M (Sc34/2011) v R

JurisdictionNew Zealand
CourtSupreme Court
JudgeBlanchard,McGrath,William Young JJ
Judgment Date20 June 2011
Neutral Citation[2011] NZSC 67
Date20 June 2011
Docket NumberSC 34/2011

[2011] NZSC 67

IN THE SUPREME COURT OF NEW ZEALAND

Court:

Blanchard, McGrath and William Young JJ

SC 34/2011

M (SC34/2011)
and
The Queen
Counsel:

G J King for Applicant

A Markham for Crown

Application for leave to appeal a Court of Appeal decision refusing the applicant's challenge to the prosecution's cross examination of a defence expert on the grounds of the expert's lack of objectivity — whether the prosecutor should have revealed to defence counsel, the proposed line of cross-examination before the expert gave evidence; whether the Crown should have sought leave under s37 Evidence Act 2006 (Veracity rules) on the basis that the cross-examination in substance was a challenge to her veracity; whether there was an infringement of s85 Evidence Act (Unacceptable questions) on the basis of “improper” and “unfair” questions.

Held: These contentions did not raise an arguable appeal point. The argument that the prosecutor was required to disclose the proposed line of cross-examination was contradicted by s16(1) Criminal Disclosure Act 2008 (Reasons for withholding information). Leave was not required under s37 Evidence Act because the challenge was not to the expert's veracity but rather to her alleged lack of objectivity and thus to the reliability and credibility of her evidence. Section 85 Evidence Act (addressing questions that are improper or unfair) had no application to the cross-examination which was legitimately associated with the prosecutor's attempt to establish a lack of objectivity. Nor was there anything in the miscarriage argument.

Application for leave to appeal dismissed.

REASONS

1

At the applicant's trial for sexual offending, the prosecutor cross-examined a defence expert about her background and had just started to refer to her husband and convictions which he has for sexual offending when the Judge stopped the cross-examination. This cross-examination was by way of challenge to the expert's objectivity.

2

The applicant's challenge to this cross-examination (which formed the basis of his appeal) was dismissed by the Court of Appeal. 1

3

In support of the application for leave to appeal, Mr King contended that the prosecutor should have revealed to defence counsel the proposed line of cross-examination before the expert gave evidence. He also suggested that the Crown should have sought leave under s 37 of the Evidence Act 2006 on the basis that the cross-examination in...

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1 cases
  • SC SC 34/2011
    • New Zealand
    • Supreme Court
    • 20 June 2011
    ...OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985. IN THE SUPREME COURT OF NEW ZEALAND SC 34/2011 [2011] NZSC 67 M (SC34/2011) v THE QUEEN Court: Blanchard, McGrath and William Young JJ Counsel: G J King for Applicant A Markham for Crown Judgment: 20 J......

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