Background
TW was convicted by a jury of five charges of sexual offending against his young son, involving indecent touching and sexual violation over a period of years. He was sentenced to 12 and a half years’ imprisonment. The complainant had not immediately reported the offending, explaining later that he was too scared and had been threatened into silence. TW’s defence at trial was that the allegations were fabricated.
At trial, counter-intuitive evidence — addressing common misconceptions about the behaviour of child sexual abuse victims, including delayed reporting and continued contact with an abuser — was placed before the jury by way of an agreed statement of facts under s 9 of the Evidence Act 2006. The agreed statement was admitted by consent. TW’s appeal against conviction to the Court of Appeal was dismissed, though his appeal against sentence succeeded, reducing the term to nine years and ten months.
TW appealed his conviction to the Supreme Court, arguing that the counter-intuitive evidence was misused — particularly in the prosecutor’s closing address — and that the trial judge failed to give the mandatory directions required by the Court’s earlier ruling in DH v R [2015] NZSC 35. The appeal was heard alongside the companion case MB v R [2026] NZSC 76, which addressed the same principles in depth.
The Court’s Holding
By a majority (Winkelmann CJ, Miller and Cooke JJ; Ellen France and Kós JJ dissenting), the Supreme Court allowed the appeal, quashed the convictions, and ordered a retrial. The majority identified a series of compounding errors. First, the agreed statement of facts itself was problematic: paragraph 23, which stated that children are “most likely” to be sexually abused by family members or close associates, went beyond correcting victim-behaviour misconceptions and instead described the characteristics of offenders in probabilistic terms — terms that described the defendant himself. This risked diagnostic misuse and was materially similar to evidence the Court had flagged as inappropriate in DH.
Second, the prosecutor’s closing address linked the counter-intuitive evidence to the specific circumstances of the case — a connection the DH principles expressly prohibit. The concern is not merely whether the prosecutor reasons diagnostically; the prohibition is against any linkage that primes the jury to reason that the complainant’s counter-intuitive behaviour is itself evidence that abuse occurred. Third, and critically, the trial judge failed entirely to give the mandatory direction required by DH: that the counter-intuitive evidence says nothing about the credibility of the particular complainant, and that jurors must not use it to reason that behaviours such as delayed reporting are themselves indicative that the alleged abuse did or did not occur. The judge’s brief reference in summing-up to delayed complaint and the agreed facts was held to be wholly inadequate.
The majority rejected the Crown’s argument that the opening caution in the agreed statement (“this evidence does not prove or disprove that the complainant was sexually abused by the defendant”), the prosecutor’s opening description of the evidence as educative, and the mixed verdict together negated any miscarriage. Those features could not cure the absence of proper judicial directions, particularly where the evidence itself contained materially prejudicial content. The Court characterised this case as an illustration of the misunderstanding that continues to attend the proper use of counter-intuitive evidence.
Key Takeaways
- Counter-intuitive evidence must be limited to correcting specific misconceptions about victim behaviour; it must not describe the characteristics or conduct of offenders in probabilistic terms, even in agreed-fact form.
- Prosecutors may refer to counter-intuitive evidence when opening and closing, but must not link it to the circumstances of the particular complainant — any such linkage risks impermissible diagnostic reasoning by the jury.
- A trial judge’s failure to give the mandatory DH-direction — that the evidence says nothing about the credibility of the complainant and may not be used diagnostically — will ordinarily constitute a miscarriage of justice where the counter-intuitive evidence is also misused or expressed in prejudicial terms.
- A boilerplate caution in the agreed statement that the evidence “does not prove or disprove” the allegation is insufficient, standing alone, to prevent misuse; without more, it may confuse jurors rather than guide them.
- The Supreme Court’s detailed framework for counter-intuitive evidence is set out in the companion judgment MB v R [2026] NZSC 76, which should be read alongside this decision.
Why It Matters
This decision — together with MB v R — significantly tightens the rules governing counter-intuitive evidence in New Zealand sexual offence trials. Courts, prosecutors, and defence counsel must now ensure that agreed statements or expert evidence addressing victim misconceptions are tightly scoped to the specific myths at issue, stripped of probabilistic statements about offender characteristics, and accompanied by an express judicial direction in the precise terms mandated by DH. The practice of admitting broadly drafted agreed facts by consent does not insulate those facts from scrutiny on appeal.
The case also has systemic implications. The Supreme Court noted that practices around counter-intuitive evidence vary around the country and that this case is representative of a wider misunderstanding. Practitioners handling sexual offence trials — whether in New Zealand or comparable common law jurisdictions grappling with similar “myth-busting” expert evidence — should read the MB framework carefully and treat the absence of a proper jury direction as a significant appellate risk, regardless of how the evidence was formally admitted at trial.