Taylor v The King

[2024] NZHC 1013

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2022-419-70

[2024] NZHC 1013

BETWEEN

JEFFREY JOHN HAMILTON TAYLOR

Appellant

AND

THE KING

Respondent

Hearing:	19 and 20 March 2024
Counsel:	J Tarrant and S Taylor for Appellant Z Johnston for Respondent
Judgment:	30 April 2024

JUDGMENT OF MUIR J

This judgment was delivered by me on 30 April 2024 at 3.30 pm.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:

Crown Law, Wellington

TAYLOR v R [2024] NZHC 1013 [30 April 2024]

Introduction

[1]    Following a Judge-alone trial in the District Court before Judge R G Marshall, Mr Jeffrey Taylor was convicted of 17 charges involving offending of a sexual nature in relation to two young complainants and the possession of objectionable publications. On 21 September 2022, the Judge imposed a sentence of 18 years and six months’ imprisonment with a minimum period of imprisonment (MPI) of nine years and three months.1

[2]    Mr Taylor now appeals his conviction and sentence. He appeals his sentence on the sole ground that he was denied potential credit at sentencing for cultural factors due to counsel not pursuing a s 27 report as instructed. He appeals his conviction on the ground that a miscarriage of justice occurred by way of the following alleged errors:

(a)trial counsel error(s) and inadequate representation and advice;

(b)trial counsel failure to follow Mr Taylor’s instructions;

(c)errors in the Judge’s decision not to admit evidence relating to a false complaint by complainant SB;

(d)evidence at trial not being properly tested and leading to verdicts that were unreasonable;

(e)comments by the Judge implying that the trial was being rushed so as to avoid impacting other trials;

(f)a propensity discussion and ruling in the absence of defence counsel; and

(g)a change of election (jury trial to Judge-alone) made on the morning of trial.

1      R v Taylor [2022] NZDC 18490 [Sentencing Notes].

[3]    Both the appellant, Mr Taylor, and trial counsel, Mr Bell, have filed affidavits. In respect of Mr Bell’s evidence, privilege was waived.

Background facts

[4]I adopt the Crown’s comprehensive statement of facts.

[5]    In December 2019, the complainant AJ made various disclosures to her parents about Mr Taylor. AJ’s mother was at the time struggling with addiction. Mr Taylor was a friend who would help out by periodically providing care for AJ and her younger brother. Mr Taylor lived with his parents at the time, and the children would sometimes stay the night with them so they could be taken to school the next day.

[6]    AJ told her father she had been sleeping in Mr Taylor’s bed and he cuddled and kissed her, and she didn’t like it.

[7]    AJ was nine at the time of her Police interview and she presented as unsure of why she was speaking to Police. She talked about sometimes going to her mother’s friend Jeff’s house. She said, “Jeff’s actually a bad man” and “he tries to have sex with me”, and that he tried to put his “dick” in her. But she would not answer further questions and the interview concluded.

[8]    Mr Taylor was spoken to by Police. He said he had been helping to look after AJ as her mother had addiction issues and said AJ had slept on the couch and sometimes on his bed, but he had not slept in the same bed as her. He denied the sexual allegations, said he had concerns about some of the people in AJ’s life, and suggested she was being coached by her father “for Family Court purposes”.

[9]No charges were filed by Police at the time.

[10]   Six months after AJ’s interview, eleven-year-old SB was also interviewed by Police. Her mother — with whom Mr Taylor had previously been in a relationship — had found sexualised notes in her school bag and asked how she knew about such things. SB told her mother that Mr Taylor had “pushed his privates into mine”.

[11]   SB’s allegations related to events which pre-dated AJ’s disclosures. SB’s mother had met Mr Taylor in 2015. Their relationship ended in 2017. The evidence was that Mr Taylor would take SB and her sister back to his parents’ place from time to time, to give her mother a break. At first both girls went, but later Mr Taylor decided the younger sister was too much work and he only wanted t o take SB. SB would go home with Mr Taylor after school for an hour or two.

[12]   SB described being taken to Mr Taylor’s house where he forced her to take her clothes off and engage in sex. She said “he would make me bleed in the private parts and there was always this white pus-sy stuff afterwards”. She said he forced her to put her lips on his “privates”, and his privates would “go in the front and the back”. SB also said he would threaten her with a BB gun (or what she thought was a BB gun) he kept behind the door.

[13]   Mr Taylor told SB that if she looked suspicious, told anyone, or refused to go to his house then she would be in “the biggest trouble of her life”. She estimated she was eight when it started, and nine when it finished. At trial she indicated the time period was more like “about a month or two”, and not on a daily basis as she had said in her Police interview.

[14]   Police seized Mr Taylor’s computer and cellphone. Forensic examination of the devices revealed a large number of images of pre-pubescent girls naked or partially clothed and engaged in sexual acts. Included among the images were pictures of the complainants. Images of SB had been altered to sexualise her. There were images of AJ lying naked on a sofa and asleep, and images of AJ’s exposed genitalia, in one instance showing a thumb (the Crown case was that it was Mr Taylor’s thumb) penetrating her genitalia. Another image  was  of an  erect  penis  (the  Crown said Mr Taylor’s) adjacent to AJ’s exposed genitals. The images were described in the evidence of the officer in charge and were the subject of a statement of agreed facts at trial.

[15]   Some of the images contained metadata indicating they were taken on a Samsung SM-G530MU mobile phone running android version 4.4.4 software and

likely on the Telecom New Zealand network. This aligned with Mr Taylor’s phone, but it was not conclusive evidence that the photographs were taken by him.

[16]   The forensic examiner also identified a text conversation with a  friend  of  Mr Taylor’s called “Ben” which included sexualised references to AJ.

