R v Taylor [2007] NZCA 258 (26 June 2007)

Last Updated: 16 February 2014

IN THE COURT OF APPEAL OF NEW ZEALAND

CA397/06 [2007] NZCA 258

THE QUEEN

v

ARTHUR WILLIAM TAYLOR

Hearing: 18 June 2007

Court: Hammond, Williams and Panckhurst JJ Counsel: C J Tennet for Appellant

C L Mander for Crown

Judgment: 26 June 2007 at 4 pm

_{JUDGMENT OF THE COURT}

A The appeal against conviction is dismissed.

_{B The appeal against the sentence of eight years is dismissed.}

REASONS OF THE COURT

_{(Given by Panckhurst J)}

R V TAYLOR CA CA397/06 26 June 2007

The search of a storage unit at Paraparaumu

[1] On 16 December 2004 the police searched a storage unit at Paraparaumu. In October of that year the unit had been let to the appellant. The search revealed cannabis oil, cannabis plant, morphine sulphate tablets, precursor substances (hydrochloric acid, pseudoephedrine, acetone and iodine rock), a .22 calibre pen gun, a Browning .270 Winchester calibre rifle, a Benelli semi-automatic shotgun, a pistol (being a cut-down semi-automatic Ruger .22 rifle), assorted ammunition, home- made pipe bombs, a stolen Hewlett Packard laptop computer and stolen Samsung and Nokia cellphones.

[2] Subsequently, the appellant was charged with possession of the various controlled drugs and precursor substances, possession of the various firearms and ammunition contrary to the Arms Act 1983 and receiving the computer and the cellphones. In total, the indictment contained 15 counts.

[3] Following a trial before Miller J and a jury in July 2006, Mr Taylor was convicted on all counts. Mr Taylor defended himself. He appeals against both conviction, and the resulting sentence of eight years imprisonment imposed in September 2006.

[4] The grounds of the conviction appeal can be grouped under three headings. These are a challenge to the admissibility of the evidence of the search, two complaints arising in relation to the conduct of the trial and four suggested misdirections contained in the Judge’s summing-up to the jury.

[5] The sentence appeal is likewise based on a number of grounds; that starting- points were adopted which were too high, that the imposition of cumulative sentences was inappropriate and that the totality principle was not given adequate recognition. In the result, it is said, the effective sentence arrived at was clearly excessive.

[6] The appellant married his partner on 11 December 2004. Three days later Mrs Taylor made a complaint to the police in relation to alleged domestic violence she had suffered at the hands of the appellant. She also mentioned that her husband had a storage unit, which may be of interest to the police because it contained drugs and guns.

[7] On 16 December Mrs Taylor guided a police officer to the storage unit. Forced entry was gained in purported reliance on the powers to conduct a warrantless search under the Misuse of Drugs Act 1975 and the Arms Act 1983. In addition the detective involved in the search had Mrs Taylor sign a written form of consent authorising entry into the storage unit.

[8] Upon initial entry into the unit the police became concerned whether it was booby trapped. The bomb disposal team was called. Application was also made for a search warrant. Eventually a full search was conducted pursuant to a Summary Proceedings Act 1957 warrant which had been obtained. In addition to the items (see para [1]) which became the subject of specific charges in the indictment, the police also located and seized cash totalling $66,020, a set of digital scales and a burglary kit (balaclava, tape and plastic adjustable handcuffs).

[9] The admissibility of the search evidence was the subject-matter of a pre-trial ruling given by Gendall J under s 344A of the Crimes Act 1961 (R v Taylor HC WN CRI-2004-091-4321 6 September 2005). That ruling was challenged on appeal to this Court (R v Taylor CA384/05 3 May 2006). In the result, leave to appeal was granted but the appeal itself was dismissed. Although Gendall J had held that the search was both lawful and reasonable, this Court found it was unlawful and unreasonable, but nonetheless concluded on the basis of a Shaheed analysis (R v Shaheed [2002] 2 NZLR 377 (CA)), that evidence of the search was admissible.

[10] In his written submissions Mr Tennet argued that, given the restatement of the balancing exercise contained in the recent decision of this Court in R v Williams CA372/05-382/05 7 March 2007, it was appropriate to review the previous 2006

admissibility ruling. Counsel properly acknowledged that this ground of appeal gave rise to a preliminary question, namely whether it was appropriate to revisit the 2006 decision. Unless there has been a change in the law, the prior decision could not be revisited in a general appeal context: R v Su’a and Mankelow CA442-3/06 19 April

2007.

[11] Mr Mander submitted that there was nothing in the analysis of this Court in its May 2006 decision, which was inconsistent with the approach to the balancing test contained in Williams. Hence, even on the merits, counsel contended there was no basis to suppose that re-evaluation of the circumstances of this case, in light of Williams, might produce a different outcome.

