Taylor v R - [2010] NZCA 69

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY SECTION 139 CRIMINAL JUSTICE
ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA147/2009

[2010] NZCA 69

BETWEEN BRETT STEPHEN TAYLOR
Appellant

ANDTHE QUEEN Respondent

Hearing: 24 November 2009
Court: Arnold, Potter and Heath JJ Counsel: D L Stevens QC for Appellant
G H Allan for Respondent

Judgment: 16 March 2010 at 11.30 am

JUDGMENT OF THE COURT

A Leave to adduce new evidence is declined.

B The appeal against conviction is dismissed.

REASONS OF THE COURT

(Given by Heath J)

TAYLOR V R CA147/2009 16 March 2010

Table of Contents

Para No.

Introduction [1] The Crown case at trial [4] The defence case at trial [29] Jury directions

(a) Introductory comments [39]

(b) Reliability direction

(i) The purpose of a reliability direction [44]

(ii) Submissions [55]

(iii) Analysis [59]

(c) “Prejudice and sympathy” direction [74] Additional medical evidence [86] Was there a miscarriage of justice? [89] Result [97]

Introduction

[1] In December 2008, Mr Taylor was tried in the District Court at Palmerston North, before Judge Garland and a jury, on three counts: one of stupefaction and two of unlawful sexual connection with a male complainant. The jury returned a not guilty verdict on the stupefaction charge but found Mr Taylor guilty on the two sexual violation charges. On 24 February 2009, he was sentenced to a term of imprisonment of four years.[1]
[1] R v Taylor DC Palmerston North CRI-2007-031-0601, 24 February 2009.

[2] Mr Taylor appeals against conviction. On his behalf, Mr Stevens QC

advanced five grounds of appeal. They reduce to three broad headings:

(a)Ought the trial Judge to have given reliability directions about the way in which the jury should evaluate the complainant’s evidence?

(b)Did the Judge err in failing to give an adequate warning to the jury not to act on prejudice, based on the allegation that Mr Taylor had engaged in homosexual conduct?

(c) If further medical evidence before us had been adduced at trial, could that evidence have made a material difference to the jury’s deliberations?

Mr Taylor also seeks leave to adduce the “new” medical evidence. That application

is opposed by the Crown.

[3] Mr Allan, for the Crown, submits that none of the appeal points have any merit and, even if one or more did, no miscarriage of justice has resulted.

The Crown case at trial

[4] On 18 July 2006, Mr Taylor (who identifies as heterosexual) invited the male complainant (whom he had known for a period) to visit his home for dinner and drinks. Mr Taylor’s female partner was away in Auckland, working. His son, aged 9 years, was at home.

[5] When the complainant arrived, at between 5.30pm and 6.00pm, Mr Taylor was in the kitchen, cooking. He was wearing only boxer shorts. The complainant suggested, in his evidence, that he was offended by Mr Taylor’s state of undress.

[6] Mr Taylor, his son and the complainant ate dinner together. Both Mr Taylor and the…

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 R

Details

AGLC: Taylor v R [2010] NZCA 69
Case: [2010] NZCA 69
Decision Date: 16 March 2010

CaseChat Overview and Summary

Brett Taylor appealed against his convictions on two counts of unlawful sexual connection. The jury acquitted Taylor on a charge of stupefaction. The appeal was heard on three grounds: (a) whether the trial Judge ought to have given reliability directions about the way in which the jury should evaluate the complainant's evidence; (b) whether the Judge erred in failing to give an adequate warning to the jury not to act on prejudice based on the allegation that Taylor had engaged in homosexual conduct; and (c) whether additional medical evidence could have made a material difference to the jury's deliberations. The appeal was dismissed. The Court found that the trial Judge had adequately directed the jury on the need for caution in accepting the complainant's evidence, and that there was no need for a specific reliability warning. The Court found that the Judge's direction on prejudice and sympathy was insufficient in the circumstances of the case. However, the Court found that there was no real risk of unsafe verdicts on the sexual violation counts.

Orders