Taylor v The the King
[2022] NZCA 626
•14 December 2022 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA55/2005 [2022] NZCA 626 |
| BETWEEN | BERNARD TAYLOR |
| AND | THE KING |
| Hearing: | 23 February 2022 |
Court: | Cooper, Katz and Palmer JJ |
Counsel: | S J Gray and E P Priest for Appellant |
Judgment: | 14 December 2022 at 11.00 am |
JUDGMENT OF THE COURT
A The notice of abandonment of the appeal is set aside.
BThe application to adduce the evidence of Charlie Taylor in support of the appeal is declined.
CThe appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Cooper J)
| Table of Contents | |
| Para No | |
| Introduction Counsel error — election not to give evidence Advice not to give evidence No opportunity to review video statement Failure to prepare a brief of evidence for Mr Taylor Counsel error — failure to call Charlie Taylor Counsel error — summary Prosecutor’s closing address Result | [1] |
Introduction
The appellant, Mr Bernard Taylor, was found guilty following a trial before Hugh Williams J and a jury on two charges each of murder and causing grievous bodily harm with intent. The Judge convicted and sentenced him to life imprisonment, ordering that he serve a minimum period of imprisonment of 17 years.[1]
[1]R v Taylor HC Auckland CRI-2004-047-7, 15 February 2005 [Sentencing notes] at [46].
The offending occurred on 3 January 2004. The trial took place between 13 and 16 December 2004. After his sentencing, Mr James Faleauto was assigned to act for Mr Taylor on legal aid and an appeal against conviction was filed. However, in the circumstances we explain below, Mr Taylor decided to abandon the appeal and a notice of abandonment was filed at some time prior to 19 September 2005, when it was accepted by this Court. Mr Taylor now seeks leave to withdraw the notice of abandonment and proceed with the appeal.
If the appeal can proceed, Mr Taylor alleges that there was a miscarriage of justice, in particular because of errors made by trial counsel. One of the difficulties we face is that given the length of time that has elapsed since the trial, the memories of the experienced counsel who acted for Mr Taylor, Mr Roger Chambers and Mr Hugh Leabourn, have understandably faded. And they have not been able to access Mr Taylor’s file to refresh their memories because it was passed to Mr Faleauto and has not been able to be recovered.
The relevant substantive law governing the appeal is s 385 of the Crimes Act 1961, which requires the Court to allow the appeal if we are of the opinion, relevantly, that there has been a miscarriage of justice.
The notice of abandonment
Prior to considering whether there has been a miscarriage of justice, we must first address the question of whether the notice of abandonment should be set aside.
This Court outlined the test to be applied when it is asked to set aside a notice of abandonment in Cramp v R.[2] After reviewing various authorities the Court confirmed that there is power to set aside a notice of abandonment not only where the notice is properly regarded as a nullity, but also where there are exceptional circumstances and if the interests of justice so require.[3] The nature of the exceptional circumstances was explained in Bridgeman v R:[4]
[9] In considering whether such exceptional circumstances exist, the Court will have regard to the importance of finality in criminal cases, the circumstances in which the Notice of Abandonment was given, and the necessity for an applicant for such an order to satisfy the Court that the reasons for the application are of an exceptional nature.
[2]Cramp v R [2009] NZCA 90. We note that the Court referred to its power to set aside the notice of abandonment and give leave to withdraw the notice: compare [20] and [26] with [27] and [34]. The terms appear to be used interchangeably. The Court’s conclusion was that there was no proper basis for allowing withdrawal of the notice of abandonment: at [35]. However, the order recorded on the front page of the judgement dismissed the application to set aside the notice of abandonment. We can see no substantive difference between the two expressions and also treat them interchangeably in this judgment.
[3]At [26].
[4]Bridgeman v R CA87/04, 10 November 2005.
Mr Taylor has not made a formal application in respect of the notice of abandonment, but Ms Gray argued orally that it was a nullity. We doubt that is the correct analysis: on his own evidence Mr Taylor decided to abandon the appeal.[5] The questions are rather whether the circumstances in which Mr Taylor decided to do so can properly be considered to be exceptional, and whether the interests of justice favour setting the abandonment aside.
Circumstances of the abandonment
[5]For a discussion of nullity threshold, see R v Medway [1976] QB 779 (CA).
The circumstances of the abandonment of the appeal are addressed in affidavits filed by Mr Taylor and his mother, Mrs Isabella Taylor.
In his affidavit, Mr Taylor said that after his conviction a family member made contact with Mr Faleauto and asked him to represent Mr Taylor on appeal.[6]
[6]Both the appellant and Mrs Taylor gave evidence about their interactions having been with Mr Ted Faleauto, but Ms Gray clarified that was incorrect and it was Mr James Faleauto who was involved. Nothing turns on this issue, but it is important we record the true position. James Faleauto was struck off the roll of barristers and solicitors of the High Court in 2010. A waiver was provided to enable him to be spoken to by the Crown, but attempts by the Crown to contact him were unsuccessful.
In her affidavit, Mrs Taylor said that she and her husband had gone to see Mr Faleauto. He told them the appeal would cost $10,000 and further payments might be required. They paid the $10,000 about a week later. Mrs Taylor said she was not aware that legal aid could be obtained. She said Mr Faleauto said he would visit Mr Taylor in prison, which he did about two weeks later.
