Taylor v The the King - [2022] NZCA 626

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA55/2005
[2022] NZCA 626

BETWEEN	BERNARD TAYLOR Appellant
AND	THE KING Respondent

Hearing:	23 February 2022
Court:	Cooper, Katz and Palmer JJ
Counsel:	S J Gray and E P Priest for Appellant E J Hoskin for Respondent
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
The notice of abandonment
Circumstances of the abandonment
The alleged offending
Mr Taylor’s interview
Grounds of appeal

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]
[5]
[8]
[20]
[24]
[29]
[32]
[33]
[45]
[61]
[66]
[76]
[77]
[84]

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…

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 the King

Details

AGLC: Taylor v The the King [2022] NZCA 626
Case: [2022] NZCA 626
Decision Date: 14 December 2022 at 11.00 am

CaseChat Overview and Summary

Bernard Taylor sought leave to appeal against his convictions for murder and causing grievous bodily harm with intent. The appeal was initially abandoned, but Mr Taylor now sought leave to proceed with it. The Court of Appeal found that the circumstances in which the appeal was abandoned were exceptional, and the interests of justice favoured setting aside the notice of abandonment. The Court found that the appeal could proceed and considered whether there had been a miscarriage of justice. The Court found that the alleged trial counsel errors, including the failure to call Charlie Taylor, did not give rise to a miscarriage of justice. The Court also found that the prosecutor's reference to Mr Taylor's previous occupation as a boner was not an irregularity that could have led to a miscarriage. The appeal was dismissed.

Orders