M (Sc34/2011) v R

• Jurisdiction: New Zealand
• Judge: Blanchard,McGrath,William Young JJ
• Judgment Date: 20 June 2011
• Neutral Citation: [2011] NZSC 67
• Docket Number: SC 34/2011
• Court: Supreme Court
• Date: 20 June 2011

M (SC34/2011)

and

The Queen

[2011] NZSC 67

Court:

Blanchard, McGrath and William Young JJ

SC 34/2011

IN THE SUPREME COURT OF NEW ZEALAND

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.

Counsel:

G J King for Applicant

A Markham for Crown

JUDGMENT OF THE COURT

The application for leave to appeal is 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 substance was a challenge to her veracity. As well he argued that there was an infringement of s 85 of the Evidence Act which is relevantly addressed to “improper” and “unfair” questions. Finally and more generally, he maintained that the questioning resulted in a miscarriage of justice. 2

4 These contentions do not raise an arguable appeal point. The argument that the prosecutor was required to disclose the proposed line of cross-examination is contradicted by s 16(1) of the Criminal Disclosure Act 2008. 3 Leave was not required under s 37 because the challenge was not to the expert's veracity 4 but rather to her alleged lack of objectivity and thus to the reliability and credibility of her...