Supreme Court denies leave to appeal conviction on cocaine, ketamine charges

Conviction and sentence appeals

The applicant brought conviction and sentence appeals. 

Allowing the sentence appeal, the Court of Appeal reduced the sentence to nine years’ imprisonment. However, the appeal court dismissed the conviction appeal. 

Request for leave to appeal

The applicant applied for leave to appeal from the appeal court’s denial of the conviction appeal. He alleged a substantial miscarriage of justice and matters of general or public importance under s 74 of the Senior Courts Act 2016 in his proposed appeal. 

The applicant asserted four grounds in his proposed appeal. Specifically, he sought to allege that: 

• There had been trial counsel error through a failure to call evidence from one witness 
• The prosecutor implied that the applicant’s position as a defendant impacted his credibility and thus undermined the presumption of innocence, and the trial judge exacerbated this by failing to provide a full tripartite direction 
• The trial judge failed to give a propensity evidence direction 
• The trial judge failed to provide expert evidence directions 

Arguments about trial counsel rejected

The Supreme Court denied leave to appeal upon discerning no sufficiently arguable proposed grounds of appeal to warrant issuing leave to appeal. 

The Supreme Court found a proper basis for trial counsel’s advice. Moreover, the court saw: 

• no reason to doubt the appeal court’s acceptance of trial counsel’s evidence that the applicant had instructed him not to call the witness 
• no merit in the applicant’s criticism of trial counsel 

Submissions about prosecutor rejected

The Supreme Court found legitimate points made in the prosecutor’s challenge to the applicant’s evidence. The court saw no merit in the arguments that the prosecutor: 

• engaged in propensity reasoning by referring to the applicant as a drug dealer due to his admission to cannabis dealing 
• infringed the presumption of innocence by referring to a motivation to lie in assailing his evidence 

Error relating to tripartite direction

The Supreme Court acknowledged the trial judge’s error in connection with the tripartite direction, but described such error as inconsequential. 

While the judge told the jury members that they should find the applicant not guilty if his evidence raised a reasonable doubt, the judge omitted to state that this would be so if they accepted the applicant’s version of the truth. 

The Supreme Court concluded that this omitted statement would have been obvious to the jury.

Detective sergeant’s opinion evidence

The Supreme Court acknowledged that the detective sergeant’s opinion evidence on the interpretation of the text messages should have prompted the judge to provide an expert evidence direction. 

The Supreme Court also accepted that it could criticise the evidence itself under the principles in Kuru v R [2024] NZSC 184. 

However, the Supreme Court found no real risk of a miscarriage of justice. The court noted that: 

• The prosecution evidence’s significance arose from the words in the text messages themselves, not from the opinion evidence regarding their meaning 
• The jury was dealing with a straightforward factual question 
• Cross-‍examination of the detective sergeant extracted concessions that the words could have meant something else, further limiting his opinion evidence’s significance 

More Supreme Court cases

Here are some other Supreme Court of New Zealand decisions in proceedings arising from convictions or sentences involving prohibited substances.

The Supreme Court issued a 3 July 2026 decision declining an application for leave to appeal against a Court of Appeal of New Zealand ruling that administrative errors in the production of a conviction history report did not constitute deliberate falsification. 

While acknowledging that it might later address the approach to s 86 of the Sentencing Act 2002, specifically in a case with a lengthy sentence and a low re‑offending risk, the Supreme Court made a 4 June 2026 decision denying leave to appeal two sentences. 

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