STEPHEN CRAIG ALEXANDER AND COMMISSIONER OF POLICE
[2024] NZCA 510
•11 October 2024 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA122/2024 |
| BETWEEN | STEPHEN CRAIG ALEXANDER |
| AND | COMMISSIONER OF POLICE |
| Court: | Mallon and Hinton JJ |
Counsel: | K E Hogan for Applicant |
Judgment: | 11 October 2024 at 10 am |
JUDGMENT OF THE COURT
AThe application for an extension of time to appeal is granted.
B We make no order as to costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by Hinton J)
On 2 June 2022, following a hearing in which the applicant, Stephen Alexander, was self-represented, Osborne J made forfeiture orders under the Criminal Proceeds (Recovery) Act 2009 (the Act) in relation to the following property:[1]
(a)$6,000 cash seized from X Street.
(b)X Street itself, being Mr Alexander’s residence.
(c)Y Street, being a shed complex adjoining X Street.
(d)A third property, Z Street.
[1]Commissioner of Police v Alexander [2022] NZHC 1287 [judgment under appeal]. We adopt the Judge’s anonymised descriptions of the forfeited property.
On 6 March 2024, Mr Alexander applied for an extension of time under r 29A of the Court of Appeal (Civil) Rules 2005 (the Rules) to appeal the forfeiture decision. The respondent, the Commissioner of Police, opposes the application.
The applicant has filed an affidavit dated 6 March 2024 in support of the application, in which he partially explains the reasons for the delay. We discuss this when considering the submissions of Ms Hogan, counsel recently instructed by him.
Background
On 23 May 2018, Police executed a search warrant at Mr Alexander’s properties while he was serving six months’ community detention for cultivating cannabis, possession of cannabis and possession of a firearm without a licence.[2] The search warrant found cannabis throughout Mr Alexander’s properties, cannabis grow rooms in the shed complex and multiple cultivating materials.[3] The total amount of dried cannabis head material located weighed 6.27 kg.[4]
[2]At [21]–[22]. We adopt the facts from the judgment under appeal.
[3]At [23]–[25].
[4]At [26].
Mr Alexander was charged with cultivating cannabis and possessing cannabis for supply. The Crown applied under s 101 of the Criminal Procedure Act 2011 (CPA) for the search warrant evidence to be admissible in the proceedings. In the District Court, Judge J Maze found the search warrant was unlawfully issued and the evidence was therefore unlawfully obtained. However, the Judge held the evidence was nonetheless admissible under s 30 of the Evidence Act 2006.[5] Mr Alexander successfully appealed that decision to the High Court, and the charges were subsequently dismissed under s 147 of the CPA.[6]
[5]Police v Alexander [2019] NZDC 12152.
[6]Alexander v Police [2019] NZHC 2920.
The Commissioner of Police then brought proceedings under the Act for the forfeiture of the property identified above at [1], and a car registered in the name of Mr Alexander’s son, Ethan Eyles. Mr Eyles was an interested party in the forfeiture proceeding.
During the forfeiture proceeding, two separate counsel representing Mr Alexander withdrew. A third counsel withdrew the day before the High Court hearing. It seems this was largely due to inaction and failure to provide instructions on Mr Alexander’s part.[7] As already noted, the end result was that Mr Alexander was self-represented at the hearing.[8]
[7]Counsel withdrew in May 2020, April 2021 and April 2022 (the day before the hearing).
[8]Judgment under appeal, above n 1, at [13].
The Commissioner’s evidence was provided by affidavits from three deponents:[9]
(a)Detective Constable Bruce, attached to the Police’s Financial Group, provided evidence of search warrants executed in relation to the subject property and of the subsequent investigation. Her evidence included many financial and similar records.
