B v R

• Jurisdiction: New Zealand
• Court: Supreme Court
• Judge: Elias CJ,Blanchard,Chambers JJ
• Judgment Date: 03 April 2012
• Neutral Citation: [2012] NZSC 22
• Date: 03 April 2012
• Docket Number: SC 6/2012

[2012] NZSC 22

IN THE SUPREME COURT OF NEW ZEALAND

Court:

Elias CJ, Blanchard and Chambers JJ

SC 6/2012

B

and

Thr Queen

Counsel:

G J King for Applicant

D J Boldt for Crown

Appeal against conviction on charges of sexual abuse of appellant's children — trial judge refused to admit evidence from defence's expert on incidence of non-reporting of abuse by children — evidence similar to that of Crown's expert but suggested lower level of non-reporting — Court of Appeal said no miscarriage of justice as no significant difference between Crown and defence's expert evidence and the evidence was not likely to be substantially helpful to jury — whether evidence was not substantially helpful.

The issue was: whether the CA erred in its conclusion that Dr P's proposed evidence was not substantially helpful as it was effectively just “a repetition” of Dr E's and should not be admitted.

Held: The admissibility of Dr P's proposed evidence was distinctly arguable. Trial judges should not rule defence opinion evidence inadmissible simply on the ground that it was largely repetitive of Crown expert testimony. Even if proposed defence expert evidence was substantially similar to proposed Crown expert evidence, the defence should generally be permitted to call their evidence if the judge considered that the corresponding Crown evidence was substantially helpful. Fair trial considerations, and in particular “the right of the defendant to offer an effective defence” under s8(2) EA might require in many cases that both sides to be able to call their experts.

No substantial miscarriage of justice arose from the absence of Dr P's evidence. The Crown's case was very strong. Dr P's evidence was so similar to Dr E's that it would have added very little to the jury's understanding of abuse victims' behaviour. Further, trial defence counsel could have put to Dr E the 1996 study, but chose instead to run the defence on the more general proposition that non-disclosure at an early interview was unusual.

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

REASONS

1 The applicant was convicted of sexual offending against three complainants, all of whom were his natural children. The Court of Appeal dismissed his appeal against conviction and sentence. 1

2 Mr King, for the applicant, seeks to advance only one matter in this Court. It concerns the admissibility of the evidence of Dr Barry Parsonson, whom the defence intended to call as an expert witness. Judge Farish ruled his evidence inadmissible, a view with which the Court of Appeal agreed, although for different reasons.

3 Prior to trial, the Crown advised they proposed to call as an expert witness Dr Mark...