[12] We are unpersuaded both that this is a situation where it would be appropriate to revisit the earlier decision of this Court, or that there is anything to indicate a re- evaluation in terms of Williams would produce a different result. The balancing exercise undertaken by the Court in its May 2006 decision included a detailed analysis of all the relevant circumstances ([37]-[42]), and a fully reasoned conclusion that, on balance, the evidence ought to be admitted, notwithstanding the unlawful and unreasonable search ([43]). Even in light of Mr Tennet’s submissions, we find no basis to revisit the earlier ruling.

Two trial factors

A requirement for notes from Mrs Taylor to pass through the hands of security staff

[13] These aspects can be dealt with quite shortly. In Ruling No. 1 delivered on

21 July 2006 (three days before the trial began) Miller J held that the appellant should not have leave for his wife to act as his McKenzie Friend. The ruling indicated, however, that Mr Taylor may avail himself of the assistance of an amicus, who was identified in the ruling and available to undertake that role. In the alternative the Judge ruled that Mrs Taylor may attend the trial and communicate with her husband in writing, provided any notes passed through the hands of the security staff who would be sitting with Mr Taylor at the accused’s bench.

[15] However, the appellant did apparently receive notes from his wife during the course of the trial. The ground of appeal (framed by the appellant himself) was to the effect that this process was inimical to a fair trial. We have fully considered Mr Tennet’s written submissions in support of this proposition, but can find nothing to suggest that any prejudice was occasioned on account of the Judge’s ruling.

Curtailment of cross-examination

[16] Mr Taylor cross-examined a number of the Crown witnesses at some length. We note that in his sentencing remarks Miller J referred to the appellant as having “represented [himself] skilfully at the trial”. This ground of appeal was that the appellant was inappropriately prevented from cross-examining police officers to full effect. We have no affidavit evidence from the appellant concerning this aspect. Accordingly, it is unclear which of the witnesses Mr Taylor wished to cross-examine further, and to what intended effect.

[17] Mr Tennet referred particularly to the cross-examination of Sergeant G J Barnett. On four occasions questioning was stopped (p 60 of the notes) by the trial Judge. Otherwise, the notes did not evidence instances where cross- examination by the appellant was curtailed to any significant extent.

[18] The relevant cross-examination of Sergeant Barnett occurred in the course of a voir dire. The matter under inquiry was whether a certificate from an ESR scientist was admissible and, in particular, whether there was sufficient evidence to establish that it was not “reasonably practicable” for the Crown to call the witness in person. This aspect resulted in Ruling No. 5 dated 26 July 2006. There is no appeal against the ruling.

[19] It is apparent from the terms of the ruling that the certificate was admitted on a very limited basis, in that another scientist was to be called but with reference to the scene examination of the storage unit and to express conclusions with reference to the precursor substances. The certificate was admitted to confirm the receipt of

various items by the ESR and their subsequent analysis as controlled drugs or precursor substances.

[20] It does not appear that either of these propositions was capable of serious dispute.

[21] For these reasons there is nothing to indicate that curtailment of the cross- examination of Sergeant Barnett caused any prejudice, let alone occasioned a miscarriage of justice.

Misdirections in the summing-up

[22] It is argued that in four respects the summing-up of the trial Judge contained material misdirections. We shall deal with them in turn.

Failure to direct concerning an aspect of the appellant’s evidence

[23] In addition to the evidence of the search of the storage unit, the Crown case included fingerprint evidence which linked the appellant to some of the items found there. Clearly, then, an explanation was required in answer to the prosecution case.

[24] Mr Taylor gave one. At trial, he gave evidence concerning the various items located in the storage unit. With reference to the controlled drugs and the precursor substances he said that in September 2004 he had uplifted a cardboard box containing these items from his “nephew called Christopher”. Mr Taylor indicated he was concerned that Christopher was mixing with the “wrong crowd” and was at risk of involvement with controlled drugs. On account of his concern, he took the items off Christopher and, while he “worked out what to do with them”, placed them in the storage unit. Instead of “getting rid of the items”, he became distracted and they remained in the unit at the date of the search, 16 December 2004.

[25] With reference to the firearms and ammunition Mr Taylor told the jury that he was an acquaintance of one Shane Dalley, to whom he provided a key to the storage unit. A quantity of firearms had been stolen in the Wellington area and Mr Dalley was in a position to locate them, so that they might be surrendered to the

police for financial reward. Mr Taylor became an intermediary in this process. The key was supplied to Mr Dalley so that further firearms could be left in the unit, which was safer than having Mr Dalley deliver them to the appellant’s home. The search occurred at a time when firearms and ammunition had been delivered to the storage unit, but not as yet surrendered to the police.