[17]   Mr Taylor was charged with detaining SB for sex, sexually violating her, and assault by dragging her by the hair. In respect of AJ, he was charged with putting his thumb in, and his penis against, her genitals, as well as making images of those two acts. He was also charged with making other images of AJ, editing photographs of SB to make them objectionable, taking photographs of an unknown child, and possession of other objectionable videos and images.

The trial

[18]   Mr Taylor’s jury trial was due to commence on 13 June 2022. There were some difficulties with preparation for trial and Mr Bell, his counsel, advanced an adjournment application on Mr Taylor’s behalf. However, the concerns which he identified were resolved, and the trial started the next day.

[19]   Mr Bell had recommended that Mr Taylor consider waiving his right to a jury trial, given the risk of prejudice from the objectionable image charges. Mr Taylor accepted that recommendation, and an application was made and granted.

[20]   At trial, both complainants were called and cross-examined, as were their mothers and AJ’s father. Doctors’ reports were presented (with neutral findings) and a computer forensic analyst produced a report and was cross-examined. Mr Taylor gave evidence and called his parents as witnesses.

[21]   The focus of the defence to AJ’s allegations was that they arose from frictions between Mr Taylor and AJ’s father. It was suggested that her father had told AJ negative things about Mr Taylor. Her father accepted he had “got it into [his] head without any real evidence or otherwise that something bad might have been happening to [AJ]”. The defence also suggested there had been other men who had stayed at AJ’s house with her mother, and that they may have taken the sexualised photographs of

her. Mr Taylor claimed he had found a Samsung phone at AJ’s mother’s house and had downloaded the content onto his computer. It was said to be a coincidence that the phone that took these photographs had the exact same specifications as his.

[22]   When Mr Taylor gave evidence, he explained his relationship with the mothers of the two complainants and how he would help the mothers out by looking after their children at times.

[23]   In respect of SB’s allegations, he said “It’s absolutely untrue and a horrific and horrible attack on me and I think her mother is behind it”. He denied having a gun. He said his father had a gun at the property, but it was locked in a gun closet. He denied editing photographs of SB to make them appear sexualised, but said he had “one or two associates” who “would’ve been doing that while smoking P… while hanging out at my house”.

[24]   In an oral judgment delivered on 23 June 2022, the Judge convicted Mr Taylor on all 17 charges faced by him. The Judge’s reasons for verdict were broadly critical of Mr Taylor’s credibility. He considered Mr Taylor’s explanation for how he claimed to be in possession of objectionable images of AJ, SB, and others to be fanciful. He described as “farcical”, attempts by Mr Taylor to suggest that sexualised text messages exchanged between Mr Taylor and associate ‘Ben’ were in fact about a rabbit and simply the product of Ben’s “twisted” sense of humour.

Sentencing

[25]   Mr Taylor was sentenced on 21 September 2022. The Judge identified the lead charge as the representative charge of sexual violation by rape involving SB. Taking into account culpability assessment factors and the aggravating feature of knowingly making an objectionable publication, the Judge considered that band four of the bands outlined in R v AM was appropriate.2 He set a starting point of 17 years, uplifted by one year for Mr Taylor’s offending against AJ, and a further six month uplift for the possession of the objectionable publication charges. Each uplift reflected the totality

2      R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.

principle, with the Judge identifying that the uplifts would otherwise have been higher. The end starting point was 18 years and six months’ imprisonment.

[26]   The Judge then went on to consider whether an MPI was appropriate. He was unable to identify any mitigating features of offending or offender, noting in particular a complete lack of remorse. He imposed an MPI of 50 per cent, or nine years and three months’ imprisonment.

Law on appeal

Conviction

[27]   The conviction appeal is advanced on the basis that a “miscarriage of justice has occurred for any reason”.3

[28]   Miscarriage of justice is defined in s 232(4) of the Criminal Procedure Act 2011 (the Act) as meaning:

… any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a)has created a real risk that the outcome of the trial was affected; or

(b)has resulted in an unfair trial …

[29]   A broad approach is required to determining whether something is an “error, irregularity, or occurrence” in or in relation to or affecting the trial, consistent with ensuring effective rights of appeal under s 25(h) of the New Zealand Bill of Rights Act 1990.4

[30]   In terms of s 232(4)(a), a “real risk” arises if there is a reasonable possibility that another verdict would have been reached. As the Supreme Court observed in Haunui v R:5

… If the answer to that question is “no” that is the end of the matter and the appeal will be dismissed. If the answer to that question is “yes” … the appeal

3      Criminal Procedure Act 2011, s 232(2)(c).

4      Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [37]; Misa v R [2019] NZSC 134, [2020] 1 NZLR

85 at [39], referring to R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730.

5      Haunui v R [2020] NZSC 153, [2021] 1 NZLR 189 at [67].

court then asks whether it is sure of guilt. If the answer is “no” the appeal will be allowed. If the answer is “yes”, the court determines the error did not in fact create a real risk that the outcome is affected and the appeal will be dismissed…

[31]   Irregularities which “plainly could not, either singly or collectively, have affected the result of the trial” are not miscarriages of justice for the purpose of        s 232(4).6

[32]   In terms of s 232(4)(b), the appeal court must also allow the appeal if satisfied that an error, irregularity, or occurrence has resulted in an unfair trial. A conviction from an unfair trial cannot be sustained even if a different outcome was unlikely or, indeed, inevitable.7

[33]   For an appeal to succeed under subs (4)(b), the error, irregularity, or occurrence has to be of sufficient seriousness to warrant setting aside the conviction, without further enquiry into the potential effect on the trial outcome. Examples include trial counsel error in respect of what are referred to as “fundamental decisions”, including decisions of plea, electing whether to give evidence and advancing a defence based on the defendant’s version of events.8

[34]   Where an appeal challenges the competence of trial counsel, the Supreme Court has emphasised the need for an appeal court to retain its focus on the question of whether a miscarriage of justice has occurred, rather than on whether there were shortcomings in counsel’s performance and how those shortcomings might be characterised.9

[35]   If the alleged failure or failures relate to matters other than the identified “fundamental decisions”, a miscarriage will generally only arise if the decision was not one a competent lawyer would have made and there is a real risk that as a result

6      Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].

