Kanhai v R

The applicant, Krishan Jaichandre Kanhai, was convicted in the District Court at Auckland for committing an indecent act in a public place. The conviction was based on the testimony of a florist, who claimed that Kanhai exposed himself in her shop. The jury rejected the applicant's denial and the alibi evidence provided by his sister and brother. The applicant appealed to the Court of Appeal, arguing that the verdict was unreasonable or unsupported by the evidence, but the appeal was dismissed. Now, Kanhai seeks to appeal to the Supreme Court, claiming ineffective assistance of counsel for not discussing or presenting evidence of his good character. He requests leave to bring the appeal directly from the trial court under section 14 of the Supreme Court Act 2003.

The legal issue before the court was whether Kanhai could appeal directly to the Supreme Court on the basis of ineffective assistance of counsel, a new ground not previously raised in the Court of Appeal. The court considered whether the appeal fell within the exceptional circumstances warranting leave to appeal directly to the Supreme Court. The court also assessed whether the ineffective assistance of counsel claim raised an issue of principle of general or public importance.

The Supreme Court dismissed Kanhai's application for leave to appeal. The court explained that appeals from trial courts after conviction may go either to the Court of Appeal or, subject to leave, to the Supreme Court. Where an appeal to the Court of Appeal has already occurred, a further appeal to the Supreme Court may only be made with leave. The court further held that the case Kanhai wished to advance did not involve an issue of principle of general or public importance. The court noted that evidence of good character from Kanhai's sister and brother, whose credibility was already undermined, would likely not have made a difference in light of the strong Crown evidence. Therefore, the court concluded that the appeal did not present a risk of a substantial miscarriage of justice, nor did it involve an issue of general public importance.

The Supreme Court refused leave for Kanhai to bring the direct appeal. No further orders were made.