Mr Taylor said that Mr Faleauto came to see him. He recalled signing an application for the purposes of legal aid, which was granted. But he remembered seeing Mr Faleauto only once before deciding to abandon the appeal. He said Mrs Taylor told him about the $10,000, saying she would mortgage the family home to raise the money, but he would not allow that to happen: his parents were not well off and their home was their only asset. The relevant background also included the fact that his father was suffering from cancer at the time. So, he told his mother he would not agree. Mr Taylor said he had no idea that what Mr Faleauto was doing was wrong, and thought that was just how the system worked for appeals. He said he did not talk about this with anyone else and simply accepted the situation.
Mrs Taylor gave a slightly different account. She said that after Mr Taylor’s meeting with Mr Faleauto, Mr Taylor telephoned her, saying that he did not like Mr Faleauto and that he had kicked Mr Faleauto out of the room. He told her to get the money back. A few days later she rang Mr Faleauto and asked him to return the money. Nothing happened until she spoke to “a lady at the court” who promised to look into it. Some months later, $5,000 appeared in her bank account. She could not remember where it came from. She took no further action to secure the balance.
Mr Taylor said that it was only after discussing his case with a fellow prisoner, something he had not done for “many many years”, that he made contact with Ms Gray. He then learned that he had a right to appeal his convictions and may do so with the benefit of legal aid. He now seeks to proceed with an appeal against his convictions.
We think these facts demonstrate that the context in which the appeal was abandoned were exceptional. And once it is accepted that Mr Taylor made his choice to abandon the appeal in the context of Mr Faleauto’s unsatisfactory conduct, that must be relevant to the question of whether the interests of justice favour setting aside the notice of abandonment.
Ms Hoskin for the Crown points out that Mr Taylor’s affidavit explains the reasons he decided to abandon his appeal, but it does not address the reasons for his delay in taking the present action, other than to say that he just accepted the position.
That may be so, but the fact is for 16 years he took no steps. This can only be because he did not understand that Mr Faleauto had no right to make a demand for payment. It seems most unlikely that he would have deliberately refrained from pursuing an appeal on legal aid had he known he could do so without cost.
In a case where there has been such a long delay the importance of the interests of finality may become more pronounced. We were not referred to a case where a notice of abandonment has been set aside after such a long delay. In Cramp the Court considered that the merits of the proposed conviction appeal were relevant to whether to set aside the notice of abandonment. It concluded that the proposed grounds of appeal lacked merit and therefore there was no proper basis for allowing withdrawal of the notice; in the circumstances, the interests of finality should prevail. [7]
[7]Cramp v R, above n 2, at [35].
We follow a different approach in this case, because we are satisfied that the clear link between Mr Faleauto’s misconduct and the abandonment of the appeal are such that the interests of justice point clearly to allowing the appeal to proceed, notwithstanding the interests of finality. So we set aside the notice of abandonment and turn to consider the merits of the appeal.
Where a notice of abandonment is to be set aside, the effect must be that the original appeal is resurrected so that it is not necessary to extend the time for appealing: there is no suggestion that the appeal was not filed in time. The grounds of the appeal have now been particularised in a way that they were not at the time, but that is simply a question of amendment of the grounds, not the commencement of a new appeal.[8]
The alleged offending
[8]The foregoing discussion means that we do not address Ms Hoskin’s argument that leave should not be granted to extend the time for appealing. This is an issue that does not arise.
The Crown’s case was that Mr Taylor was at his home in Port Waikato with his extended family and friends during New Year celebrations on 31 December 2003 and the days thereafter. There was a party that lasted until the early hours of 3 January 2004, when one of the teenagers at Mr Taylor’s property, Mr Lee Boison, became involved in an altercation with three teenagers passing by the property on foot. At the time of this incident, Mr Taylor, his brother Charlie and others were sitting around a bonfire situated towards the rear of a vacant section next door to Mr Taylor’s property.
The passers-by met up with a group of friends whom they told about the incident with Mr Boison. About 16 members of this group decided to return to Mr Taylor’s property. On arriving outside the property, they began swearing at those on the property including by using derogatory gang-related language. Mr Taylor and his associates were regarded as linked to the Mongrel Mob; the other group was associated with Black Power.[9] As Hugh Williams J put it, in a ruling that the defence of provocation was available to Mr Taylor, the members of the group trading insults from the roadside were “clearly spoiling for a fight” and, after further angry exchanges, “they then invaded the property in some numbers”.[10]
[9]Mr Taylor maintained he had no links to the Mongrel Mob, although some at his party did. He often wore red, but that was because it was his favourite colour.
[10]R v Taylor HC Auckland CRI-2004-057-7, 15 December 2004 at [5].
A fight developed and bottles were thrown by each group. Charlie Taylor walked down from the bonfire to the bottom of the property to join the fracas but he was outnumbered. Mr Taylor and some others went to Charlie’s aid. Mr Taylor had armed himself with a boning knife and, in the fight that ensued, stabbed four of the teenagers in the invading group. Two were killed. One of the deceased, Mr Hiko Clark, suffered a stab wound that was 10 cm deep and pierced his heart. The other, Mr Tahiwi Herangi, suffered a stab wound that was 13 cm deep and pierced his liver.