7      Wiley v R, above n 4 at [37].

8      Hall v R [2015] NZCA 403 at [65]. In S v R [2018] NZSC 124, [2019] 1 NZLR 408, the Court

rejected an argument that a failure by a trial counsel to advise the appellant that he could be tried by a Judge-alone made the trial unfair.

9      Sungsuwan v R, above n 4 at [70].

the trial’s outcome had been affected. However, as the Supreme Court observed in

Sungsuwan v R:10

… while the ultimate question is whether justice has miscarried, consideration of whether there was in fact an error or irregularity on the part of counsel and whether there is a real risk it affected the outcome, generally will be an appropriate approach. If the matter could not have affected the outcome any further scrutiny of counsel’s conduct will be unnecessary. But whatever approach is taken, it must remain open for an appellate court to ensure justice where there is real concern for the safety of a verdict as a result of the conduct of counsel even though, in the circumstances at the time, that conduct may have met the objectively reasonable standard of competence.

[36]   Although any one error, irregularity or occurrence may not of itself result in an unfair trial, the cumulative impact of multiple individual errors may have that effect. Insofar as his appeal relates to trial counsel performance, Mr Taylor invokes this principle.

Sentence

[37]   This Court must allow the appeal if there is an error in the sentence imposed on conviction and a different sentence should be imposed.11 Otherwise, the Court must dismiss the appeal.12

[38]   The sentence must be manifestly excessive before the appeal court may substitute its own views as to the appropriate sentence. The Court will generally not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.13 Whether a sentence is manifestly excessive is to be assessed in terms of the final sentence given rather than the process by which it was reached.14

Grounds of appeal

[39]   As indicated, Mr Taylor advances multiple grounds of appeal. Counsel for the appellant groups them into the following four categories:

10 Above n 4, at [70].

11     Criminal Procedure Act, s 250(2).

12     Section 250(3).

13     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA 47 at [30].

14     Ripia v R [2011] NZCA 101 at [15].

(a)failures by trial counsel;

(b)admissibility of false complaint (the Judge’s Ruling (No 2));

(c)judicial actions during trial impacting fairness; and

(d)sentence appeal.

Failures by trial counsel

[40]   Mr Taylor identifies multiple alleged failures by trial counsel. Some of these grounds of appeal overlap.

Preparation for trial

[41]   Mr Taylor submits that his counsel was inadequately prepared for trial. In particular he says:

(a)Contact prior to trial was sparce. He did not meet with his counsel in person; phone calls and emails were, he said, unanswered and AVL contact rarely occurred.

(b)His brief of evidence was only finalised on the morning of trial.

(c)Counsel had not, by the commencement of trial, prepared notes in respect of evidence in chief, cross-examination, or a draft opening address.

[42]   The Crown accepts that aspects of trial preparation appear to have occurred at the last minute but says that this did not ultimately detract from the trial process. It says that Mr Taylor has not demonstrated that more time or greater preparation would have made a material difference to his case.

[43]   Mr Taylor’s arrest and subsequent remand in custody coincided with significant access restrictions on account of the COVID-19 pandemic. As a result, Mr Bell did not meet Mr Taylor in person until the morning of the trial. However, he

deposes to multiple instances of contact with Mr Taylor and his parents between assignment of the brief in August 2020 and trial commencement in June 2022. These were variously by phone, AVL from the District Court and, later, by VMR. I accept his evidence in this respect.

[44]   On his own admission, Mr Bell was not good at keeping “records of attendance with Mr Taylor”.  Indeed,  he was  only  able  to  identify  two  file notes,  one dated 9 December 2020 and relating to an in-person meeting with Mr Taylor’s parents and the other to a VMR attendance on Mr Taylor on 27 May 2022. But his various discussions were obviously sufficiently comprehensive that, by the morning of trial, he had settled a five-page brief of evidence in bullet point form. This ostensibly addressed the many factual issues arising in respect of each of the tranches of charges and evidences that Mr Bell had received reasonably comprehensive prior briefing from Mr Taylor.

[45]   Mr Bell’s evidence was that, from the outset, Mr Taylor’s defence in relation to the charges of sexual offending against both AJ and SB was one of complete denial, the complaints being fabrications which both girls had been “put to make up” by their mothers and in AJ’s case, her father. That defence is reflected in the brief of evidence.

[46]   In respect of the objectional material, the defence was that the material had either been downloaded accidentally or by others with access to his computer. Again, the particulars of that defence are developed in the brief.

[47]   On the morning of trial, the brief was reviewed by Mr Taylor. Various (comparatively minor) additions were made, and it was signed. It was accepted by Mr Bell that he had not earlier forwarded a draft to Mr Taylor in custody. He also accepted that although it was always intended that Mr Taylor’s parents be called as witnesses, no formal brief of evidence was prepared for them. Likewise, he accepted that he did not prepare written questions for cross-examination of either complainant.

