Crown sought to question proposed expert witness on prior misconduct
In a proceeding arising from the Crown’s intention to cross-examine a proposed expert witness about previous misconduct, the New Zealand Supreme Court found an application for leave to appeal moot, given the guilty finding against the applicant.
The applicant in C (SC 75/2026) v R [2026] NZSC 124 faced a sexual offending charge. He wanted to call a doctor as an expert witness in his defence.
The Crown provided notice that it planned to cross-examine the doctor regarding two episodes of misconduct that allegedly undermined his objectivity and impartiality in sexual offending cases.
In 2025, Judge Rowe of the District Court of New Zealand allowed the Crown to cross-examine the doctor on those matters.
On 18 June 2026, the Court of Appeal partly allowed the applicant’s appeal. The appeal court’s majority permitted the Crown to cross-examine the doctor on certain matters regarding the two incidents of misconduct.
Given the suppression and non-publication orders in place, in a permanent direction issued under r 5(2) of the Senior Courts (Access to Documents) Rules 2017, the Court of Appeal prohibited everyone except the parties’ counsel from accessing any judgments, orders, documents, or files about the applicant’s appeal without the appeal court’s prior permission.
On 16 July 2026, the applicant applied for leave to appeal before the Supreme Court.
In his notice of application for leave to appeal, the applicant stated that a jury trial was set for 24 August 2026 and that the doctor would be unavailable if the Crown could cross-examine him regarding the misconduct.
The applicant’s submissions filed on 27 July 2026 and the Crown’s submissions received on 3 August 2026 both provided that the trial was scheduled for 25 August 2026.
In a memorandum filed on 24 August 2026, the applicant advised that he had a new expert witness, even though the doctor would still be his preferred expert.
Following the trial, the applicant was found guilty.
The Supreme Court declined the application for leave to appeal. Considering the guilty verdict against the applicant, the Supreme Court found his leave application moot. The Supreme Court clarified that its decision did not bear on the applicant’s post-trial appeal rights.
The Supreme Court issued the same direction under r 5(2) of the Senior Courts (Access to Documents) Rules as the Court of Appeal of New Zealand had made.
However, the Supreme Court excluded its judgment from the coverage of the direction because it lacked any sensitive material.
Here are some other recent decisions by the Supreme Court of New Zealand.
In a case arising from a rape and murder, the court issued a 4 September 2026 decision refusing to reconsider the law to uphold tort claims for secondary victims’ mental injuries due to tortious acts beyond those resulting in a recognisable psychiatric illness or disorder.
In proceedings involving a man found guilty of sexual violation by rape, the court issued a 7 August 2026 decision denying his application for leave to appeal, considering it unnecessary in the interests of justice to hear and determine the proposed conviction appeal.
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