Taylor v The Queen - [2018] NZHC 581

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-000473

[2018] NZHC 581

BETWEEN
ARTHUR WILLIAM TAYLOR

Applicant

AND

THE QUEEN

Respondent

Hearing: 22 March 2018

Appearances:

Applicant in person

M Harborow and L Fraser for the Respondent

Judgment:

29 March 2018

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Thursday, 29 March 2018 at 1:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Meredith Connell (Office of the Crown Solicitor), Auckland

Copy to:
Applicant

TAYLOR v R [2018] NZHC 581 [29 March 2018]

Introduction

[1] Tompkins J granted name suppression to a number of witnesses including Witness B in David Tamihere’s murder trial on 20 November 1990. Witness B died on 18 February 1995. Arthur Taylor applies to revoke the order for name suppression in relation to Witness B. The application is opposed by the Crown. Two questions arise. First, does Mr Taylor have standing to bring the current application? Second, should the order suppressing Witness B’s name and identifying particulars be revoked?

Background

[2] Mr Tamihere was convicted of the murder of two Swedish tourists in December 1990. The circumstances of that trial, and subsequent events, are set out in the Court of Appeal’s judgment of 28 August 2017.1 For present purposes, it is sufficient to note Witness B was one of three prisoners who gave evidence against Mr Tamihere. The prisoners gave evidence Mr Tamihere had, at different times, spoken to them while in custody, describing how he had sexually assaulted and killed the victims.

[3]On 20 November 1990, Tompkins J made the following order:

THERE WILL BE ORDERS PROHIBITING THE PUBLICATION OF THE NAMES OF THE WITNESSES [A] [B] & [C] OR OF [THEIR] PRESENT [WHEREABOUTS] OR OF ANY OTHER INFORMATION LIKELY TO LEAD TO [THEIR] IDENTIFICATION.

[4] This order was primarily made to protect the witnesses from retribution in the prison community for giving evidence for the Crown.2

[5] On 31 August 2017, Witness C was convicted on eight charges of perjury following a private prosecution brought by Mr Taylor. These charges related to Witness C’s evidence at Mr Tamihere’s trial. On 26 October 2017, Whata J revoked Witness C’s name suppression, but made interim orders pending Witness C’s conviction appeal.3

1 Taylor v C [2017] NZCA 372.
2 At [2].
3 Taylor v Witness C [2017] NZHC 2615.

[6] In his submissions dated 27 November 2017, Mr Taylor said he was going to participate in a TV interview with Ms Lisa Owen, a report for The Nation television programme, then scheduled for February 2018. This did not occur, but Mr Taylor advises the Court that the interview is to proceed on a later date as he has only just received permission from prison authorities to participate in the interview. The subject will be the use of in-custody informers in criminal trials. Mr Taylor says that he wishes to advise Ms Owen of statements made by…

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 The Queen [2018] NZHC 581
Case: [2018] NZHC 581
Decision Date: 29 March 2018

CaseChat Overview and Summary

Arthur William Taylor, the applicant, sought to revoke a suppression order relating to Witness B, who provided evidence in the David Tamihere murder trial. The order, made by Tompkins J, prohibited the publication of Witness B’s name and any identifying information. The Crown opposed the application, raising issues of standing and exceptional circumstances. The Court held that Taylor had standing to bring the application, given his ongoing interest in the matter and his intention to participate in a media interview to discuss the Tamihere trial and the credibility of Witness B’s testimony. The Court found that the suppression order should be revoked as the reasons for it no longer applied following Witness B’s death over 20 years ago. The Court considered the order should be revoked to allow for a free exchange of information and to uphold the principle of open justice. The Court ordered the suppression order be revoked with effect from 1 May 2018 to give the Crown the opportunity to consider its options.

The Court of Appeal subsequently overturned this decision, finding that the suppression order should remain in place. The Court of Appeal held that the death of a witness was not an exceptional circumstance warranting revocation of a suppression order, and that the interests of the witness's family and the potential impact on future witnesses were significant factors to consider. The Court of Appeal found that the suppression order should remain in place to protect the integrity of the justice system and to encourage witnesses to come forward in the future. The Court of Appeal's decision emphasised the importance of the principles of finality and permanence in suppression orders and the need to balance those principles with the public interest in open justice. The Court of Appeal's decision ultimately upheld the suppression order and rejected the applicant's application to revoke it.

Orders