[26] In cross-examination Mr Taylor confirmed that Mr Dalley had been a sentenced prisoner, but that he died in Rimutuka Prison in early 2006. He was asked whether his nephew, Christopher, was to be called as a defence witness, to which Mr Taylor said that Christopher was an inmate of Paparua Prison. A further question referred to the order to produce process being available to secure an inmate as a witness.

[27] Arising out of these lines of cross-examination Mr Tennet submitted that it was incumbent upon the trial Judge to direct the jury not to speculate as to what Mr Dalley or Christopher would have said, had it been possible to call the former, and had the latter been called, respectively. In addition, counsel argued, a direction was required designed to emphasise that there was no onus upon the defence to call anyone as a witness, and in particular Christopher.

[28] At an early point in the summing-up the Judge gave conventional directions concerning the onus of proof being on the Crown and as to the fact that there is no onus on an accused person to prove his innocence. At para [8] the Judge added:

He [the accused] does not need to give evidence himself or call other people as witnesses.

[29] Mr Mander (who was also counsel for the Crown at trial) advised us that in closing he did not make reference to Christopher not being called as a defence witness. The effect of counsel’s further argument was that the conventional directions concerning speculation and the onus of proof were sufficient, in all the circumstances of this case. In particular, given the limited questions asked in cross- examination and the approach taken by the Crown in closing, there was no need for an additional tailored direction concerning this aspect.

[30] We agree. We have closely considered the terms and extent of the relevant cross-examination. It was moderate. It was appropriate that explanations advanced for the first time at trial should be probed and that the circumstance of Mr Dalley’s death should be brought to the attention of the jury. Otherwise, the veracity of Mr Taylor’s evidence would have remain untested. And, in light of the moderate emphasis which was given to this aspect by Crown counsel, we are satisfied that the trial Judge was correct in adopting the method he employed in summing-up.

[31] To have included tailored directions of the kind now contended for, could well have served to highlight the obvious convenience of the appellant attributing blame for the storage of the incriminating items to a deceased man and a nephew identified only as Christopher.

Inadequate direction on the standard of proof

[32] Miller J directed the jury in these terms:

[11] Reasonable doubt does not mean some vague or fanciful doubt. To be satisfied beyond reasonable doubt means that you must be sure that the accused is guilty of the charge. If you are sure of guilt then it is your duty to find the accused guilty. But if you are left with a reasonable doubt, one which leaves you feeling unsure, then equally it is your duty to acquit.

[33] Mr Tennet submitted that this direction failed to meet the standard described in R v Wanhalla [2006] NZCA 229; (2006) 22 CRNZ 843 (CA). Counsel suggested that a direction in Wanhalla terms was “mandatory”, should be given “in that depth and in those terms”, and that, generally, a “far more solemn and full explanation” than that given by the trial Judge was required.

[34] We note that the decision in Wanhalla was delivered about a month after the summing-up in the present case. Moreover, as William Young P said in Wanhalla at [52]:

... we are not to be taken as asserting that the formula just stated is mandatory. It is not. Further, we wish to discourage too close a focus on the precise nuances of judicial directions. It is sufficient to make it clear that the concept involves a high standard of proof which is discharged only if the jury is sure or feels sure of guilt.

[35] We are satisfied that the trial Judge’s direction was entirely adequate. This was a case where the Crown evidence was effectively overwhelming, unless the explanation advanced by the appellant was accepted by the jury as truthful or as sufficient to engender a reasonable doubt. It follows that a direction concerning the effect of an accused giving evidence provided an important counterpoint to the direction concerning the standard of proof. The Judge identified the second possibility arising from an accused’s giving evidence, as follows:

[95] Second, you may think that although his evidence is not entirely convincing, it leaves you unsure of just what the real position is. In those circumstances the evidence raises a reasonable doubt, and if that is so, then it follows from what I have said that your verdict will also be not guilty.

In light of the directions which we have quoted we are satisfied that the jury must have appreciated that the criminal standard of proof is a high one and, equally, that an accused’s explanation need only raise a reasonable doubt.

[36] The verdicts of guilty in relation to all 15 counts demonstrate that the jury emphatically rejected the accused’s account. We see no basis for concern as to the adequacy of the direction as to the standard of proof.

Inadequate direction on receiving

[37] Mr Tennet submitted that the trial Judge’s directions concerning receiving were not sufficiently emphatic with regard to the requirement that the accused must have guilty knowledge at the point the subject property is received into his possession. Counsel accepted that a correct statement of the law was given, but the complaint was that it lacked impact and could have been lost in the context of “lengthy directions”.