The Crown rejected Mr Taylor’s claim that he had acted in defence of himself, his brother Charlie and other family members. In closing, the prosecutor claimed that Mr Taylor brought the knife into the fight out of “anger and frustration” against a background of ongoing conflicts with young men associated with the Black Power gang in the Port Waikato area, based on the perception he was a member of the Mongrel Mob. It was asserted that on the night Mr Taylor was finally pushed beyond breaking point and took the knife into the fight to ensure “this will not happen again”. The prosecutor said:
… [Mr Taylor] is sick and tired of being given a hard time by these young guys, and he is going to teach them a lesson they will not forget, and this will not happen again.
Mr Taylor’s interview
Mr Taylor gave a videotaped interview to the police later on the day of the offending. It commenced shortly after 1 pm and continued to 3.25 pm. He initially denied that he had been involved in any fighting, but the interviewer, Detective Constable Stevenson, told him that others who were present had said they had seen him fighting. There was this exchange:
Q.… Because um the thing is Bernie that they’ve all said that they saw you fighting. That people from the address went down and and fought these guys because they came on to the property.
A.… Did they, oh? … Oh, I don’t know where they get that from.
Q.So you didn’t go and fight them?
A.No.
Q.They say that um basically you, your brother Charlie, Wayne, Lee, Brian were all involved in the fight.
A.Oh … oh. …Oh like I said I was wasted as man, I …
Q.You did go and fight them didn’t you Bernie?
A.Well only because they came on the property.
Q.Yeah. How many guys came on the property?
A.I’m not really too sure. I’m not really too sure because it was quite dark.
Q.Mm.
A.It’s the darkest part of the house where we were sitting in the front there. They just come piling over, yeah. I was wasted as bro.
Q.Who were you fighting?
A.Well that’s it, got me.
Q.Mm.
A.Yeah.
Q.You know you were fighting though eh?
A.Well I must have been if they said so. I I’ve got a bit of an earache so maybe I did cop one in the ear.
Shortly after this exchange, Mr Taylor claimed that he had seen members of the invading group with knives, and that his brother Charlie had been cut under the chin. Under further questioning he admitted that he did not see that happen, and he was not sure whether Charlie’s injury was from a cut from a knife or from a broken bottle. After the fight was over, Mr Taylor described sitting back down around the fire. Charlie had cleaned up and they had burnt his singlet on the fire because it was ripped.
Mr Taylor was questioned on the basis that one of the persons stabbed and in hospital had described his attacker in terms that were consistent with Mr Taylor having been responsible. That was principally because Mr Taylor was bald, unlike all the others in his group. Mr Taylor denied having stabbed that person, but under further questioning, admitted that he must have done so. The interview continued:[11]
[11]The interview transcript we have seen contained a number of pencilled edits, some of which are illegible. At trial, Detective Cryer, who had reviewed the transcript, confirmed the wording of the most significant pencilled edits and that the other edits were insignificant. We have included the edits to the extent they are legible or were confirmed by Detective Cryer.
Q.… You did, did stab him didn’t you, the guy at the hospital?
A.Must of. I told them to stay off the property. Had to look after the kids bro.
Q.Mm. I can understand that. Where’s the knife now Bernie?
A.Be beside the fire.
Q.Uh huh.
A. Was using it to cut the pork.
Q.What sort of knife is it mate?
A. Boning knife.
Q.Uh huh. So [unintelligible] …
A. All I wanted was them to stay away from my kids on my property.
Q.When you came out from inside did you go to the fire to get the knife first?
A.When I woke the kids up, yeah. I told the kids to get upstairs and spotted it, when I seen them start to come over. I thought fuck, they’re not getting me.
Q.How many people did you stab?
A.I must have done it all. I was only trying to keep them off the property.
Q.Yeah.
A.Just saw red.
Q.Yeah.
A.Just trying to stick them in the arse, get the fuck off. It’s like, ah, like I sobered up because it was like seen them all piling over.
Q.Do you know how many people you were fighting with?
A.They were just piling on mate, they were just piling on.
Q.Yeah.
A.Yeah. Like I said they’d done it to me before, you know yeah just easy kill, just pile on the bastard you know, get us all. Like last night, all I thought of was my kids, thought of all the kids that are there or this morning, or whatever it is. I just wanted them off the property.
Q.Uh huh. Where were you aiming Bernie?
A.Mm?
Q.Where were you aiming?
A.For their legs and their arse.
Q.Yeah.
A.Just you know, fucking get off. I didn’t want no-one to die. That’s why I was there … just wanting to protect, protect my kids, protect the kids that are there. But they just never leave me alone.
Q.Do you know how many you hit, how many you struck?
A.… Nah. Like I said I just …
Q.Who else from your place was involved in the fight Bernie?
A.Just me mate oh and my brother, but only fists.
Q.Yeah.
A.I think he did. I don’t, I was a bit busy trying to keep them off to be watching everybody else. All I saw was heaps and heaps …
Q.Yeah. Yeah but you were using the knife.
A.Just like I was sticking them in the arse and that, trying to stick them in the legs and, I was telling them to get off.
Q.Did you aim high?
A.Nah.
Q.No.
A.No, it was on the bottom, it was.
Q.You know the damage a knife can do?
A.Yeah, that’s why I was going for the arse and leg. I thought I was.
Mr Taylor’s principal defence at the trial was defence of himself and defence of another, namely his brother Charlie. The issue of provocation was evidently raised by the Judge, and Mr Leabourn closed on that defence, as well as defence of Mr Taylor’s dwelling house.