[48]   As the Crown fairly concedes, aspects of Mr Bell’s preparation undoubtedly had something of a “last minute flavour” about them, particularly in respect of the absence of a road map for the cross-examinations and a written brief of evidence for

either of Mr Taylor’s parents. I accept that, in these respects, best practice was not followed. But departures from good practice must, in terms of the authorities, be sufficiently “gross”, “persistent”, “prejudicial”, or “irremediable” that there was a real risk the trial outcome was affected.15

[49]   I am not persuaded that Mr Bell’s departures are properly identified as being in this category. He was at the time a comparatively senior advocate with more than

20 years  post-admission  experience.  Under  cross-examination  by  counsel  for  Mr Taylor, his demeanour was relaxed, even, in popular parlance, ‘chilled’. But he was also straightforward, undefensive and direct. I have no doubt that he is not the sort of advocate who had to be perfectly scripted to be effective. And when I look, for example, at the way Mr Taylor’s parents’ evidence was led, there is no indication of inadequate briefing, failure to understand how their evidence might assist, or incoherence in approach.

[50]   As to Mr Taylor’s evidence, I consider the brief that was taken comprehensive, and again this was reflected in coherent evidence in chief, albeit, as the Judge ultimately found, evidence which lacked credibility in every material respect.

[51]   In respect of cross-examination, another lawyer might have cross-examined differently, perhaps even more effectively, but an appeal is not the place for such a “minute dissection”.16

[52]   I am satisfied that Mr Bell fully understood the Crown case, the defence response, and was adequately prepared to meet and advance these. To the extent there were departures from best practice, I am not persuaded that there was a real risk of these affecting trial outcome.

15     Stewart v R [2009] NZSC 53, [2009] 3 NZLR 425 at [32], referring to Randall v R [2002] UKPC 19, [2002] 1 WLR 2237 at [28].

16     Michaels v R [2014] NZCA 258 at [49].

Abandoned adjournment application (former principal, Oranga Tamariki and forensic evidence)

[53]   At the commencement of trial on 13 June 2022 Mr Bell indicated that if the trial was to proceed, he would be making an application to change the election from jury trial to Judge-alone. At 10.15 am, however, he advanced an adjournment application. The transcript of the exchange with the Judge includes the following:

Thank you Sir. So unfortunately, what it comes down to is that if I proceed currently, I do not feel that I can do a good job for Mr – that the evidence he wants to present can be put forward in the best light Sir. I accept I have had the carriage of this file for some time. What’s happened, your Honour, is a number of issues. Firstly, the – so I have lastly got engaged the private investigator to look at, to locate a potential witness who was a principal at the [redacted] School Sir, and in June 2018, as part of Family Court proceedings, Oranga Tamariki social workers did some background checks and some reports, and they spoke with the principal of the [redacted] School at which the complainant [SB] was, one of the complainants [SB], was a student. She has reported to have said that [SB] lies a lot. She is a big storyteller, lives in a vivid world of fantasy. That she has made some allegations in the past of being sexually abused by another child at school, that they did a thorough investigation but nothing was found. That the school had no concern for [SB] and that she appeared happy and well looked after.

So that, the principal’s name is [redacted]. She is retired now. Contact has been made with her but she has been in Wellington up until today and I had someone ready to speak with her this morning.

[54]Later he stated:

… and the other aspect of this too Sir is that there is some forensic analysis of the defendant’s computer and some images that were found on his computer. The images are said to have been taken by a cellphone that was searched and ceased and was found at the defendant’s property. I have instructions around those images and how they came to be on the phone, Sir, and to be blunt I haven’t engaged an expert but I think I should, to advance or to be able to either advance or further clarify the necessity, the client’s instructions as to that matter, Sir.

The other option Sir could potentially be a conversation with the analyst. Some questions, if I could ask and have answers to certain questions then that might suffice Sir but it’s the situation Sir.

Sir, I do regret making the application. I’ve discussed this with Mr Taylor. And he is supportive of me making the application to adjourn where he knows what that involves and we don’t know what, if it is adjourned, what sort of timeframes we may be looking at but the application to have a judge-alone trial stands. What it comes down to Sir, is that I’m in a position where I haven’t – if I’m going to proceed Sir I think it’s not going to be, or it’ll be a miscarriage of justice so potentially on, on the part of the defendant.

[55]   In his affidavit in support of the appeal, Mr Taylor  says that he requested   Mr Bell to “get a copy of my computer data from Police”, to pursue enquiries in respect of a previous false complaint by SB and to “follow up on Oranga Tamariki matters and Family Court matters regarding the complainants”. He says that on the morning of the trial Mr Bell advised him that he had “come unprepared and that it would be in my best interests to seek an adjournment on the grounds of having no confidence in him as my lawyer and to find a new lawyer”.

[56]   Mr Bell’s evidence was that when he met with Mr Taylor at court on the first day of trial, Mr Taylor was “understandably nervous about the trial”. He says that at that point he had not heard back from the private investigator regarding the false complaint evidence and that Mr Taylor asked him if there was any way the trial could be adjourned. He says, “I went through some of the grounds on which he could seek to have it adjourned, which could include the fact that he had lost confidence in counsel. He said he wanted it adjourned” and that as a result he made the application.

[57]The application itself was ultimately abandoned as a result of:

(a)Provisional indications by the Judge that he was not sure that an application to adduce evidence of a false sexual complaint against a fellow student when SB was six or seven would be substantially helpful in terms of s 37 of the Evidence Act 2006 given “what the allegations are here and it is nothing to do with students at school”.

(b)An agreed adjournment of the commencement of the trial to the following day, to facilitate provision of a brief of evidence from the former school principal and access to the relevant Oranga Tamariki reports.

(c)Discussions by Mr Bell with the Crown forensic analyst with the result that Mr Bell was able to advise the Court that “the matters that I was initially… concerned about I’ve been able to resolve…”.

