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Taylor v The Queen

Taylor v The Queen

Case [2009] NSWCCA 180 2 July 2009

Appeal

Criminal Liability

Admissibility of Evidence

Section 293 Criminal Procedure Act 1983

Criminal Law

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Reported Decision: 200 A Crim R 342[2010] ALMD 170778 NSWLR 198

New South Wales

Court of Criminal Appeal

CITATION: Taylor v R [2009] NSWCCA 180

HEARING DATE(S): 4 June 2009 & 1 July 2009

JUDGMENT DATE:
2 July 2009

JUDGMENT OF: Campbell JA at 1; Latham J at 87; Harrison J at 88

DECISION: Conviction quashed; new trial ordered.

CATCHWORDS: CRIMINAL LAW – appeal and new trial and inquiry after conviction – appeal and new trial – miscarriage of justice – incompetence of counsel – whether accused lost a chance of acquittal by failure of counsel to articulate the grounds by which evidence was admissible under section 293 Criminal Procedure Act 1983 – whether the conduct of counsel is capable of rational explanation on forensic grounds – CRIMINAL LAW – evidence – evidentiary matters relating to witnesses and accused persons – evidence of sexual experience, reputation and morality – construction of the exceptions in section 293 Criminal Procedure Act 1983 – meaning of “relating to” and “relationship” – categories of exception to the prohibition to be construed broadly when there is material relevant to the case – proper procedure for an application under section 293 – WORDS AND PHRASES – “relating to”, “relationship”

LEGISLATION CITED: Crimes (Domestic and Personal Violence) Act 2007
Crimes Act 1900
Criminal Procedure Act 1986

CATEGORY: Principal judgment

CASES CITED: R v White (1989) 18 NSWLR 332
R v Beserick (1993) 30 NSWLR 510
HG v The Queen [1999] HCA 2; (1999) 197 CLR 414
R v Morgan (1993) 30 NSWLR 543
R v McGarvey (1987) 10 NSWLR 632
Dimian v R (1995) 83 A Crim R 358
Joye v Beach Petroleum NL (1996) 67 FCR 275
Oceanic Life Ltd v Chief Commissioner of Stamp Duties (NSW) [1999] NSWCA 416; (1999) 168 ALR 211; 154 FLR 129
Law Society of New South Wales v Bruce (1996) 40 NSWLR 77
R v Birks (1990) 19 NSWLR 677
Criminal Appeal Act 1912
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614; 225 ALR 161; 162 A Crim R 301
R v Henning (NSWCCA, 11 May 1990, unreported)
R v Warner (NSWCCA, 7 May 1997, unreported)

PARTIES: Colin John Taylor (Appellant)
The Crown (Respondent)

FILE NUMBER(S): CCA 2007/12705

COUNSEL: AJ Bellanto QC (Appellant)
V Lydiard (The Crown)

SOLICITORS: Mandy Hull & Associates (Appellant)
Director of Public Prosecutions (The Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/31/0266

LOWER COURT JUDICIAL OFFICER: Hulme DCJ

LOWER COURT DATE OF DECISION: 26 February 2008

2007/12705006

CAMPBELL JA
LATHAM J
HARRISON J
2 JULY 2009

Colin John TAYLOR v R

Judgment

1 CAMPBELL JA: In February 2008 the appellant was tried before Hulme DCJ (as his Honour then was) and a jury on a charge that, on 5 November 2006 and at a particular place, he: “… did have sexual intercourse with [ABC] without her consent, knowing she was not consenting…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Taylor v The Queen

Details

AGLC: Taylor v R [2009] NSWCCA 180
Case: [2009] NSWCCA 180
Decision Date: 2 July 2009

CaseChat Overview and Summary

In the case of Taylor v The Queen, the appellant, Taylor, sought a new trial on the grounds of a miscarriage of justice, specifically alleging the incompetence of his counsel. The appeal was concerned with whether Taylor lost a chance of acquittal due to his counsel's failure to articulate the grounds by which certain evidence was admissible under section 293 of the Criminal Procedure Act 1983. The High Court of Australia was tasked with determining the admissibility of the contested evidence and whether the conduct of counsel could be rationally explained on forensic grounds. The legal issues hinged on the interpretation of "relating to" and "relationship" as used in section 293 and the proper procedure for an application under this section.

The court examined whether the evidence in question was admissible under the exceptions provided in section 293, which pertains to evidence of sexual experience, reputation, and morality. The court held that the categories of exception should be construed broadly, particularly when there is material relevant to the case. It further found that the construction of "relating to" and "relationship" must be considered in the context of the specific case to determine admissibility. The court determined that the contested evidence was relevant and admissible as it related to the circumstances of the case. However, it also found that the counsel's failure to articulate the grounds for admissibility could not be justified on forensic grounds.

Consequently, the court ruled that Taylor's counsel was incompetent in failing to articulate the admissibility of the evidence, which resulted in a miscarriage of justice. The incompetence of counsel deprived Taylor of a chance of acquittal, warranting a new trial. The court's decision highlighted the necessity for counsel to properly argue the admissibility of evidence under section 293, ensuring that all relevant material is considered in the context of the case. The appeal was allowed, and a new trial was ordered.

Orders