Alexander v The King
[2025] NZCA 430
•27 August 2025 at 12 pm
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
CA162/2025
[2025] NZCA 430
BETWEEN MARK ANDREW ANTHONY ALEXANDER Appellant AND THE KING Respondent
| Court: | Mallon, Powell, and Cull JJ |
| Counsel: | Appellant in person |
| M H Cooke for the Respondent |
Mr Alexander wishes to bring this appeal on the basis that there is new
evidence that was not before the High Court, including affidavits from three witnesses
who did not give evidence in the District Court and whom he wishes to call at a second
appeal. He also applies for a disclosure order for the medical file of Mrs Alexander.
The Crown opposes the application for leave to appeal on the basis that the
high threshold for granting leave is not met.[1] The Crown likewise opposes
Mr Alexander’s application for an order for the medical file on the basis the file was
disclosed prior to trial and Mr Alexander has been provided with a copy.
[1] For completeness, the Crown also notes that the application was filed six working days out of time
This Court must not grant leave unless satisfied that the appeal involves a
matter of general or public importance, or a miscarriage of justice may have occurred
or may occur unless the appeal is heard.
Background
Mr Alexander had been charged with assaulting his mother at her home on
29 July 2023. Following a Judge-alone trial, Mr Alexander was convicted by
Judge Kellar on a single charge of assault on a person in a family relationship.[2]
[2] Police v Alexander [2024] NZDC 12195.
Mr Alexander initially defended the charge by asserting he never went inside
his mother’s unit on the night in question, but accepted during the trial that he did in
fact enter her flat. He maintained he never assaulted her and contended that his mother
made up the allegations, possibly as a result of her suffering from paranoid delusions.
In finding Mr Alexander guilty, the Judge rejected Mr Alexander’s evidence
and accepted Mrs Alexander’s account. His Honour set out his reasons as follows:
[17] I reject Mr Alexander’s account. He clearly bears deep-seated
animosity towards his mother. Further, he gave a full account of what he said
occurred, including repeatedly saying that he had not gone into his mother’s
unit. Only when faced with the evidence of Barbara Wilkinson, that she and
her son had taken him to his mother’s place where he had gone inside, did he
concede that he was wrong and that he had gone inside his mother’s unit. Yet,
in cross-examination, he said that he could not remember going into the unit
and had no recollection of what happened.
[18] I accept Mrs Alexander’s evidence. The [victim video statement] was
made within a couple of hours of the incident. Although one must be wary of
the way in which someone appears when making a statement or giving
evidence, Mrs Alexander appeared very articulate and to have provided a
cogent account of what she said occurred. Further, she provided a clear
description of what she said happened. She did not appear to exaggerate or
embellish. Furthermore, she was prepared to make a concession that her son
was a very gentle person and had not behaved in this way before. What she
said was also largely consistent with the evidence of Barbara Wilkinson,
although there was a difference between them about whether Ms Wilkinson
and her son brought Mr Alexander inside. There is no doubt that
Mr Alexander came inside the unit, despite what he initially told the
Constable.
Mr Alexander was subsequently sentenced to 18 months’ intensive supervision
on both the assault charge and an unrelated charge of behaving threateningly.[3] The
sentence has not been challenged.
[3] Police v Alexander [2024] NZDC 32119.
Mr Alexander appealed his conviction on the assault charge to the High Court.
His principal grounds of appeal were summarised by Mander J as follows:[4]
The first was that the Judge erred in finding it was possible the offending had
taken place because of the various suggested timings of events that had been
given in evidence. Secondly, that the Judge had erred in his assessment of
Mrs Alexander’s credibility by failing to have regard to medical opinions
about her having experienced delusions in the past. Mr Alexander also
submitted that Judge Kellar had erred in concluding that he held a
“deep-seated animosity” towards Mrs Alexander. He maintained he was
nothing but supportive of his mother.
[4] Alexander v Police [2025] NZHC 138 at [16].
In support of the appeal, Mr Alexander sought to rely on a range of additional
evidence, not all of which was new. Mander J noted that a number of the documents
sought to be relied upon “were produced at trial and were before Judge Kellar at the
time he made his decision”.[5] As a result “[t]hey form part of the material the appeal
Court may have regard to in the ordinary way”.[6]
[5] At [18].
[6] At [18].
The remaining documents sought to be produced on appeal by Mr Alexander
were found to be inadmissible.[7] These included correspondence relating to a
complaint in 2024 by Mr Alexander to the Medical Council about his mother’s general practitioner, which Mander J concluded had no probative value in respect of any
relevant issue, and was therefore inadmissible.[8]
[7] At [22]–[27].
[8] At [24].
Mander J then addressed the substantive issues in the appeal. In respect of the
first ground, his Honour found that the discrepancies in timing relied upon by
Mr Alexander had no material impact on the witnesses’ credibility or reliability.[9]
[9] At [32].
On the second ground, Mander J observed that:[10]
Mrs Alexander’s alleged delusions were already in some form before the
Court as they were identified in her narrative to be what was angering her son
that night and how the assault had come to take place.
[10] At [33].
His Honour then concluded:
[37] I am satisfied the trial Judge took into account Mrs Alexander’s mental health background (such as it was) that was traversed with the witness
when assessing her account of what had happened after her son entered the
flat. As I have already noted, the medical information did not disqualify
Mrs Alexander from being accepted as reliable and credible. The Court was
entitled to undertake an overall assessment of the victim’s testimony to decide
whether it was sufficiently reliable to establish the charge proved beyond a
reasonable doubt. It has not been demonstrated the Judge erred in the way he
carried out that task, or that any miscarriage of justice has occurred as a result.
Finally, Mander J addressed what he described as an ancillary issue, that
Judge Kellar erred in concluding Mr Alexander bore a “deep-seated animosity”
towards his mother and that this had illegitimately formed part of his reasoning for
rejecting Mr Alexander’s account.[11] In rejecting that submission, Mander J observed:
[11] At [38].
[39] The evidence records that Mr Alexander, on several occasions, used
profanities and obscene language when referring to his mother. His
resentment of his mother, at least in the context of the events the subject of the
trial, emanated from his mother’s alleged “delusions”. Mr Alexander, in his
intoxicated state, assaulted his mother because of his anger at her persistent
“delusionary beliefs” about the neighbour knocking on the walls and doors. It
was apparent that Mrs Alexander’s persistent beliefs about the neighbour had
created a sense of grievance held by her son. The Judge’s assessment of
Mr Alexander’s animosity was relevant to how he had come to assault his
mother that night.
Additional evidence on appeal
Although somewhat unclear, it appears from his submissions Mr Alexander
seeks leave to rely upon the following additional evidence, not otherwise before the
District Court or considered by the High Court, in support of his application for leave:
(a) Affidavits of Ruth Jeenes affirmed on 10 June 2025 and 17 June 2025. Ms Jeenes was a resident of the same complex where the incident on
29 July 2023 took place and states she was not one of the 11 people
identified by Mrs Alexander as supporting her allegations of
harassment against another of the residents.
(b) An affidavit from Catherine Jackson sworn on 8 May 2025. Ms Jackson said she had known Mr Alexander and Mrs Alexander all
her life and that they were “extremely close” and that she had “never
witnessed any animosity between them”.
(c) An affidavit from Jerusha Brown, a niece of Mr Alexander. Ms Brown referred to the conflict between Mrs Alexander and her family
including Mr Alexander, and she stated she could not see Mr Alexander
“assaulting an elderly person”.
(d) Two letters of support from the Canterbury Men’s Centre dated 4 March 2024 and 17 October 2024 regarding Mr Alexander’s
engagement in counselling and providing details of the other incident
for which Mr Alexander was sentenced by Judge Kellar.
(e) Additional correspondence regarding Mr Alexander’s complaint to the Medical Council regarding Mrs Alexander’s doctor.
(f) Correspondence between Mr Alexander and the Office of the Health and Disability Commissioner.
(g) A Google search showing the distance between two addresses in Christchurch.
(h) An email from Mr Alexander to a lawyer at the Public Defence Service dated 20 August 2024.
(i) Various unsworn handwritten notes by Mr Alexander including one
entitled “Affidavit of Mark Alexander”.
We have considered this additional material and concluded none of it should
be admitted in relation to the application for leave. In summary:
(a) None of the affidavits provided by Mr Alexander is fresh or cogent and none is in fact directly relevant to the principal matters at issue —
whether Mr Alexander had the opportunity to and did assault
Mrs Alexander on the night of 29 July 2023. None goes to the
credibility of Mrs Alexander. In addition, Ms Brown’s evidence is also
a mix of inadmissible hearsay and opinion evidence. All three
affidavits are inadmissible in relation to the application for leave.