(d)The facilitation of immediate access to the Oranga Tamariki reports by a handwritten minute from the Judge to the Family Court. As a result, the records were made available by early afternoon on 13 June 2022. After review, Mr Bell advised the Court “it does not have the information that I was led to believe that it might have in it”.

[58]   By the lunch adjournment on 14 June 2022 (at which point the Crown’s first witness SB remained under cross-examination), Mr Bell had received the four page written statement from the former principal of [redacted] School referring to the allegation by SB, when six or seven, that a fellow student had put his hand down her pants and the fact that on investigation SB admitted it had not happened and had withdrawn the complaint.

[59]   Subsequently, Mr Bell sought to adduce this evidence on an application engaging s 37 (and peripherally s 44) of the Evidence Act. In his Ruling (No 2), the Judge declined the application. That ruling is itself subject to challenge in this appeal and will be discussed subsequently.

[60]   Ultimately therefore, each of the issues which Mr Bell raised at the outset as the basis of an adjournment of trial and/or giving rise to a potential miscarriage — the delayed report from the private investigator, receipt of Oranga Tamariki records, and further digital forensic enquiry — were resolved by commencement of the Crown case or shortly thereafter. Mr Bell says that with these matters bedded down, he “discussed the matter with Mr Taylor, and he agreed to proceed with the trial”. That appears consistent with the fact that the adjournment application was not pursued beyond the submissions made at the outset on 13 June 2022.

[61]   I accept that again there was something of a ‘last minute flavour’ to the way in which Mr Bell operated and acknowledge that this may have undermined Mr Taylor’s confidence in his counsel. Best (even good) practice was not followed and, in the context of what were very serious charges this will always be a matter of concern to an appellate court. However, as Ms Johnston submits for the Crown, it is not sufficient for Mr Taylor to demonstrate a failure to undertake timely witness inquiry. To succeed

he must establish consequential prejudice.17 As she further submits, he has had two years in which to identify in what specific respects a miscarriage has resulted as a result of delayed preparation. He does not suggest how, for example, if the retired principal’s evidence had been earlier available, some better result could have been anticipated. He does not say how late receipt of the Oranga Tamariki information could have prejudiced his position, in circumstances where Mr Bell identified it as not containing the information anticipated (and where no contrary proposition is advanced on the present appeal). Nor does he identify what digital forensic evidence could have been obtained which might have exonerated him.18

[62]   I accept the Crown submission that it is not enough for the appellant simply to have raised possibilities on his appeal. He needed to demonstrate, by reference to further evidence which might have made a difference at trial, that Mr Bell’s late preparation created a real risk that the outcome of the trial was affected. It was incumbent on him to seek leave to adduce further evidence if that was available and probative. In Hall v R the Court of Appeal observed:19

[49]      We reiterate a point made in earlier cases but often overlooked about evidence which, on appeal, the appellant says should have been called to trial. If the appellant seeks to rely on such evidence, then unless the proposed evidence is in affidavit form there is simply nothing for the court to assess.

[50]      As the Court said in Micheals v R absent such evidence, the proposition the proposed witness might have helped the defence is speculative at best.

[63]   Similar principles apply in this case. There is simply no, or no adequate, evidential foundation for the proposition that the absence of timely witness or evidential inquiries resulted in a real risk to trial outcome.

[64]   Counsel for Mr Taylor is of course correct to say that Mr Bell should not have waited to the commencement of trial to resolve the admissibility of the former principal’s evidence. It should have been flagged at callover and been the subject of

17 O’Donnell v R [2010] NZCA 352 at [15], endorsed in Hall v R, above n 8 at [94]; Ross v R [2017] NZCA 587 at [36].

18  Noting that Mr Bell cross-examined the Crown expert sufficiently effectively that she recorded   she was unable to say with certainty that it was Mr Taylor’s phone that took the “user taken” photographs.

19 Hall v R, above n 8 (footnotes omitted).

a pretrial determination.20 I accept that Mr Bell’s failure to do so made for an untidy start to the trial and no doubt additional workload on him when there were other important calls on his time, including finalising cross-examination strategy. However, I am not persuaded that Mr Bell’s ultimate representation was materially undermined by his seemingly casual approach to this aspect of preparation. The admissibility issue was appropriately canvased, and a ruling given on the first day of the trial proper. There is no obvious indication from the transcript of evidence — nor any particular example referred to by counsel for the appellant — that Mr Bell did not ensure that his client’s case was properly put or that of the Crown appropriately tested.

[65]   In short, Mr Taylor does not demonstrate that more timely focus on the former principal’s evidence, the content of Oranga Tamariki reports or possible forensic digital evidence would have made a material difference to his case.

Change of election from jury to Judge-alone trial

[66]   Mr Taylor says that a change in election from jury to Judge-alone trial was made on 13 June 2022 in response to counsel advice that this “needed to occur”.    Mr Taylor says that he was inadequately consulted; that although he accepted the advice, it was given in error; and that “it would have been the right thing to do to go to a jury trial”. His affidavit suggests that the whole issue was first raised on the morning of trial “in the little interview room” but in cross-examination he accepted that a change in election had been under discussion for some time with Mr Bell indicating he could make a final decision immediately before commencement of trial. He says the principal advice given by Mr Bell for changing his election was that it “would be easier to appeal if we went Judge alone”.

[67]   Mr Bell could not specifically recall when he first discussed with Mr Taylor the possibility of changing his election but said that he believed this to be many months before the allocated trial date. He said that he was motivated to raise the issue because

20   Ms Johnston makes the valid point that this is as much for the Crown’s benefit as the defence, as it gives the Crown the opportunity to appropriately explore context for the false complaint. She acknowledges that a last-minute application could have implications for the defence if it meant there was no reasonable opportunity to identify other evidence supporting the allegations of falsity or otherwise undermining the complainant’s veracity but says that no such evidence was proffered on the appeal.

of the nature of the charges and particularly his belief that a judge would be better able to “compartmentalise” them, uninfluenced by the objectionable material found on Mr Taylor’s electronic devices.

