New Zealand Case Law: Decisions & Judgments

Topic

Fresh evidence admission

Legal area

Court

15 Dec 2022

ALLEN v R [2022] NZCA 630

Citation

[2022] NZCA 630
Court

Court of Appeal

A mandatory three‑strikes sentence breaches s9 only if it is cruel or disproportionately severe compared with the sentence that would properly have been imposed but for the regime, taking into account correct starting point, appropriate discounts (avoiding double benefit for plea concessions), offender's personal circumstances and parole impact; applying those principles here the Court found the correct 'but for' end sentence was three years, the parole impact was not disproportionate, and therefore the seven-year mandatory sentence did not breach s9; fresh Parole Board material was admitted…
17 Nov 2022

YOUNG v ZHANG [2022] NZCA 560

Citation

[2022] NZCA 560
Court

Court of Appeal

The Court refused to admit the proposed further evidence because it was not shown to be fresh, relevant or cogent under r12B; the evidence and submissions did not establish a miscarriage of justice; the consent order was binding when made; and the facts and chronology supported the conclusion that Ms Ying procured the sale in breach of the consent order with the necessary mens rea for criminal contempt, so recall was declined.
8 Jul 2020

WELLINGTON v R [2020] NZCA 277

Citation

[2020] NZCA 277
Court

Court of Appeal

Applying Zhang v R the appropriate starting point was reduced to 12 years; the psychological report confirmed severe addiction but did not establish that addiction, rather than profit motive and rational choice, primarily drove commercial‑scale offending; therefore only the starting point and consequential minimum period were adjusted, while personal discounts already applied remained unchanged and a modest minimum period (38% of end sentence) remained justified for significant commercial dealing.
26 Sept 2019

KEINO v R [2019] NZCA 457

Citation

[2019] NZCA 457
Court

Court of Appeal

Appellant made an informed, repeated, and documented decision not to give evidence after adequate advice from counsel; proposed fresh evidence was either not fresh or not credible and would not have produced a miscarriage of justice; sentencing starting point and discount were within established ranges; accordingly applications to adduce fresh evidence declined and appeal against conviction and sentence dismissed.
21 May 2019

CARROLL v R [2019] NZCA 172

Citation

[2019] NZCA 172
Court

Court of Appeal

The Court admitted the s27 cultural report as fresh evidence, found the sentencing starting point of 12 years was within the available range but reduced the sentence to reflect errors in the sentencing exercise (failure to give modest credit for EM bail and overstating violent criminal history) and mitigation identified in the s27 report, and substituted concurrent sentences of 10 years and six months' imprisonment.
20 Feb 2019

MEARS v R [2019] NZCA 9

Citation

[2019] NZCA 9
Court

Court of Appeal

The Court admitted the fresh evidence but held that, although the prosecutor and judge mistakenly suggested the appellant had viewed a specific video at 3:04am, other credible and corroborating evidence (notably mobile data records indicating probable video access at ~2:22am, circumstantial consistency, and the complainant's consistent account) meant there was not a real risk the verdict was affected; accordingly the appeal was dismissed.
4 May 2018

B (CA231/2017) v R [2018] NZCA 137

Citation

[2018] NZCA 137
Court

Court of Appeal

The Court refused leave to adduce the further affidavit because it was neither fresh nor cogent and the trial judge's summing-up accurately reflected the expert's evidence; the judge was not obliged to give an explicit s122 reliability warning because the reliability issues were fully ventilated and addressed in summing-up; demeanour directions taken in context were not misleading; however the sentencing judge erred in not applying discounts for youth and mental health consistently across offences, so the sexual offence sentences were set aside and substituted with reduced terms (concurrent)…
1 Feb 2016

JAMIE DION EDWARD GURRAN v R [2016] NZSC 1

Citation

[2016] NZSC 1
Court

Supreme Court

Leave to appeal was dismissed because the Court of Appeal had carefully addressed the s122 warning, fresh evidence, medical evidence and summing up and correctly concluded that any deficiencies did not create a real risk of miscarriage of justice and no matter of public importance arose.