B (SC 79/2025) v The King
[2025] NZSC 170
•25 November 2025
| NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE |
| IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI O AOTEAROA |
| SC 79/2025 [2025] NZSC 170 |
| BETWEEN | B (SC 79/2025) |
| AND | THE KING |
| Court: | Glazebrook, Kós and Miller JJ |
Counsel: | J E L Carruthers for Applicant |
Judgment: | 25 November 2025 |
JUDGMENT OF THE COURT
The application for leave to appeal is dismissed.
____________________________________________________________________
REASONS
The applicant, B, was convicted by a jury on 18 charges of sexual offending against his daughter, C, between 2001 and 2011, when C was aged between 8 and 17 years. He was also found guilty of supplying methamphetamine and cannabis to C. He was sentenced to 14 years’ imprisonment, with a minimum period of imprisonment of seven years.[1] His appeals against conviction and sentence failed.[2]
[1]R v [B] [2024] NZDC 12002 (Judge Yelavich).
[2]B (CA 417/2024) v R [2025] NZCA 285 (Katz, Brewer and Gault JJ) [CA judgment].
B seeks leave to appeal to this Court, contending:
(a)the trial Judge failed to give an identification warning under s 126 of the Evidence Act 2006, due to confusion C at times had in distinguishing B from his double-cousin, F—said to be very similar in appearance, with C admitting that at times she could not tell them apart (Ground 1);
(b)the Judge likewise failed to give a reliability warning in respect of C’s evidence given her self-described mental health issues and prior false allegations against F and other family members (Ground 2); and
(c)as to sentence, the 10 per cent discount given to B for his ill health was inadequate (B has a debilitating condition causing incontinence and confinement to a wheelchair, and is unable to access medicinal cannabis to treat it in prison) (Ground 3).
B also seeks to adduce further affidavit evidence in support of Ground 3.
Our assessment
We do not consider the criteria for leave to appeal are made out.[3] No matter of general or public importance is raised by this application, which turns on the application of well-established principles to the facts of the case.[4] Nor do we find a substantial miscarriage of justice may occur unless the proposed appeal is heard.[5]
[3]Senior Courts Act 2016, s 74.
[4]Section 74(2)(a).
[5]Section 74(2)(b).
Ground 1 lacks substance. As the Court of Appeal found, the complainant’s occasional difficulty distinguishing F arose in non-sexual family contexts, whereas B was her father and the offending for which he was convicted was alleged to have occurred over a period of ten years (F having lived in the house for only some months).[6] In addition, propensity evidence supported C’s claim that the offender was B, not F, and the Judge gave detailed directions about the need to be sure about B being the offender. While s 126 of the Evidence Act was engaged here (as the Court of Appeal accepted), we see no likelihood that the absence of an express warning caused a miscarriage of justice.
[6]CA judgment, above n 2, at [29].
As to Ground 2, in agreement with the Court of Appeal we are satisfied that no separate, non-mandatory reliability warning was needed in the circumstances of this case when the Judge addressed C’s credibility and reliability in some detail in her summing-up to the jury. Given the partial defence of fabrication, and evidence before the jury as to the matters relied upon under this ground, C’s credibility and reliability were directly in issue; it was, as the Judge said more than once, the jury’s “key focus”. The Judge gave detailed directions on how the jury should deal with those matters.
Finally, we do not consider there is any likelihood of a substantial miscarriage of justice if the proposed appeal against sentence is not heard (Ground 3). The discount given was within range. The fresh evidence tendered relates to a decline in B’s condition, but any response to that should occur via administrative processes, such as under ss 25(1) or 41(1)(b) of the Parole Act 2002 or s 62(2)(a)(ii) of the Corrections Act 2004, rather than by a revision of sentence.[7]
[7]Poi v R [2015] NZCA 300; and Robertson v R [2024] NZCA 162 at [29].
For these reasons we are not satisfied it is necessary in the interests of justice for this Court to hear and determine this proposed appeal.[8]
Result
[8]Senior Courts Act, s 74(1).
The application for leave to appeal is dismissed.
Solicitors:
Te Tari Ture o te Karauna ǀ Crown Law Office, Wellington for Respondent
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