According to Ms Gray, it was said that Mr Taylor had seen Charlie being swarmed by a number of young men at the bottom of the property, and went to his rescue. As he was trying to reach Charlie, he himself had been attacked by the same group. Outnumbered and forced onto the defensive, he had tried to get the attackers off him. It was during this struggle that the four victims received their wounds.
Grounds of appeal
The principal ground of the appeal against conviction is trial counsel error. Ms Gray submitted that trial counsel made two fundamental errors which, individually and cumulatively, created a real risk that the outcome of the trial was affected. It is said first that Mr Taylor’s decision not to give evidence was not fully informed, as trial counsel failed to properly advise him on his election. The second complaint is that trial counsel failed to call Charlie Taylor, a material witness who would have been able to give evidence that supported Mr Taylor’s claim of self-defence.
As Elias CJ emphasised in R v Sungsuwan, trial counsel error is not itself a ground of appeal referred to in the statute.[12] Her observation was made with reference to s 385(1) of the Crimes Act, applicable in this case, but it is also true of s 232(2) of the Criminal Procedure Act 2011. The statutory language in both provisions refers to a “miscarriage of justice”. As the Supreme Court explained in Lundy v R, a miscarriage of justice for the purposes of s 385(1)(c) arises when there has been an irregularity in the trial that was “plainly capable” of affecting the result.[13] Where it is alleged that there has been trial counsel error the focus of the inquiry is not on the competence of counsel, but on the effect of any error on the outcome of the trial.
[12]R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [7].
[13]Lundy v R [2019] NZSC 152, [2020] 1 NZLR 1 at [24].
Another ground of appeal rests on statements made by the prosecutor in closing, with reference to Mr Taylor’s previous occupation as a meat boner in an attempt to further the Crown case on murderous intent. Ms Gray submits the reference to Mr Taylor’s occupation was irrelevant and highly prejudicial.
Counsel error — election not to give evidence
Ms Gray submitted that Mr Taylor’s election not to give evidence was not fully informed for three main reasons:
(a)Trial counsel erred in advising Mr Taylor not to give evidence based on his previous convictions. This advice was erroneous, as his convictions would not have been admissible.
(b)Mr Taylor was not given the opportunity to review his police interview or to have read to him the transcription of his interview prior to making the election not to give evidence. In the circumstances, he could not make a fully informed decision as to whether he should give evidence.
(c)No brief of evidence was prepared for him.
Advice not to give evidence
In his second affidavit, which explained why he thought that a miscarriage of justice had occurred, Mr Taylor said that he recalled being advised not to give evidence at the trial. He said counsel had told him that the police interview provided a good explanation of what occurred, and thus it was not necessary for him to give evidence. He could not remember being asked if he wanted to give evidence, but he could recall being told it was not a good idea, as the Crown might bring up his past convictions.
In his affidavit in response, Mr Chambers said that his usual practice would have been to assess the evidence before making a decision as to whether evidence should be called. He recalled that Mr Taylor’s video interview was a good one, and thought it gave a good explanation of what had occurred. He added that he and Mr Leabourn did not want to “damage the cause by running into the difficulty of previous convictions”.
Mr Chambers acknowledged that his recollection of the trial was “now hazy”. He also said that shortly after sentencing, he had received an authority from either Mr James Faleauto, or his brother, Mr Ted Faleauto, to hand over the file. He presumed that was because they wished to review the files for the purposes of a possible appeal. He heard nothing further over the following years until early 2021. He did recall however that the issue of calling defence witnesses was discussed with Mr Taylor, and he accepted the advice not to give evidence himself or call evidence from others.
Mr Leabourn, who was second counsel for Mr Taylor at the trial, also acknowledged that given the passage of time he did not have a strong memory of the facts or any memory of why some trial decisions were made in the way they were. He said:
It is my habit to keep detailed trial notes which I would have done however these have either been returned to Mr Chambers to be placed on the file or destroyed as part of my regular file destruction policy.
Mr Leabourn was unable to say why the decision was made not to call Mr Taylor at the trial. He added:
I note from the case on appeal that there was a lengthy police interview that was played to the jury. I can only speculate that the reason not to call the appellant was based around the fact that his defence was sufficiently set out in that interview and calling him would risk something new, or different, being added in evidence in chief, or in cross examination. This might then jeopardise his case.
Mr Leabourn said he could not recall whether Mr Taylor’s conviction history “formed any part of the decision-making process”.
Mr Chambers was cross-examined on Mr Taylor’s previous convictions and accepted that they had been influential in the decision not to call Mr Taylor to give evidence. Mr Chambers referred to the convictions “relating to violence and knives”. He accepted that the only basis upon which the previous convictions could have been referred to at the trial would have been if Mr Taylor had put his character in issue. But he referred to the risk that Mr Taylor might have said something which could have opened up that issue. He had considered that the risk was too great to incur it. But he also referred to what he described as the “other major risk” — that Mr Taylor might not have been a good witness and that he was unsure what Mr Taylor might have said in the witness box.
Mr Taylor’s criminal history dates back to 1996. It includes property-related offending, minor drug-related offending and wilful damage. It also includes unlawful possession of firearms, possessing a knife in a public place and carrying an offensive weapon. The historical offending is not significant compared to the charges Mr Taylor faced in this trial and it is difficult to see that it would have been influential in the decision to advise him not to give evidence, notwithstanding Mr Chambers’ concerns that the previous convictions would be referred to.