[68]   He exhibited a file note of a VMR conference held with Mr Taylor two weeks before trial on 27 May 2022 which records:

1.Finalised BOE/response to the charges – see notes.

2.AT: pros and cons

: Nature of charges – child porn

Have discussed with parents and will talk to them about it.

[69]   He deposed that he did not say to Mr Taylor that he needed to change to a Judge-alone trial, saying the decision was Mr Taylor’s but that he did indicate that, in his assessment, there were good reasons for doing so.

[70]   In cross-examination Mr Taylor conceded that there had indeed been earlier discussions about the issue; that he knew it was ultimately his choice; that Mr Bell may have said that he could delay his decision until the morning of trial; that in addition to the “appealability” issue he may have talked about “compartmentalising”; and that there was a discussion about the prejudicial nature of the material found on his computer and how a jury might react to that.

[71]   I am satisfied that the change of election was freely and voluntarily made and on the fully informed basis that the authorities require.21 Nor was it made under any improper pressure having been raised well in advance of the trial in discussions which included Mr Taylor’s parents. Moreover, to the extent Mr Bell counselled a change of election it is difficult to identify any “error or irregularity” in his actions given the nature of the evidence, and in particular the objectionable images of both complainants, found on his electronic files. The more rigorous compartmentalisation that a judge might be expected to bring was an obvious consideration. Having

21     S v R, above n 8.

reflected on  the  evidence  available  to  the  Crown,  reviewed  the  transcript  of  Mr Taylor’s cross-examination and having had the benefit of myself observing him under questioning from Crown counsel, I have no doubt that Mr Bell’s advice to pursue a Judge-alone trial was not only competent but wise.

[72]   Mr Taylor fails to demonstrate either any error carrying a real risk that the trial outcome was affected, or which has resulted in an unfair trial. He understood he had an election to make and made it on a fully informed basis.

Failure to pursue a severance application

[73]   Mr Taylor says that his former counsel was in error in not pursuing a severance application, as a result of which, inadmissible cross-propensity evidence came to be considered at trial.

[74]   In his affidavit, Mr Bell deposes to discussing with Mr Taylor the possibility of separate trials for the two complainants and his belief that he initiated the discussion. He says that although he “considered it unlikely that severance would be successful in the circumstances, I did indicate to the court that severance would be sought”. Subsequently however, and after discussion with Mr Taylor, he says he withdrew that application. He says that Mr Taylor was at that stage indicating his belief that the parents of the two complainants had conspired together in making the allegations against him and that it would therefore be “better to not have severance of the charges”. I note in that respect Mr Taylor’s adherence, albeit faintly, to that theory in the trial where he said “There is a suggestion of collusion, they would’ve spent time as a – effectively a gang of jealous exes, collaborating…”.

[75]   The availability of severance typically turns on whether the alleged offences are interconnected and evidence in relation to each is admissible in relation to the other.22 In this case, counsel for Mr Taylor23 argues that three separate trials should have in fact occurred: one involving the allegations by AJ; one for those by SB; and a third involving the objectionable images of both AJ, SB, and others. He says that the

22     Keremete v R [2023] NZCA 105 at [32].

23     All submissions were made by Mr S Taylor. I have avoided referencing him by name on account of the obvious confusion that might occur.

allegations by the two girls had only very limited similarities, particularly when regard was had to the nature of the alleged sexual activity and that the prejudice arising from a cross-propensity admission was overwhelming.

[76]   I am unable to accept this submission. Indeed, I agree with the Crown that even without the collusion allegation, Mr Bell’s advice to abandon the application for want of any reasonable prospect of success was appropriate. There was in my view a strong case for the admission of cross-propensity evidence under s 43 of the Evidence Act. Both complainants were of similar age and both prepubescent.  In both cases  Mr Taylor assumed a caregiver role in the context of mothers who were struggling and vulnerable. All of the offending occurred within a three year period. As the Judge said in his reasons for verdict:24

[81] The evidence of objectionable images that Mr Taylor downloaded, the images of S and A on his computer and the evidence of S and A are admissible as propensity evidence in terms of s 43 of the Evidence Act 2006. It obviously has a prejudicial effect on Mr Taylor but the probative value is very high and any prejudicial effect is legitimate. It is relevant and goes to the issue of credibility of these two complainants in the identification of Mr Taylor as the person who sexually assaulted A. It shows a propensity of Mr Taylor to have an unusual interest in prepubescent girls and to act on that interest, as I have said, by sexually assaulting them. The evidence also mutually supports the evidence of S as propensity evidence as it is offending of a similar nature against a prepubescent girl of a similar age with whom Mr Taylor has formed a relationship with a vulnerable mother. It is in a similar timeframe.

[77]   Moreover, as the Crown submits, the charges involving sexualised images of both AJ and SB found on Mr Taylor’s devices could never realistically be severed from the charges involving offending against the girls themselves. They were, at a minimum, cogent evidence of sexualised interest in prepubescent girls, but in respect of AJ the images comprised a photographic record of the offending alleged against him. The trial Judge went further. He called it damning evidence. I agree. Indeed, it was probably the most damning evidence in the trial and if admissible in respect of both complainants as I consider it to have been (whether the trials were heard separately or together) then the risk of unfair prejudice from all charges being heard together abates accordingly. And, as things transpired, that risk was further mitigated by the change of election.