(b)Ms van der Pol, a financial analyst, concluded there was a significant disparity between Mr Alexander’s returned income and his level of cash spending. She calculated the quantum of Mr Alexander’s benefit from unlawful activity as being not less than $242,732.49. Mr Alexander’s real properties were said to be directly tainted by a payment of $19,238.62 to the Timaru District Council from unknown sources. The real properties were also indirectly tainted through his ability to meet mortgage payments.
(c)Detective Sergeant Power provided expert evidence in relation to the production and supply of controlled drugs, with particular reference to exhibits seized during the searches of X Street and Z Street. Detective Power opined that Mr Alexander was likely to have been smoking and possibly consuming cannabis by drinking it but that the seized cannabis which had been dried, packaged and concealed was intended to be sold, supplied or distributed.
[9]At [10].
Mr Alexander did not file any affidavit evidence in the proceeding.[10] He provided the Court with a written document which did not address any of the issues relevant to the proceeding. There was very little material provided in actual opposition to the Commissioner’s case.
[10]At [11].
Of relevance to quantum, Osborne J highlighted the following evidence:
[33] Detective Bruce and Ms van der Pol also concluded, having reviewed Mr Alexander’s bank statements and having spoken to him, that there is evidence that he deals in cars, car parts and furniture. Many of the bigger sales have been accounted for, including the sale of a Ford Bronco, a deal involving coupes, a car purchase by Gos Cut concrete, a campervan and a Ford motor vehicle. The Commissioner accepts this income as explained income. However, Ms van der Pol’s analysis concluded that notwithstanding those legitimate sales, there was a significant disparity between Mr Alexander’s returned income and the level of his cash spending. Over the relevant period Mr Alexander was in receipt of a Work and Income Benefit, receiving between $213 and $269 per week.
[34] Ms van der Pol calculated the quantum of Mr Alexander’s benefit from unlawful activity as being not less than $242,732.49. She identified the direct tainting of Mr Alexander’s real properties held by him as arising from the payment of $19,238.62 of rates to the Timaru District Council in cash from unknown sources.
[35] Ms van der Pol identified indirect tainting of Mr Alexander’s real properties through the fact Mr Alexander was able to meet his mortgage payments from his modest benefit income (from Work and Income) simply because his household income was boosted by a significant amount of cash from unknown sources.
[36] Because of the significant amount of cash available to bank and to pay expenses for the household outside of the bank accounts, Mr Alexander did not have to sell vehicles and other items to meet his cost of living but rather he was able to benefit from these items with overseas holidays and other purchases. In the absence of the cash he would have otherwise been unable to afford such luxuries from the residue of his Work and Income benefit.
Mr Alexander cross‑examined Detective Bruce and Ms van der Pol but did not cross‑examine Detective Power.[11] During an adjournment to enable Mr Alexander to read Detective Power’s affidavit, he left the Court without being excused. Upon request, Mr Alexander provided a medical certificate saying he suffered from irritable bowel syndrome.[12]
[11]At [62].
[12]At [65]–[66].
When the hearing resumed, the Judge asked whether Mr Alexander wished to cross‑examine Detective Power.[13] Mr Alexander filed a memorandum entitled “Appearance for Ancillary Purposes”, in which he recorded that he did not oppose the Commissioner’s claim but appeared in order to be heard.[14] Osborne J proceeded to give judgment in accordance with the evidence adduced and submissions made.[15]
[13]At [66].
[14]At [68].
[15]At [70].
Osborne J accepted Detective Power’s evidence that the quantities of cannabis located clearly pointed to commercial intention.[16] The Judge also accepted Ms van der Pol’s evidence and concluded, on the balance of probabilities, there was a disparity of $242,732.49 between Mr Alexander’s returned income and his level of cash spending.[17]
[16]At [78].
[17]At [79]–[80].
The Judge further found that X Street, Z Street and Y Street were tainted property.[18] The mortgage repayments were funded through significant criminal activity, causing a direct tainting of property. The Judge also found that they were indirectly tainted as Mr Alexander was only able to meet these payments due to the illegitimate funding of his day‑to‑day expenses.[19]
[18]At [87].
