M (SC 34/2011) v The Queen

[2011] NZSC 67

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE SUPREME COURT OF NEW ZEALAND

SC 34/2011
[2011] NZSC 67

M (SC34/2011)

v

THE QUEEN

Court:             Blanchard, McGrath and William Young JJ

Counsel:         G J King for Applicant
A Markham for Crown

Judgment:      20 June 2011

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] 

   [1]      M(CA438/2010) v R [2011] NZCA 84.

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]

   [2]In this Court, counsel for the applicant did not rely on s 49(3) which requires the leave of the court to be obtained when evidence of convictions is to be offered.  The Court of Appeal held that the prosecutor should have sought leave under s 49(3) of the Evidence Act before cross-examining on the husband’s convictions but also held that because leave could properly have been granted if sought, there was no miscarriage of justice, see [39]–[46]. 

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 evidence.  Section 85 of the Evidence Act (addressing questions that are improper or unfair) had no application to the cross-examination which was legitimately associated with the prosecutor’s attempt to establish a lack of objectivity.  Nor do we see anything in the miscarriage argument.

   [3]The material bore on the credibility of the expert (s 16(1)(o)(i)), the prosecutor cross-examined from a dossier prepared to assist in the conduct of the trial (s 16(1)(c)) and the information was publicly available and it was reasonably practicable for the defence to obtain the information (s 16(1)(l)).  As to the last point, the expert’s background and her husband’s convictions are in the public domain and would have been revealed by a Google search.

   [4]      As defined in s 37(5).

Solicitors:
Crown Law Office, Wellington