Kandaiah v The King - [2025] NZSC 166

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IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 93/2025
[2025] NZSC 166

BETWEEN	KUKANENTHIRAN KANDAIAH Applicant
AND	THE KING Respondent

Court:	Glazebrook, Kós and Miller JJ
Counsel:	N P Chisnall KC for Applicant B J Thompson and E P C Duckett for Respondent
Judgment:	25 November 2025

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant was convicted by a jury of two charges of rape, one representative charge of indecent assault and one charge of attempting to pervert the course of justice. He was sentenced to nine years’ imprisonment.[1] His appeal against conviction failed.[2]
[1]R v Kandaiah [2024] NZDC 8854 (Judge Bonnar KC).
[2]Kandaiah v R [2025] NZCA 359 (Palmer, Dunningham and Grice JJ) [CA judgment].
He seeks leave to appeal to this Court, contending:
(a)the prosecutor departed repeatedly from the prosecutorial duty of fairness, using excessively emotive language and exhorting the jury to analyse the case empathetically rather than as if they were “in a laboratory” (Primary Ground);[3]
(b)the Judge failed to give a behavioural change direction in response to evidence by the complainant and her husband about her attitude to intimacy following the first alleged rape (Ground 2); and
(c)rebuttal evidence as to the date Uber drivers were required to hold a passenger endorsement was wrongly admitted and used unfairly by the prosecution in closing (Ground 3).
[3]The passages complained of are set out at [16].
These grounds essentially replicate those advanced in the Court of Appeal.

Our assessment

We do not consider the criteria for leave to appeal are made out.[4] 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.[5] Nor do we find a substantial miscarriage of justice may occur unless the proposed appeal is heard.[6]
[4]Senior Courts Act 2016, s 74.
[5]Section 74(2)(a).
[6]Section 74(2)(b).
As to the Primary Ground, we consider the Court of Appeal was correct to find the prosecutor’s closing address, in some respects, departed from the prosecutorial duty of fairness summarised in Porter v R.[7] However, as this Court has held in R v Stewart, for such breach to then cause an unfair trial depends on its scale and impact, and whether the appellate court is left with no choice but to condemn the trial as unfair and quash the conviction as unsafe.[8] Reading the closing address as a whole and in conjunction with the defence closing and the Judge’s summing up, we consider that threshold not met in this case. Nor do we consider the prosecutor’s approach to have caused a possible miscarriage, and we find no error in the Court of Appeal’s approach.[9]
[7]CA judgment, above n 2, at [29]. See Porter v R [2015] NZCA 448 at [11].
[8]R…

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 Kandaiah v The King

Details

AGLC: Kandaiah v The King [2025] NZSC 166
Case: [2025] NZSC 166
Decision Date: 25 November 2025

CaseChat Overview and Summary

The Supreme Court of New Zealand was presented with an appeal from the applicant, Kukanethiran Kandaiah, who sought leave to appeal his conviction and sentence for two counts of rape, one representative charge of indecent assault, and one count of attempting to pervert the course of justice. Kandaiah was sentenced to nine years’ imprisonment, and his appeal against conviction was previously dismissed by the Court of Appeal. Kandaiah contended that the prosecutor had breached the duty of fairness, the judge failed to give a behavioural change direction, and the rebuttal evidence regarding the date Uber drivers were required to hold a passenger endorsement was wrongly admitted. The Court was required to determine whether the applicant's grounds for appeal met the criteria for leave to appeal under the Senior Courts Act 2016.

The Court found that the applicant's grounds did not meet the criteria for leave to appeal. The Court held that the prosecutor's closing address, while in some respects departing from the duty of fairness, did not cause an unfair trial or possible miscarriage of justice. The Court also found that the behavioural change evidence was not significant enough to warrant a direction to the jury, and the rebuttal evidence regarding the Uber drivers was only marginally relevant and could not have caused a possible miscarriage of justice. The Court concluded that it was not necessary in the interests of justice for the Court to hear the proposed appeal, and the application for leave to appeal was dismissed.

The Court's reasoning and outcome demonstrate that the applicant's grounds for appeal did not meet the criteria for leave to appeal under the Senior Courts Act 2016. The Court found that the prosecutor's closing address, while in some respects departing from the duty of fairness, did not cause an unfair trial or possible miscarriage of justice. The Court also found that the behavioural change evidence was not significant enough to warrant a direction to the jury, and the rebuttal evidence regarding the Uber drivers was only marginally relevant and could not have caused a possible miscarriage of justice.

The final orders of the Court were that the application for leave to appeal is dismissed.

Orders