We think it more likely that the advice of trial counsel was based on the fact that the narrative in Mr Taylor’s video interview formed a sufficient basis for the defence of self-defence, which trial counsel had intended to run at the trial. As has been seen, it was sufficient also to ground a defence of provocation.
We are not persuaded that a decision to advise Mr Taylor not to give evidence on the basis that the account given in his video interview was sufficient, and there was a risk that he might unravel under cross-examination, can be criticised. Ms Gray submitted that the decision was wrong because it was based on the previous convictions. However, we are satisfied on the basis of the evidence that there were other reasons for the advice, and we consider they are likely to have been more influential.
Ms Gray relied on decisions of this Court that have emphasised that the election of whether to give evidence is a decision for the defendant, and that it must be made on an informed basis. In this context, it is for trial counsel to ensure that the defendant has the necessary information, and that this is conveyed in an appropriate and timely way.[14] Here, Mr Taylor accepted that he had been advised that it would not have been a good idea for him to give evidence and that he had agreed with the advice he had been given because counsel were the experts, and he trusted what they said. Although in the circumstances it is not possible for written instructions to be referred to, we consider on the balance of probabilities it is likely that experienced counsel such as Mr Chambers and Mr Leabourn would have procured written instructions that Mr Taylor was not to be called, in accordance with what both said was their normal practice.
[14]Tarring v R [2016] NZCA 452 at [26]. See also van der Krogt vR [2020] NZCA 512 at [20].
In all the circumstances we are not prepared to find trial counsel error on this ground.
No opportunity to review video statement
This allegation of trial counsel error rests on the claim that Mr Taylor did not have an opportunity to review his police interview prior to the trial. It is said this meant that he was unable to make a fully informed decision as to whether he wanted to give evidence. Part of the context for this submission is that, at the time, Mr Taylor was unable to read or write. He was not able to review his police interview by reading the transcript of it. His only recourse would have been to watch the interview, or have someone read the transcript to him. His evidence was that the only time he was able to watch the police interview was at the trial and prior to that neither Mr Chambers nor Mr Leabourn had played it or read the transcript to him.
Mr Chambers had a weak recollection that the typed transcript had been provided to Mr Taylor and read by him. Mr Leabourn confirmed that Mr Taylor would have had a copy of the transcript, but he recalled talking to Mr Taylor about the interview, because it would have been important to the decision of whether Mr Taylor should have been called to give evidence. Ms Gray pointed out that neither Mr Chambers nor Mr Leabourn had given evidence that the interview was played to Mr Taylor prior to the trial.
Ms Gray noted in this context that the Crown had closed to the jury on the basis that while there was no question that Charlie Taylor was being beaten, the facts did not show that Mr Taylor had joined the fight to defend his brother — rather, he had joined in because of his anger and frustration. Ms Gray said that had Mr Taylor given evidence he would have been able to explain that Charlie was the reason he had joined in the fight and he could then have explained how what had initially started out as defence of another had turned into defence of himself when he became the focus of a separate attack. These points had not been made clear in the video interview. She claimed that because Mr Taylor had not been given the opportunity to review the video, the jury had not been provided with an accurate account of self-defence.
Ms Gray made a further submission based on the fact that in the police interview Mr Taylor had repeatedly brought up an earlier attack on him, at Sunset Beach in Port Waikato, in which he had been seriously assaulted by members of the same group that was the subject of the violence on 3 January 2004. In the interview, he described those attacking him on the previous occasion as “more or less the same crowd”. Defence counsel had cross-examined witnesses at the trial about the Sunset Beach incident. Those included Mr Boisen, Mr Wayne Boisen and Mr Steven Lloyd. The jury would have been well aware of the Sunset Beach incident and would have taken it into account when considering whether Mr Taylor’s use of force on 3 January 2004 was reasonable in the circumstances.
Against that background, Ms Gray then noted that Mr Taylor had been involved in an even earlier incident, which he had not mentioned in the police interview. Mr Taylor mentioned that incident in a third affidavit that he filed for the purposes of the present appeal. His evidence about it was as follows:
11.However I didn’t tell the police officer about an earlier incident where the Black Power broke into my house, threatened me and put a gun in my mouth. They did it for revenge as I had beat up one of their guys for trying to come onto someone I knew. There were three of them, all in their 30’s. They came into my house and tied me up. One of them put a gun to the back of my head and said “this is for my cousin”. As I looked up, he put the barrel in my mouth. I was scared to death.
12.Back then I was living in Onewhero. I moved out of the area right after this incident.
13.I think this happened back in 1994 or 95. My son was just walking at the time. I remember the guys who did it were charged and pleaded guilty. There was some media on it.
14.I told my lawyers about it but I think they got it confused with the incident that I was charged with. They didn’t ask me to give evidence on it. I would have wanted to, as it explains why I feared for my life and Charlie’s on that night when I stabbed them. When they rushed onto the property I just had flashbacks to back when the three guys tied me up and put a gun to my head. The Black Powers were a very dangerous group.
15.I never told the police officer who was interviewing me about it as it never came up. I was just focused on the situation I was in. Also it was ages ago and had already been dealt with.
Ms Gray contended that this particularly violent event would have been highly relevant and provided further context as to why Mr Taylor considered it necessary to bring a knife into the fight when he saw his brother being attacked. It was vital that the jury had heard about it, because of its relevance to their assessment as to what he believed the circumstances to be at the time. As with the current charges, and the other instance referred to on Sunset Beach at Port Waikato, there was a common theme involving attacks by members of Black Power. Because there were no witnesses to this earlier incident, the only way it could have been brought up was if Mr Taylor had given evidence about it himself.
