEN
AARON ALEXANDER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 4 April 2023

Appearances:

Appellant in person

J M Webber for the Respondent

Judgment:

4 April 2023

JUDGMENT OF PALMER J

Solicitors/Counsel
O’Donoghue Webber, Nelson

ALEXANDER v NEW ZEALAND POLICE [2023] NZHC 740 [4 April 2023]

[1] On the evening of 30 October 2021, the Police allege that Mr Aaron Alexander, aged 47, committed assault at the Tasman Bay Backpackers in Nelson. The prosecution applied for the complainant to give evidence by audio-visual link (AVL) because he was apprehensive about giving evidence in the courtroom. On 27 January 2023, in the Nelson District Court, Judge J E Reilly granted the application, under s 103(3)(c) and (d) of the Evidence Act 2006 (the Act).1 She also ordered, under s 95(2) of the Act, that Mr Alexander, who is representing himself, is not to personally cross- examine the complainant and appointed counsel to assist the court to do so.2

[2] Mr Alexander seeks leave to appeal the pre-trial ruling. He submits it will have an unfairly prejudicial effect on the proceeding and his right to offer an effective defence. He says the complainant is not the victim but the instigator. He says the complainant did not use the word “assault” in his statement to the Police and he said in his victim impact statement that he did not have long-term emotional effects. Mr Alexander said he was acting in self-defence. He has not had a good experience of a court-appointed lawyer. In relation to jurisdiction, he believes he has a right of appeal and the High Court directs the District Court on injustice.

[3] Mr Webber, for the Police, submits the Court has no jurisdiction to grant leave. He is correct. Section 215 of the Criminal Procedure Act 2011 specifies the pre-trial rulings that are amenable to appeal if leave is granted for that purpose. It does not specify either of the decisions Mr Alexander seeks to appeal. Accordingly, he cannot seek leave to appeal them before the trial. Mr Alexander is still able to appeal on these grounds but must wait until after the trial to do so, if the trial goes against him. He is able to defend himself and mount his defence of self-defence. The application for leave to appeal these two decisions, at this time, is declined for want of jurisdiction.

Palmer J

1 New Zealand Police v Alexander [2018](sic) NZDC 1308 at [12].
2 At [13].

CaseChat Overview and Summary

In the case of Alexander v Police, Aaron Alexander, the appellant, challenges a pre-trial ruling made by the Nelson District Court. Alexander is alleged to have committed an assault at the Tasman Bay Backpackers in Nelson on 30 October 2021. The prosecution applied for the complainant to give evidence by audio-visual link, which was granted by Judge J E Reilly under the Evidence Act 2006. Additionally, Judge Reilly ordered that Alexander, who is representing himself, would not personally cross-examine the complainant and appointed counsel to assist the court in doing so. Alexander seeks leave to appeal these pre-trial rulings, arguing that they will unfairly prejudice the proceeding and his right to offer an effective defence. The Police, represented by J M Webber, argues that the High Court does not have jurisdiction to grant leave to appeal the pre-trial rulings.

The legal issues the court had to decide were whether the High Court had jurisdiction to grant leave to appeal the pre-trial rulings and whether Alexander’s right to a fair trial and to an effective defence would be unfairly prejudiced by the pre-trial rulings. The court examined the provisions of the Criminal Procedure Act 2011 and determined that the pre-trial rulings Alexander seeks to appeal are not specified as appealable decisions. As a result, the court found that it did not have jurisdiction to grant leave to appeal the pre-trial rulings at that time. The court also considered Alexander’s argument that the pre-trial rulings would unfairly prejudice the proceeding and his right to an effective defence, but found that Alexander could still defend himself and mount his defence of self-defence. The application for leave to appeal the pre-trial rulings was declined for want of jurisdiction.

The court’s reasoning was based on the provisions of the Criminal Procedure Act 2011, which specifies the pre-trial rulings that are amenable to appeal if leave is granted for that purpose. The court found that the pre-trial rulings Alexander sought to appeal were not specified as appealable decisions, and therefore the High Court did not have jurisdiction to grant leave to appeal them before the trial. The court also considered Alexander’s arguments about the potential prejudice to the proceeding and his right to an effective defence, but found that these arguments did not outweigh the need to follow the provisions of the Act. The final orders of the court were that the application for leave to appeal the pre-trial rulings was declined for want of jurisdiction.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established