Taylor v Witness C - [2017] NZHC 2146

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-004-7370 [2017] NZHC 2146

BETWEEN
ARTHUR WILLIAM TAYLOR

Prosecutor

AND

WITNESS C Defendant

Hearing: 28 - 31 August 2017

Counsel:

M Gibson and P K Noorland for Prosecutor
A Simperingham and H Vaughn for Defendant

Judgment:

22 September 2017

JUDGMENT OF WHATA J

This judgment was delivered by me on 22 September 2017 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitor/Counsel: M Gibson, Auckland
Woodward-Chrisp, Gisborne

ARTHUR WILLIAM TAYLOR v WITNESS C [2017] NZHC 2146 [22 September 2017]

[1] Shortly before trial the prosecution made an application to produce a DVD recording of an interview allegedly with Witness C on the Holmes television show. In a subsequent Minute, I signalled to the prosecution that leave pursuant to the hearsay provisions in the Evidence Act 2006 in respect of a statement purportedly made by a defendant was not required.1 I noted, however, that Mr Simperingham disputed the identity of the person in the recording. I indicated that in order to be admissible, I needed to be satisfied there was a proper evidential basis for the allegation that it is Witness C in the recording. I invited the parties to focus their
efforts on that aspect for the purposes of the application.

[2] The application was heard immediately after the jury was sworn in. I resolved to allow the application but on the basis that only the transcript of the DVD was to be produced to the jury. I disallowed purported identification evidence by Mr John Tamihere. Mr Gibson then indicated to me that a written ruling was not then required as there was a possibility Witness C would evidence, in which case he could be cross-examined on the DVD statements. Mr Simperingham agreed.

[3] It transpired that Witness C gave evidence and admitted he was interviewed by Mr Holmes, but claimed he was giving the interview under threat. Mr Gibson then sought to play the DVD to the jury because it would better assist them in determining whether the interview was given under threat. Mr Simperingham objected, noting the sensational nature of the DVD was prejudicial. He accepted however that the DVD interview was the best evidence of what in fact Witness C said, rather than the transcript.

[4] I amended my ruling and allowed the DVD to be played to the jury. My reasons for the initial ruling together with the final ruling follow.

Background

[5] Immediately before trial the Court of Appeal confirmed the suppression of Witness C’s identity.2 The background is helpfully outlined in that judgment which I largely adopt.

[6] Mr Taylor is prosecuting the defendant, Witness C, in a private prosecution. The charges relate to evidence Witness C gave in the trial of David Tamihere for the murder of Heidi Paakkonen and Sven Hoglin. The prosecution alleges this…

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.

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Details

Case: [2017] NZHC 2146
Decision Date: 22 September 2017

CaseChat Overview and Summary

In the case of Arthur William Taylor v Witness C, the court was required to decide whether a DVD recording of an interview with Witness C on the Holmes television show was admissible as evidence in the trial. The central issue revolved around the probative value of the DVD interview and whether it could be admitted despite potential unfair prejudice. The court had to balance the need for the prosecution to present compelling evidence against the risk of prejudice to the defendant, particularly given the sensational nature of the interview. The prosecution argued that the DVD provided critical corroboration of Witness C's affidavit, which recanted his trial evidence. They contended that the circumstances surrounding the interview, including the timing and context, strongly suggested that Witness C was indeed the interviewee. The defence, on the other hand, objected to the admission of the DVD on the grounds that it was identification evidence and that there was insufficient proof to confirm Witness C's identity.

After careful consideration, the court initially allowed only the transcript of the DVD to be produced to the jury, to mitigate any unfair prejudice that might arise from the sensational nature of the recording. However, when Witness C elected to give evidence and admitted to being the interviewee, the court reconsidered its ruling. The court concluded that the DVD's probative value in corroborating the affidavit and challenging Witness C's claim that he was under threat during the interview outweighed the risk of unfair prejudice. The DVD was thus admitted subject to a direction to the jury that no significance should be placed on the notoriety of the context of the interview.

Ultimately, the court's decision was based on the importance of the DVD interview in corroborating the affidavit and supporting the prosecution's case. The court accepted that the DVD provided a more accurate and detailed account of the interview, allowing the jury to assess the context and credibility of Witness C's statements. The court's ruling ensured that the prosecution could effectively challenge Witness C's version of events while mitigating potential prejudice by directing the jury on the appropriate weight to give to the interview's notoriety.

Orders