24     R v Taylor [2022] NZDC 21991 [Reasons for Verdict].

[78]   The various grounds of appeal alleging a miscarriage by virtue of trial counsel error or omission therefore fail.

Admissibility of false complaint (the Judge’s Ruling (No 2))

Background

[79]   Shortly after midday on the first day of the trial proper Mr Bell received the written statement of the former school principal of [redacted] School. At that point the complainant SB was under cross-examination. Before the cross-examination concluded he made applications under ss 37 and 44 of the Evidence Act to cross- examine SB based on [redacted] statement.

[80]   In a ruling delivered at 3.30 pm the Judge dismissed the application on the basis that he did not find questioning of SB about the earlier false or unsubstantiated complaint would be “of substantial help to me in determining the particular circumstances of this case”. That ruling is now challenged. Mr Taylor says it was in error and that there is a real risk that the outcome of the trial was affected by it.

The principal’s statement

[81]   The principal described receiving a complaint from SB’s mother when SB was about six or seven years old. The complaint was that “a boy in her class had got her behind the couch and put his hands down her pants”. In accordance with normal protocols the principal asked if she could speak with SB. She was given permission to do so. SB gave her the name of the boy and said the incident had happened in her classroom, behind a couch during class time. The principal then went to the classroom with SB. She observed that there was no couch in the room and that the layout was different to that which SB had described. She noted that any teacher would have had clear lines of sight to all parts of the room. She spoke with SB’s teacher to confirm that nothing had been reported to her. She then looked at the school roll and observed that the boy against whom the complaint had been made was not at school on the date of the alleged offending. She then spoke to SB who admitted that the incident had not happened, and the complaint was withdrawn. SB could not offer any explanation as to why she had made the complaint.

The Judge’s ruling

[82]   Judge Marshall concluded that the complaint was “on the face of it… false or certainly unsubstantiated”.25 That being the case, he did not consider s 44 of the Evidence Act, relating to questions in respect of prior sexual experience of the complainant, was engaged or that he needed to consider application of the old collateral evidence rule,26 the ongoing relevance of which was recognised by the Supreme Court in Best v R.27 He said it was not a case where “there is likely to be uncertainty as to the outcome of deliberations on that [earlier] evidence”. The Judge’s analysis therefore proceeded under s 37 of the Evidence Act which provides a party may not offer evidence in the proceeding about a person’s veracity unless the evidence is substantially helpful in assessing that veracity.  He noted the factors identified in   s 37(3) as indicators of whether evidence is substantially helpful or not, being:28

(a)lack of veracity on the part of a person when under a legal obligation to tell the truth (for example, in an earlier proceeding or in a signed declaration):

(b)that the person has been convicted of 1 or more offences that indicate a propensity for a lack of veracity:

(c)any previous inconsistent statements made by the person:

(d)bias on the part of the person:

(e)a motive on the part of the person to be untruthful.

[83]   He further noted that the complaint had been made to a person in authority (the school principal) but by SB’s mother, not SB, and that the complaint did not arise in the context of a person under legal obligation to tell the truth. He observed that neither s 37(3)(b), (c), or (d) applied and that in terms of s 37(3)(e) “an assessment of the fraudulent (sic) or maliciousness of the complaint is fraught with difficulty dealing with a six or seven-year-old”.29 He concluded:

[20]      My assessment of it is that an examination of the former complaint while it has some relevance is unlikely to be substantially helpful in the current case. The reason I say that is that this is a matter that had arisen some two years before the current proceedings. It was a complaint about a boy of a

25     R v Taylor [2022] NZDC 10838 (Ruling No 2) at [17].

26 At [17].

27     Best v R [2016] NZSC 122, [2017] 1 NZLR 186 at [77].

28     Evidence Act 2006, s 37.

29 Above n 25 at [18].

similar age to the complainant at that time six or seven years of age, putting his hand down the complainant’s pants. That is quite different from a serious of allegations over a period of time involving penile penetration of the complainant’s anus and genitalia and of oral sex.

[21]      That is an entirely different set of circumstances that bears little or no resemblance to the earlier false complaint, even if I accepted it at face value as a false complaint which on the current information I have would fit within those parameters. I have not asked the Crown to talk to the complainant about whether that complaint is false or not because I proceeded dealing with the assumption that it is a false complaint for the purpose of this application.

The appellant’s case

[84]   Counsel for Mr Taylor submits that evidence of a previous false complaint of a sexual nature was clearly relevant and helpful to the Court. He acknowledges differences between what was alleged in the false complaint and what was alleged against Mr Taylor. He acknowledges also the difference in age between the alleged classroom perpetrator and Mr Taylor but says that it is the fact that she lied about sexual assault at a young age which is substantially helpful, particularly so because the complaint involving the boy was made when SB was six and the alleged offending against her by Mr Taylor was when she was eight or thereabouts. Counsel relies on the observation in Best v R that:30

[93] In the event that the complainant did acknowledge that the complaint was false (that is, she acknowledged that she lied and did consent to the sexual intercourse with M and/or that that oral sex did not occur) then it is difficult to see why such a false prior complaint about sexual activity only a year before could not be substantially helpful in assessing her veracity.

[85]   He submits that the impact of the earlier accepted lie is “heightened” by the fact that, during cross-examination, SB accepted that when, in context of her evidential video interview, she said that she was “about eight” when the offending first started and “probably nine I guess” when it concluded, she was being “a bit dramatic” on the basis that “I don’t think it was that long”. He also refers to her acknowledgement in re-examination that her EVI evidence that the offending against her had been “everyday” or “pretty much everyday” was also an “exaggeration”. Counsel submits that this is an indication of her propensity to yet again lie, this time to police and in

30     Best v R, above n 27.

that context the earlier false complaint was substantially useful in assessing the credibility of the allegations against Mr Taylor.