Further submissions made by Ms Gray concerned the fact that the knife was allegedly not Mr Taylor’s first choice of weapon. This was based on a statement in his second affidavit:
11.When the boys first arrived outside the property, I was standing on the balcony as I was just about to get ready for bed. I saw Charlie being swarmed by them by the bottom of the grass near the road, and that’s when I grabbed a knife from the kitchen upstairs and headed down towards Charlie. As I walked down, I saw a stick on the ground. I went to pick it up and as I bent down, I got jumped by 6 or 7 of the other group. I didn’t manage to get a hold of the stick so all I had on me was the knife I had grabbed from upstairs.
This information was not contained in the video interview. Ms Gray submitted that information would have been important for the defence because it showed that the knife was only used a means of last resort. She argued that, if the jury had been aware of this further information, they would have known that the only thing he had to defend himself with at the time was the knife. Because Mr Taylor was not called to give evidence about it he was left vulnerable to the Crown’s allegation that the knife was actually his first choice of weapon.
Ms Gray conceded that the police interview provided a good account of what had happened and that trial counsel were not wrong to rely on it as the basis of Mr Taylor’s defence. However, for all the reasons given above, Ms Gray submitted that the jury was not given an accurate or complete picture as to how the stabbings came about and, in particular, the central matter crucial for the appellant, the issue of self-defence. Had Mr Taylor been afforded the opportunity to watch the police interview prior to the trial, he would have been able to able to remind himself that the picture was incomplete. She referred to McNaughton v R in which this Court concluded, in the circumstances of that case, that there was no proper basis on which the jury could have determined what the situation was from the defendant’s point of view, an essential element of the defence of self-defence.[15]
[15]McNaughton v R [2011] NZCA 588 at [38].
We accept it would have been desirable for defence counsel to ensure that their defendant was reminded of the content of the video interview before the trial took place. However, he was able to view the interview at the trial and he would therefore have been in a position then to advise his counsel of significant matters omitted from it. The evidence he now gives, and the submissions of counsel based upon it, are said to follow from having had the opportunity to re-watch the interview. If these matters can be raised now, they could have been raised at the time, when his memory of what had occurred must have been better.
Similarly, we are not persuaded that the omission in the interview regarding the incident said to have occurred in 1994 or 1995 was of any significance. First, it related to events said to have occurred up to nine years earlier. Mr Taylor said that he told counsel about it but speculated that they had confused it with the events on 3 January 2004. That seems inherently unlikely, because of the detail in the earlier incident about Black Power members invading his house, tying him up, threatening him and putting a gun in his mouth. On the face of it the circumstances in the present case were very different, and it is most unlikely counsel would have been confused. Secondly, the idea that the earlier incident would have affected Mr Taylor’s response to events as they unfolded on 3 January 2004 seems unlikely. If it was influential, it is odd that Mr Taylor did not bring it up at the time of his interview. It is not plausible for him to assert now that this was a traumatic experience that had a significant effect on his conduct so many years later when he did not mention it at the time of his interview the morning after the event. The fact that he told the police about the Sunset Beach incident and not the 1994 incident suggests that the earlier event did not in fact influence his conduct on 3 January.
It is also difficult to reconcile an ongoing effect of something that happened in 1994 or 1995 with his claimed need to act in self-defence in the very different circumstances (a quickly unfolding fracas) with which he was confronted in January 2004. In fact, we think it could well have been counterproductive to rely on the historical incident: it would have risked playing into the Crown’s narrative that he was motivated more by anger than self-defence on the night.
Finally, we turn to the submission that the knife was in fact Mr Taylor’s weapon of last resort. The answer to that proposition, as Ms Hoskin pointed out, is that in his affidavit, Mr Taylor described setting off to help Charlie having “grabbed a knife from the kitchen upstairs”. So the knife was his first choice of weapon, procured before he had any thought of using a stick. We do not think an assertion to the contrary could have been at all significant in the trial or in respect of counsel’s advice as to whether or not Mr Taylor should give evidence.
Standing back, we are satisfied that overall the advice to Mr Taylor that he should not give evidence cannot be impugned. He had given a lengthy interview to the police which set out his account of what had happened on the same day that the events occurred. Although he initially denied having been involved in any fighting, he ultimately accepted that he was responsible for having stabbed the victims. The narrative he gave was sufficient to enable a self-defence argument to be run, including establishing the context of ongoing animosity towards him by associates of the Black Power gang. It included the Sunset Beach incident, which might have been relevant to the jury’s perception of the circumstances as he believed them to be. He had also explained in the interview how he tried to minimise the harm to his victims by aiming at their “legs and arse”, and trying to “keep” his strikes “low”. He had asserted that he “didn’t want no one to die” and had described events which had unfolded quickly. We agree with Ms Hoskin’s submission that the account he gave laid a foundation for claiming that he lacked murderous intent. In addition, he had described circumstances in which both he and his brother were being attacked and he was faced with an aggressive group of young men who had interrupted the party taking place, and he had described his motive as being one seeking to protect his family, children and property.
All of this gave an appropriate foundation on which to run a plausible argument of self-defence and provocation. Relevant parts of the interview were referred to by Mr Leabourn in closing, and in the summing-up the Judge reminded the jury that:
Mr Leabourn went through the video at length, directing your attention to a number of passages there in support of his submission that the defences were available.
