Mr Dunn, the owner of a paint business, Brooke Dunn Coatings Ltd (BDCL), was convicted following a jury trial of seven charges of possessing and supplying the industrial chemical hypophosphorous acid (HPA) for the manufacture of methamphetamine. The Crown case was circumstantial, depending on inferences being drawn from a number of strands of evidence.[1] Mr Dunn maintains the HPA was legitimately used in his paint business as a paint stripper and thinner, and in an anti‑rust treatment.
[1]See Dunn v R [2025] NZCA 216, [2025] 2 NZLR 786 (French, Palmer and Cooke JJ) [CA judgment] at [21].
Mr Dunn appealed his convictions to the Court of Appeal, raising several grounds including the absence of a lies direction, inadequate directions on inferences, inversion of the burden of proof and improper reference to potential methamphetamine yield.[2] After the hearing, he sought to reopen the appeal and adduce fresh evidence from a forensic accountant, Mr Parsons, challenging the Crown’s financial analysis.[3] That evidence had been prepared for a separate proceeding under the Criminal Proceeds Recovery Act 2009. Mr Dunn initially sought to appeal against sentence as well as convictions but later abandoned that appeal.
[2]At [29], [39]–[41], [54], [68]–[71] and [83].
[3]At [87]–[88].
The Court of Appeal declined to admit the fresh evidence and dismissed the appeal.[4] It found no error in the trial Judge’s directions and concluded that Mr Parsons’ evidence lacked cogency, being speculative and inconsistent with trial evidence. Mr Dunn now seeks leave to appeal against the Court of Appeal’s judgment in this Court.

The parties’ submissions

[4]At [124]–[125].

Mr Dunn submits that the trial Judge erred in failing to give a lies direction under s 124 of the Evidence Act 2006 and a “Hodge direction” on inferential reasoning—‍i.e., that before finding him guilty, the jury had to be satisfied not only that the circumstances were consistent with his having committed the act, but also that the facts were inconsistent with any other rational conclusion than that he was guilty—and that the Court of Appeal did not properly address those errors on appeal.[5] He further submits that the Court of Appeal erred in declining to admit Mr Parsons’ evidence, which partly undermined the Crown’s argument regarding unexplained business income. Mr Dunn says these grounds raise both a risk of a miscarriage of justice and matters of general or public importance.[6]
[5]Referring to R v Hodge (1838) 2 Lew CC 227, 168 ER 1136 as cited in R v Hart [1986] 2 NZLR 408 (CA).
[6]Senior Courts Act 2016, s 74(2)(a) and (b).
The Crown opposes leave. It says a lies direction was unnecessary given…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dunn v The King

Details

AGLC: Dunn v The King [2025] NZSC 163
Case: [2025] NZSC 163
Decision Date: 18 November 2025

CaseChat Overview and Summary

In Dunn v The King, the applicant, Brooke Maurice Dunn, owner of Brooke Dunn Coatings Ltd, sought leave to appeal his conviction for possessing and supplying hypophosphorous acid for methamphetamine manufacturing. Dunn was convicted following a circumstantial case by the Crown, which Dunn maintains was based on legitimate use of the acid in his paint business. Dunn appealed to the Court of Appeal, arguing, among other points, the absence of a lies direction, inadequate directions on inferential reasoning, inversion of the burden of proof, and improper reference to potential methamphetamine yield. The Court of Appeal dismissed the appeal and Dunn now seeks leave to appeal to the Supreme Court of New Zealand.

The applicant argued the trial judge erred in not giving a lies direction under the Evidence Act 2006 and a Hodge direction on inferential reasoning. He also claimed the Court of Appeal erred in not admitting fresh evidence from a forensic accountant challenging the Crown's financial analysis. The Crown opposed leave, arguing the lies direction was unnecessary, the Hodge direction was not required by law, and the new evidence was not fresh, cogent, and contradicted trial evidence.

The Court found the lack of a lies direction did not render the trial unfair or the conviction unsafe. Dunn's counsel directly addressed the allegations of lying in closing, presenting the innocent explanation to the jury. The jury did not accept the Crown case uncritically, acquitting Dunn of charges stemming from the first shipment of HPA. The Court also found the Hodge direction on inferential reasoning was not mandatory and was adequately covered by the standard Wanhalla direction. Lastly, the Court found the proposed new evidence from the forensic accountant lacked cogency due to its unclear quantum, distribution over time, and correlation with the HPA shipment dates. There were also remaining inculpatory circumstantial evidence that must be weighed against the financial evidence.

The Court concluded the proposed grounds of appeal did not raise a risk of a substantial miscarriage of justice or matters of general or public importance. The application for leave to appeal was therefore dismissed.

Orders