The Crown response

[86]   Ms Johnston contrasts the case with Best v R where the previous false complaint was made to the police in the context of a recorded interview, and emphasises that here the false allegation was made initially to the complainant’s mother, and when challenged by the school principal, was immediately acknowledged as untrue. She says that because there was no formal statement or EVI, s 37(3)(a) is not engaged. She also emphasises the young age of SB at the time of the false complaint — only six years old — and the appropriateness of the Judge’s conclusion that any assessment of her motive was fraught with difficulty. She contrasts this with the age of SB at the time of the complaint against Mr Taylor (SB was 11 years old at the time of her EVI, recounting events that happened when she was between eight and nine). She also emphasises that the nature and circumstances of the false complaint bear little or no resemblance to the trial allegations, involving as they did a minor alleged sexual assault by a boy of a similar age, when Mr Taylor’s offending was that of someone in his thirties and involved oral and penetrative sex.

[87]   She says that even if I were to find error in the Judge’s ruling, there is no real risk that the outcome of the trial was affected. She submits that in circumstances where SB readily acknowledged some exaggerations in her earlier EVI but maintained the veracity of her core complaints, the proposition that the earlier accepted falsehood might “heighten” the impact of the exaggerations is unpersuasive. She submits that given the quality of the cross-propensity evidence available against Mr Taylor in respect of the allegations by SB, and in particular the existence of sexualised images of her on his devices and other sexual images involving pre-pubescent girls (including the violation of AJ), a singular previous lie would not have raised a reasonable doubt in the mind of any decision maker and that the test for a miscarriage of justice is not therefore engaged.

Discussion

[88]   The Supreme Court decision in Best v R enjoins a two-step analysis by which, in terms of s 37, the court inquires into whether the proposed evidence is substantially helpful, and assuming it is, whether in terms of s 44(2), it would be contrary to the interests of justice to exclude it.31

[89]   In my view the Judge was correct in concluding that the proposed evidence was unlikely to be substantially helpful. None of the criteria in s 37(3) were engaged. SB was only six years old at the time (two to three years younger than at the time of the offending by Mr Taylor). Further, the complaints were so significantly different in terms of the age of the perpetrator, circumstances of alleged offending, and nature of offending that evidence of falsity on the earlier occasion could in my view, only be said to have peripheral relevance in respect of the veracity of the later complaints.

[90]   The case is very different from that in Best v R in that there was no formal statement in circumstances where there was a legal obligation to tell the truth. Moreover, there was no persistence in maintaining the falsity which was readily acknowledged to the principal.

[91]   Nor am I persuaded that in any substantial or even material way the false complaint evidence would have augmented the impact of the acknowledged exaggerations in the EVI. Again, these were readily acknowledged. The job of the Judge was to assess whether, despite that acknowledgement, the core allegations were true. I’m unable to see how admission of the evidence of the earlier false complaint would have substantially assisted him in doing so.

[92]   For similar reasons, I do not consider the proposed evidence of such direct relevance to any issue in the proceeding that it would be contrary to the interests of justice to exclude it. Section 44(2) has a prophylactic purpose.32 An enhanced relevancy test is therefore imposed. Here, as the Judge acknowledged, evidence of a false complaint of a sexual nature (albeit of modest alleged offending by a very young

31     Best v R, above n 27 at [78].

32     H v R [2022] NZCA 515 at [79].

boy) had ‘some relevance’ in an assessment of SB’s credibility. However, I do not, in the circumstances I have explained, consider it directly relevant to that inquiry.

[93]   I also regard as persuasive the Crown’s argument that the quality of the propensity evidence was such, and the defendant’s efforts to distance himself from it so fanciful, that even if the decision to not permit cross-examination on the statement was wrong, it is very difficult to identify any real risk that the outcome of the trial was affected. Again, my earlier discussion refers.

[94]This ground of appeal therefore fails.

Alleged judicial actions during trial impacting fairness of trial

[95]   Mr Taylor’s grounds of appeal include allegations that the Judge made comments during the trial that imply that it was being rushed to avoid impact on other trials, and that he engaged in a propensity discussion and made a ruling in the absence of defence counsel.

[96]   His counsel did not advance these arguments, noting that in the absence of a transcript of the in-court proceedings there was no proper evidential foundation for them. Because the unavailability of the transcripts had been raised in the appellant’s written submissions, I convened a pre-appeal hearing to identify whether any adjournment was sought. I was advised that Mr Taylor wished to maintain the appeal fixture. At the commencement of appellant’s submissions, I made the following trial book entry after discussion with counsel:

I raised this at the pre-trial conference, was told the transcripts were unavailable and that counsel wished to proceed with the appeal on the basis that, in the absence of such evidence, I would dismiss that aspect of the appeal.

[97]I dismiss the relevant appeal point accordingly.

Sentence appeal

[98]   The sole ground advanced on the sentence appeal relates to an alleged failure to obtain a s 27 report for the purposes of sentencing. Mr Taylor says that he instructed

Mr Bell to obtain such a report but that he did not do so on the basis of his own assessment of the utility of such a report.

[99]   The issue was not pressed at the hearing. Counsel for Mr Taylor acknowledged that if a sentence appeal were to be entertained on the basis advanced, then it would be necessary to seek leave to introduce a s 27 report which, supported some discount. No such report was proffered.

[100]   In that context, counsel acknowledged that I would have no alternative but to dismiss the appeal, although encouraging me to identify Mr Bell’s failure to obtain the report as part of a pattern of wider counsel failings.

Result

[101]I dismiss the conviction appeal.

[102]I dismiss the sentence appeal.

……………………………..

Muir J