None of the matters raised in support of this ground establish counsel error in respect of a failure to enable Mr Taylor to view the video prior to trial.
Failure to prepare a brief of evidence for Mr Taylor
This ground rests on a slender thread. In his second affidavit, Mr Taylor says “I don’t think I ever had a brief of evidence prepared. I don’t remember one at all.”
Mr Chambers did not deal directly with that issue in his affidavit, and we infer he was intending to cover it by his reference to an inability to comment with any assurance on the issues raised by Mr Taylor, due to the lapse of time. However, under cross‑examination by Ms Priest he would not accept counsel’s proposition that no brief was prepared and said it was his invariable practice to get written briefs.
In his affidavit, Mr Leabourn said:
24.Although I do not have an independent memory of preparing a brief of evidence, or assisting in the preparation of one, I can confirm it is my usual practice to do so, even in cases where it is not the intention to call the client.
25. Given that I was second counsel in the trial it may have been left to me to draft and complete the brief. Had that been the case it would have been done.
…
29. I have been second counsel many times in serious criminal trials, and I usually take it upon myself to at least draft the instructions in the form of a brief to relieve the workload of lead counsel.
…
31. Again I do not have an independent memory whether I did this in this trial, or if Mr Chambers did it himself, but I would be surprised if it did not happen as I know it is recommended best practice. …
Mr Leabourn also said that a written brief would be prepared even if a defendant was unable to read it, because of its value for the purposes of cross‑examination. In such a case the brief would be read over with the defendant and edited to reflect any alterations that were suggested. He added that having been practising as a criminal barrister since 1998 he did not think he had ever completed a trial, whether as lead or second counsel, in which there was not a written brief.
There is simply not enough evidence for us to decide with certainty whether or not a brief was prepared due to the passage of time. In the circumstances, we could not conclude that a brief was not prepared, and this ground cannot succeed for that reason. It is unnecessary to consider the issue further.
Counsel error — failure to call Charlie Taylor
A second error counsel are alleged to have made is the failure to call Charlie Taylor, who it is said was a material witness who would have been able to give evidence that supported Mr Taylor’s defence. In the amended grounds of appeal, reference was also made to a witness present on the night, Mr John Weke, but Ms Gray did not rely on his absence on the appeal and we do not therefore address his proposed evidence.
In respect of Charlie Taylor, Ms Gray sought to rely on an affidavit obtained for the purposes of the appeal.
In that affidavit, Charlie Taylor corroborated Mr Taylor’s account of the Sunset Beach incident, referring to it as having occurred “sometime early in 2003”. He also gave an account of who was present at Mr Taylor’s property on the evening of 3 January 2004, and he described a group of persons that he knew were associated with Black Power who arrived outside the property at about 2.00 or 3.00 am and commenced calling out insults and throwing rocks and bottles from the road. He walked towards them, telling them that there were children present, but shortly after that they had “swarmed” on him. He said:
21.They just swarmed on me then. I tried to hit the biggest buggar, he was the one with no shirt on and the Black power tattoo on his back, hoping they would then go away but I just got hammered. There was heaps of the them, they were coming from all sides. I had got knocked onto my back by the hedge and I was getting cracked by all sorts. I was getting hit from everywhere.
22.I don’t know what was happening with Bernie and John, I thought they were probably being attacked by them too.
23.I don’t know how long it went for but I was seeing stars by then and might have been knocked out a bit. There was lots of noise and carry on.
24.I don’t know what was happening to Bernie and John when I was getting attacked.
25.The next thing I remember was Bernie helping me out of the hedge. I said where are they and he said they’ve gone they are going home. I don’t remember where John Weke was.
26.When I stood up I saw a guy lying on the ground. I said who’s that, I thought it might have been John Weke. Bernie said [it’s] one of them. The guy was just lying there kicking a bit. I don’t know what had happened to him.
27.I think about then I realised he had been stabbed. I didn’t know anyone else had been. I don’t remember Bernie saying anything about what had happened.
28.I saw that the rest of the fella’s were out on the road. I yelled at them to come and get [their] mate. I think two of them came in and dragged him out onto the road.
Ms Gray submits that if trial counsel had spoken to Charlie Taylor and obtained a statement from him, this evidence would have been available at the trial. She conceded it was not fresh but claimed that it was credible and cogent. She referred to Charlie’s account as an accurate description of the speed and ferocity of the attack, showing how quickly the situation escalated. It would have assisted with painting a better picture of the true seriousness of the fight to the jury and would have put the cut Charlie sustained to his chin in a proper context, thereby rebutting the suggestion of the prosecutor in closing that the attack had not been intense. It would have also been made clear that Charlie had been knocked to the ground, a matter that was unclear from the evidence given at the trial. Ms Gray claimed that if Charlie had been called, it is possible the jury would have been satisfied that Mr Taylor had acted reasonably in the circumstances as he believed them to be.
When cross-examined, Mr Chambers was unable to recall what consideration, if any, had been given to the possibility of calling Charlie to give evidence at the trial. He also could not recall whether he ever asked Mr Taylor about calling Charlie. Similarly, Mr Leabourn could not recall why Charlie was not called.
Ms Hoskin opposed the Court reading Charlie Taylor’s affidavit on the basis that it was not fresh, or sufficiently credible and cogent, applying the approach of the Privy Council in Lundy v R.[16]
[16]Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [116]–[126].
