Taylor v The the King

Case [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

  1. 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].

  2. 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. 

  3. 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. 

  4. 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

  1. Prior to considering whether there has been a miscarriage of justice, we must first address the question of whether the notice…

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AGLC
Taylor v The the King [2022] NZCA 626
Case
[2022] NZCA 626
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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