[19]At [88].
Osborne J made forfeiture orders accordingly over the property set out above at [1].[20]
Test for extension of time
[20]At [104]. The Judge concluded at [93] that Mr Eyles’ car was not tainted property and so was excluded from the forfeiture orders.
If brought in time, there is a right of appeal under s 56(1)(a) of the Senior Courts Act 2016.
The appeal should have been filed by 4 July 2022. The application for an extension of time to appeal was filed on 6 March 2024, approximately one year and eight months out of time.[21] Mr Alexander seeks an extension of time under r 29A of the Rules, which provides:
(1)If the appeal period prescribed by an enactment or the period prescribed by rule 29(1) or (2) has expired, a party who wishes to appeal may make an interlocutory application for an extension of time in which to appeal.
…
[21]Court of Appeal (Civil) Rules 2005 (the Rules), r 29(1)(a).
In Almond v Read, the Supreme Court summarised the principles guiding the discretion of this Court to grant or deny an extension of time to appeal under r 29A.[22] The ultimate question is: what do the interests of justice require in the particular circumstances of the case. Relevant considerations include:[23]
(a)the length of the delay;
(b)the reasons for the delay;
(c)the conduct of the parties, particularly of the applicant;
(d)any prejudice or hardship to the respondent or to others with a legitimate interest in the outcome; and
(e)the significance of the issues raised by the proposed appeal, both to the parties and more generally.
[22]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [35]–[40].
[23]At [38].
The merits of the proposed appeal may also be relevant, but any consideration of the merits must be relatively superficial.[24] There will be some instances in which the merits will be overwhelmed by other factors, such as the length of the delay and prejudice to the respondent, and so will not require consideration.[25]
Submissions for applicant
[24]At [39(c)].
[25]At [39(a)].
Ms Hogan submits the Almond v Read factors favour an extension of time being granted.
While acknowledging that the delay is lengthy and regrettable, Ms Hogan says the reasons for it are cogent and compelling, relying on Mr Alexander’s affidavit evidence:
(a)Since the judgment on 2 June 2022, Mr Alexander explains that he approached the Legal Services Commissioner for a list of civil legal aid lawyers to help his appeal. He says he contacted twenty lawyers on the list before Ms Hogan agreed to look at the case.
(b)On 18 December 2023, Mr Alexander was granted legal aid on an interim basis to apply for an extension of time to appeal the High Court decision. This was later communicated to Ms Hogan on 28 December 2023, as she was on annual leave.
(c)Ms Hogan filed a notice of application for an extension of time on 6 March 2024.
Ms Hogan says that Mr Alexander’s conduct during the proceeding was unhelpfully focused on an argument that the court system lacked jurisdiction, rather than on the Act and the relevant law. She says this unhelpful focus helps “explain” the conduct of Mr Alexander.
Ms Hogan further submits that the appeal does not give rise to any prejudice or hardship to the respondent. The Commissioner is not an ordinary private litigant, rather they perform a public role using the public purse and hold very extensive powers over private litigants under the Act.
Finally, Ms Hogan contends that the proposed appeal has real merit:
(a)The Judge did not have before him any evidence from the applicant as to his income (legitimate or otherwise). The appeal would involve a close analysis of the Commissioner’s evidence in support of a forfeiture application.
(b)The Judge did not consider the Supreme Court case of Marwood v Commissioner of Police, where it was held that judges have jurisdiction in civil trials to exclude evidence obtained by police in violation of the New Zealand Bill of Rights Act 1990.[26]
(c)The Judge did not consider whether forfeiture of some or all of Mr Alexander’s property would be unduly harsh or disproportionate under s 56 of the Act, which may have saved Mr Alexander’s property (or some of it) from being realised.
Submissions for respondent
[26]Marwood v Commissioner of Police [2016] NZSC 139, [2017] 1 NZLR 260 at [35].