In cases where it is alleged that relevant evidence was not called because of counsel error, the question of whether the evidence is fresh may not be determined on the usual basis of asking whether or not the evidence was known at the time of the trial and could with reasonable diligence have been called. As this Court observed in Loffley v R in such case the appellate Court will treat the evidence as fresh even if it was known to be available at the time of the trial, if persuaded that counsel error is the reason it was not called.[17]
[17]Loffley v R [2013] NZCA 579 at [58].
On that basis the real questions for present purposes relate to credibility and cogency. The difficulty that the appellant faces in this respect is that Charlie Taylor gave a statement to the police in which he described himself as having been “too drunk to fight”, and not knowing what happened. He said he was unable to give any detail, having got a “crack on the head” and not remembering any fight. Ms Hoskin also referred to his statements in which he asked what had happened, said he hoped and thought he “didn’t do it”, and stated “I truly don’t know what happened. You could tell me that I stabbed someone and I would go ‘yeah”’. When it was put to him that he might have been involved in the fight but be unable to recollect given how much he had had to drink, he replied “I honestly don’t know, how come I’m not black and blue then? I wouldn’t have a clue, I didn’t know there was a fight”. Charlie’s statements would have been available on disclosure. They stand in sharp contrast to the detail he now purports to give, many years after the event.
Ms Gray also complains that evidence about Charlie’s statements was given at the trial, in Charlie’s absence, by the officer in charge. She submitted this was inadmissible hearsay, and damaged the defence because of the absence of details about the attack. However, for present purposes the question is whether the fact counsel did not call Charlie to give evidence was an error that might have given rise to a miscarriage of justice. We are satisfied that cannot have been the case. The statements he made to the police at the time would have provided fertile ground for cross‑examination challenging his apparently recovered memory of what took place if he had given evidence along the lines of the affidavit now provided.
Even if the statements in his affidavit are taken at face value, it may be noted that Charlie did not see the stabbing occur. The jury already had a substantial amount of evidence, from numerous eyewitnesses about the nature and seriousness of the fight that broke out. We are not persuaded that not calling Charlie was an error, let alone one capable of affecting the outcome of the trial. Given our concerns as to the credibility and cogency of Charlie’s evidence, we decline to admit it as fresh evidence.[18]
Counsel error — summary
[18]Court of Appeal (Criminal) Rules 2001, r 12B.
In the result, we have not been persuaded that any of the issues raised by Ms Gray demonstrate there was a miscarriage of justice as a result of counsel error.
Prosecutor’s closing address
The final issue raised concerns the reference made by the prosecutor in closing to Mr Taylor’s previous occupation as a “boner”. The prosecutor told the jury that among the factors that they might take into account was what he described as the “weapon of choice”. He continued:
… a boning knife, which the accused is undoubtedly proficient in handling, given that he was a boner for a period of time. Clearly, such a weapon can be a lethal weapon if used in the manner that the accused chose to use it.
Ms Gray submitted the Crown should not have referred to Mr Taylor’s previous occupation as a boner, it was highly prejudicial to do so and had no relevance to the issue of murderous intent. She noted that it was not in dispute that Mr Taylor had used the knife to inflict wounds. However, his experience as a meat boner played no role in that. The wounds were not meticulously inflicted, and there was no medical evidence to suggest that any technical expertise had been deployed in delivering the wounds. Any person in the same situation would have been able to deliver the same lethal blows with the knife in question.
Ms Gray suggested the comment was highly prejudicial, because it conveyed to the jury that the knife wounds were intentionally inflicted in the way that the appellant must have known would have caused death. Such an assertion was not supported by the evidence.
In response, Ms Hoskin pointed out that Mr Taylor’s previous occupation as a mutton boner was before the jury, because it had been mentioned in the police interviews, when Mr Taylor acknowledged that the murder weapon was a mutton boning knife. The interviewer put it to him that he “must have known when [he] picked up the knife something like that would cause a lot of damage”. Asked whether it was sharp, he responded that it was a “[b]oning knife … I use it for meat”. Ms Hoskin maintained the comment was both accurate and appropriate. She disputed that it conveyed to the jury that Mr Taylor intentionally inflicted fatal wounds and submitted that the observation had simply recorded it a matter of fact, in unemotive and unexaggerated terms, that the appellant had a degree of familiarity with the weapon used. This was entirely legitimate.
The remark is taken from typed notes which counsel used for his closing address. There is no actual transcript of what he said to the jury. We deal with the issue on the basis that he did use these words, or something similar.
We consider it would have been better had the prosecutor not used the words in question. However, the jury was entitled to infer from Mr Taylor’s video interview that he would have been aware that the knife was sharp and capable of inflicting serious wounds. We have already noted that the fatal wounds were respectively 10 and 13 cm deep. In the case of one victim the stab wound pierced his heart; in the case of the other, it pierced his liver.
Obviously, those wounds would have been the result of the knife being deployed with considerable force. Mr Taylor’s interview was sufficient to establish that he must have known the knife was sharp. We consider those essential facts would have been what influenced the jury, rather than any extraneous reference by the prosecutor to Mr Taylor’s former occupation. It would have been better had the prosecutor not referred to that, but we are not persuaded that this was an irregularity that could have led to a miscarriage.
Result
The notice of abandonment of the appeal is set aside.
The application to adduce the evidence of Charlie Taylor in support of the appeal is declined.
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent