Pora v The Queen

Expert evidence on an ultimate issue is not automatically admissible merely because Evidence Act 2006 section 25(2)(a) removes the common-law exclusion. The court must still assess relevance, reliability and likely assistance to the fact-finder. Experts must not supplant the tribunal by asserting the ultimate conclusion. On a criminal appeal, credible evidence may be admitted despite not being fresh where excluding it risks a miscarriage of justice and it could affect the safety of the conviction. Courts must approach confession evidence with particular care. A confession may be false even without police coercion, and evidence of neurodevelopmental impairment may provide a material explanation for its unreliability.

The appellant was convicted of rape, murder and aggravated burglary. His first convictions were quashed in 1999 after the Court of Appeal considered evidence concerning Malcolm Rewa, who had been convicted of the rape. A retrial conviction appeal was dismissed by the New Zealand Court of Appeal in October 2000.

Before the Privy Council, the appellant challenged the reliability of his confessions and argued that evidence of Rewa’s erectile dysfunction should have been admitted. He also sought to introduce fresh expert and other evidence. The central issues were whether the new evidence was admissible and whether its exclusion or the existing evidence created a risk that the convictions were unsafe.

The Board, in the judgment delivered by Lord Kerr, allowed the appeal and held that the convictions could not safely stand.

1. Expert evidence. Section 25(2)(a) of the Evidence Act 2006 modified, but did not abolish, the common-law restriction concerning expert evidence on the ultimate issue. The fact that an opinion concerns an issue for the jury does not itself make it admissible. The court must still determine admissibility, applying the requirements of relevance, reliability and helpfulness or substantial assistance, as illustrated by R v Phillips HC Rotorua CRI-2007-070-1765, R v Cooper [2007] NZCA 481, Mahomed v R [2010] NZCA and R v Calder HC Christchurch T 154/94, 12 April 1995. An expert should generally address the ultimate issue only where that is necessary to provide substantial help, and must leave the tribunal to evaluate the evidence. Professor Gudjonsson’s evidence was excluded because it asserted that the confessions were unreliable and involved an impermissible forensic analysis.
2. Fresh evidence. Applying the sequential approach in Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273, the Board admitted Dr McGinn’s and Dr Immelman’s evidence. Although it was not fresh because it could have been obtained with reasonable diligence, it was credible and capable of materially affecting the safety of the convictions. The other affidavits were not admissible or did not satisfy the miscarriage-of-justice threshold.
3. Confessions and safety. The intuitive assumption that a confession must be true is unsafe. The court must scrutinise apparently reliable confessional evidence, including possible explanations for a non-coerced false confession. The Board’s reasoning was consistent with R v Oickle [2000] SCR 3 and Television New Zealand Ltd v Rogers [2007] NZSC 7, [2008] 2 NZLR 277. The contradictory and implausible confessions, combined with the FASD evidence, established a risk of miscarriage of justice.
4. Rewa evidence. The failure to adduce evidence of Rewa’s erectile dysfunction did not independently create that risk. The suggested inference was speculative, and the offending against Ms Burdett had materially different features from Rewa’s other attacks.
5. The convictions were quashed. The parties were invited to make written submissions within four weeks on whether a retrial should be ordered.

1. Privy Council: Allowed the appeal, quashed the convictions and invited written submissions on whether a retrial should be ordered.
2. New Zealand Court of Appeal: In October 2000 dismissed the appeal against the retrial convictions.
3. New Zealand Court of Appeal: In 1999 allowed the earlier appeal, quashed the convictions and ordered a retrial after considering the Rewa evidence.
4. New Zealand Court of Appeal: On 3 June 1994 dismissed the appeal against Henry J’s ruling admitting the confessions.
5. High Court: On 8 March 1994 Henry J ruled that the confessions were admissible.