Solicitor-General v Alexander - [2009] NZCA 346

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA455/2008
[2009] NZCA 346
SOLICITOR-GENERAL
v
JOHN FREDERICK ALEXANDER
Hearing:16 July 2009

Court:William Young P, Hammond and Baragwanath JJ
Counsel:F E Guy Kidd for Solicitor-General

A G Speed for Respondent

Judgment:6 August 2009 at 10am
Reissued:6 November 2009 at 2.30pm : see minute of 6 November 2009
Effective date of judgment: 6 August 2009

JUDGMENT OF THE COURT

A THE APPEAL IS ALLOWED.
BThe questions in the case stated are answered at [8] of the reasons of the Court.
CWe direct a new trial on both counts. In the case of the forgery count, the charge is to be laid under s 264 of the Crimes Act 1961.

____________________________________________________________________
REASONS OF THE COURT
(Given by Baragwanath J)
The appeal
[1]       The respondent, John Frederick Alexander, had acknowledged in writing a debt of $25,000 to his former partner, Ms D. He was charged in the District Court on one count of forgery and one count of perjury. Count one alleged that the respondent had made a false document, namely a receipt purporting to be signed by Ms D and witnessed by the respondent’s mother and a neighbour; count two alleged he had sworn a false affidavit asserting that the receipt evidenced a repayment. The trial began on 16 July 2008. At the end of the prosecution case on 17 July, the trial Judge discharged the respondent on both counts under s 347 of the Crimes Act 1961.
[2] The Crown has appealed to this Court against the decision as being erroneous in law under the new s 381A which permits the prosecution to challenge a s 347 discharge in this Court. On the application of the Crown pursuant to that section, the Judge referred five questions of law (set out at [8] below) arising out of that direction for this Court’s opinion. The appeal accordingly falls for determination under s 382.
[3]       The appeal turns largely on whether the Crown may rely on ss 413 – 415 of the Crimes Act, which came into effect on 26 June 2008 but which had not come to the attention of counsel or the Judge. They deal with a problem identified in R v Sizemore CA290/05 5 December 2005: what is to happen when criminal legislation is repealed and replaced by a new enactment and it cannot be established whether the alleged criminal conduct occurred before or after the change?
[4]       On count one (forgery), the indictment referred to s 256 of the Crimes Act and alleged that the respondent made the false receipt “on or about the 8th June 1999” (the day on which payment was expressed to have been received).
[5]       The difficulty was that the Crown could not establish when the receipt was actually made. That date could potentially have been anywhere between 25 March 1999 (the date borne by the respondent’s acknowledgement of debt) and 15 May 2005 (when…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Solicitor-General v Alexander

Details

AGLC: Solicitor-General v Alexander [2009] NZCA 346
Case: [2009] NZCA 346
Decision Date: 6 August 2009

CaseChat Overview and Summary

In the case of Solicitor-General v Alexander, the Court of Appeal allowed the appeal by the Crown against the decision of the District Court to discharge the respondent, John Frederick Alexander, on both counts of forgery and perjury. The appeal hinged on whether the Crown could rely on new sections of the Crimes Act, which had not been considered by the District Court. These sections dealt with situations where criminal legislation was repealed and replaced by a new enactment and it was unclear whether the alleged criminal conduct occurred before or after the change. The Crown had charged Alexander with making a false document (forgery) and with perjury, as he had sworn a false affidavit asserting that the receipt evidenced a repayment. The District Court dismissed both charges, finding that there was insufficient evidence to support a conviction on the perjury count and that the count for forgery was invalid because the date of the alleged forgery could not be established with certainty. The Court of Appeal found that the new sections of the Crimes Act could be applied retroactively, and that the Crown could rely on them to amend the charge for forgery. The Court also found that the prejudice to Alexander could be remedied by adjournment and that there was sufficient evidence to support a conviction on the perjury count. Accordingly, the Court allowed the appeal, discharged the decision of the District Court, and directed a new trial on both counts, with the forgery charge to be laid under section 264 of the Crimes Act 1961.

Orders