(b) The letters from the Christchurch Men’s Centre are also not relevant and therefore inadmissible. They are not in the form of evidence,
neither sworn nor affirmed, and in the absence of any information about
the author’s qualifications, to the extent they appear to offer
information about Mr Alexander’s alcohol use, they also constitute
inadmissible opinion.
(c) The correspondence with the Office of the Health and Disability Commissioner and the Medical Council adds nothing to that which was
before Mander J. It is administrative in nature and reveals nothing
whatsoever about Mrs Alexander’s mental state. As a result, it is, like
the earlier material, irrelevant and inadmissible.
(d) The Google search appears to show the route between Mrs Alexander’s home and the KFC at which Mr Alexander purported to make a
purchase at around 9:15 pm on 29 July 2023, but which he was not able
to remember at trial. As with the other material, it is not evidence produced through a witness. In any event, although it states the distance
between the points identified as 400 m, it gives a time estimate for
driving and does not indicate how long it would have taken for
Mr Alexander to walk between those points. As such, it has no
relevance to the application for leave and is inadmissible.
(e) As with similar material considered by Mander J, the email from Mr Alexander to the Public Defence Service, together with his other
handwritten notes (including his “affidavit”) are not evidence, being
neither sworn nor affirmed. At best they are assertions or submissions
by Mr Alexander about the evidence or the conclusions reached by
Judge Kellar and Mander J. As a result, they have been considered as
submissions made by Mr Alexander in support of the application for
leave.
As noted, Mr Alexander also sought disclosure of Mrs Alexander’s medical
records from Mrs Alexander’s doctor, and in particular any diagnosis of dementia. As
Ms Cooke pointed out for the Crown, Mrs Alexander’s medical records had already
been provided prior to the District Court trial and a copy was provided to
Mr Alexander. No order is accordingly required.
The application for leave to bring a second appeal
Although Mr Alexander’s submissions are difficult to follow, it is apparent that
he is still seeking to raise the same issues previously rejected by both the District Court
and the High Court.
Having considered what he has said, we are satisfied there is nothing of general
or public importance in relation to the appeal. In the absence of any additional
evidence that bears on the conviction, we are satisfied that there is no prospect that a
miscarriage of justice may have occurred. Ultimately, as both Judge Kellar and
Mander J concluded, none of the timing issues advanced by Mr Alexander was
sufficient to render the assault for which he was found guilty impossible. On the
contrary, Mr Alexander ultimately accepted he had been alone with Mrs Alexander in the flat, and it is beyond any doubt that there was an opportunity for the assault to have
occurred.
Likewise, as both Judge Kellar and Mander J observed, notwithstanding the
continued questioning of Mrs Alexander’s mental capacity, it remained open for
Judge Kellar to accept her evidence over the account given by Mr Alexander and to be
satisfied that the change had been proven, particularly given that Mr Alexander
accepted in evidence he had no recollection of what had transpired.
Finally, with regard to what was described as the ancillary issue — and
notwithstanding his submission to the contrary — it is clear from the language used
by Mr Alexander to describe his mother in his evidential video interview (particularly
in his monologue given while the interviewing officer was out of the room) and later
in his evidence at trial that he displayed significant animosity towards his mother.
Judge Kellar was entitled to take this into account in deciding whether the charge was
proved.
Taking these points together, we conclude Mr Alexander’s application does not
reach the threshold for a second appeal, and his application must be declined.
Result
The application for an extension of time to bring the application for leave to
bring a second appeal is granted.
The application to adduce further evidence in support of the application for
leave to bring a second appeal is declined.
The application for non-party disclosure is declined.
The application for leave to bring a second appeal is declined.
| Solicitors: |
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent
| Judgment: | 27 August 2025 at 12 pm |
| (On the papers) |
JUDGMENT OF THE COURT
| A | The application for an extension of time to bring the application for leave |
| to bring a second appeal is granted. | |
| B | The application to adduce further evidence in support of the application |
| for leave to bring a second appeal is declined. | |
| C | The application for non-party disclosure is declined. |
| D | The application for leave to bring a second appeal is declined. |
____________________________________________________________________
REASONS OF THE COURT
(Given by Powell J)
Mark Alexander seeks leave under s 237(1) of the Criminal Procedure Act 2011
to bring a second appeal following his conviction for assaulting his mother,
Alison Alexander. Campbell J previously directed that the application for leave be
determined separately from the proposed appeal and on the papers.
ALEXANDER v R [2025] NZCA 430 [27 August 2025]
but does not oppose an extension of time being granted.
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