While the respondent accepts there is no prejudice or hardship arising from an extension of time, the respondent contends the delay is extensive and the reasons for it are not adequately detailed in Mr Alexander’s affidavit. The applicant has not provided any detailed information as to the steps taken to obtain a legal aid lawyer between the judgment on 2 June 2022 and Ms Hogan’s agreement to act, nor as to when that agreement was obtained.
The respondent also relies on the applicant’s conduct (or misconduct) throughout the proceeding. The respondent says the applicant’s history of non‑compliance, coupled with the delay since judgment, run strongly against it being in the interests of justice for an extension to be granted.
The respondent says also that, although the proposed appeal is significant to the applicant, it does not raise significant issues of more general application. The respondent submits further that the applicant’s reliance on Marwood is misplaced. Marwood would not impact the admissibility of the evidence as it was open to the Court to consider Mr Alexander’s property was tainted property. Mr Alexander’s rights were vindicated when the improperly obtained evidence was excluded from his criminal trial and the charges were dropped. Any additional action would lead to a consequence disproportionate to the unlawful police conduct.
Finally, the respondent says that any possible merits of this appeal have been overwhelmed by the significant delay that has arisen. No aspect of the delay can be attributed to legal advisor error. Rather, Mr Alexander failed to engage in the proceeding in any meaningful way.
Analysis
While the length of delay is significant, it is explained at least to some extent by Mr Alexander’s affidavit of 6 March 2024. Clearly Mr Alexander should have set out more detail, to properly address the timeline since Osborne J’s judgment, including the names of at least some of the counsel that he tried to contact. However, we accept that litigants find it difficult to procure advice on legal aid and some allowance should be made in this regard. Certainly, since Ms Hogan agreed to represent Mr Alexander, the steps have been timely. From the date that the legal aid grant was communicated to Ms Hogan, it took her 36 working days to file the application, which in itself is not a straightforward matter. That is a reasonable amount of time for a busy lawyer, who is nonetheless prepared to take on legal aid work when many will not, to review the file and draft the application and supporting documents.
We accept that there is a history of non‑cooperation on Mr Alexander’s part that has caused significant delays, required adjournments and been wasteful of the Commissioner and the court’s time and resources. In the High Court, Mr Alexander failed to provide affidavit evidence on multiple instances between April 2021 and April 2022 and ultimately did not provide any affidavit before the trial. Three separate counsel representing Mr Alexander withdrew leading up to the trial, with Mr Alexander ultimately representing himself.
However, weighed against these factors is the significance of the appeal for Mr Alexander. The orders made include the forfeiture of his home. One of the possibilities open to him is an application for relief against forfeiture, which it appears was not advanced before Osborne J. As noted, Ms Hogan argues there are other possible merits to Mr Alexander’s case. We do not need to explore the merits further, but we agree it is key that the evidence is properly analysed in a case such as this. That would be a difficult exercise without professional assistance. It may also be that Marwood is relevant to Mr Alexander’s case. At the least, as Ms Hogan submits, the Court should have an opportunity to consider the points she raises.
Further, as the Commissioner properly accepts, no material prejudice arises if the extension of time is granted.
Taking into consideration the Almond v Read factors set out above, we conclude it is in the interests of justice to grant the extension of time, and order accordingly.
Costs
Although the applicant has succeeded, the application for an extension of time arose from significant default on the applicant’s part. Ordinarily, this would entitle the respondent to costs.[27] As the applicant is legally aided, no order for costs may be made against him unless we are “satisfied that there are exceptional circumstances”.[28] We see no exceptional circumstance which would warrant an order being made against Mr Alexander.[29]
Result
[27]The Rules, rr 53G(2) and 53GA(1).
[28]Legal Services Act 2011, s 45(2).
[29]Section 45(3).
The application for an extension of time to appeal is granted.
We make no order as to costs.
Solicitors:
Crown Solicitor’s Office, Timaru for Respondent
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