[38] Twice in the course of his directions to the jury the Judge referred to the need for guilty knowledge at the time of receipt. At [60] of the summing-up the Judge described three elements of the charge of receiving, the first being that the accused received the relevant property. He continued:

A receiving is complete as soon as the accused has obtained possession of the item from someone else.

[39] After reference to the need for proof that the item was stolen or obtained by any other crime, the Judge referred to the third element, being:

that at the time he received the property, he knew that it had been stolen or obtained by any other crime or was reckless as to whether or not it had been stolen.

The same point was made again at [92] of the summing-up.

[40] If this was not enough the Judge also provided to the jury what he termed “decision trees”, being diagrammatic questionnaires based on the elements of the various offences. The third question in relation to counts 14 and 15 (the receiving charges) was:

Has the Crown proved beyond reasonable doubt that at the time he received it the accused either knew that the laptop [or cellphone(s)] had been stolen or was reckless as to whether it had been stolen?

[41] In our view it is idle to suggest that the directions on this aspect were inadequate. The point was explained, emphasised and then included in the hand-outs which the jury took with them into the jury room. Accordingly we reject this ground of appeal.

Conflation of the tripartite and the lies directions

[42] Miller J directed the jury with reference to the third possibility arising from an accused’s election to give evidence in these terms:

[96] Third, you may think that the accused lied in his evidence and in his statement to police. In this case, the Crown says he lied about essentially everything, including Dalley and his nephew and their roles. The lie essentially relates to Dalley and his role and the question of whether he had use of the lockup. The Crown says his lies are evidence of guilt.

[97] I need to say two things about lies. The first thing is that giving a false explanation for his conduct is relevant to the accused’s credibility, so you can take it into account in assessing guilt, but it is not enough in itself to find him guilty. Put another way, if you think he lied about Dalley, you should not simply assume he must have had possession of the precursor substances, drugs, and weapons. What you have to do in that case is to ask yourselves whether the evidence as a whole, including his evidence, satisfies you that he had possession of these things.

[98] The second point I want to make is this. It is important that you guard against any tendency to think that, if he told a lie, he must be guilty of the offence for that reason alone. Before you can decide that a lie affects the credibility of his defence, you must ask yourselves whether it was a deliberate lie. If it was, you must ask what prompted him to lie. A person may lie for many reasons, in a foolish attempt to bolster a true defence, to protect someone else, to conceal his disgraceful conduct short of the commission of the offence, or out of panic or confusion.

[99] Provided you approach the matter in that way, you may take into account a deliberate lie when deciding whether the Crown has proved guilt. It is for you to assess whether he lied deliberately, and if so, what weight you will give to the lie.

[43] Mr Tennet argued that the direction was in error in three respects. There was a failure to direct the jury that rejection of an accused’s evidence may simply warrant placing that evidence to one side, and a focus upon the balance of the evidence to decide whether the case was proved to the required standard. Second, counsel submitted that to conflate the tripartite directions and the lies direction was “wrong in itself”. The third point was that it was inappropriate to give an elaborate or full lies direction in the circumstances of this case.

[44] Although expressed by counsel as three points, we think there are two parts to the argument, being whether the third aspect of the tripartite direction was deficient and whether an elaborate lies direction was appropriate in this case.

[45] Mr Mander argued that there was no need for the Judge to give the standard third aspect of the tripartite direction, because if the jury were to reject Mr Taylor’s evidence, it must follow that such evidence would be regarded by them as deliberate lies. Hence, counsel said, it was not inappropriate to conflate the two directions, nor was the trial Judge wrong in giving the more elaborate lies direction. Mr Mander also submitted that had the Judge told the jury that rejection of the accused’s evidence did not of itself prove guilt, but rather required that such evidence be set aside in favour of an evaluation of the balance of the evidence, such explanation would have been apt to confuse matters, at least in the context of this case.

[46] We think it best to consider the second question first. Was it appropriate to give the elaborate form of lies direction in this case? That is, were the lies of a kind which naturally indicated guilt rather than innocence, or put another way lies

explicable only because the accused could not give an innocent explanation: R v Toia

[1982] 1 NZLR 555 (CA) at 559 and R v Loumoli [1995] 2 NZLR 656 (CA) at 671-

2.

[47] If lies are in the rare category where they inevitably indicate guilt rather than innocence, (a hard test to satisfy), then the more elaborate direction sometimes referred to as a Dehar direction (R v Dehar [1969] NZLR 763 (CA)) is appropriate. If not, a short form lies direction should be given, by which the jury is told that the lies do not add a dimension to the Crown case, but are relevant to the assessment of the accused’s general credibility.

[48] We consider that this was one of those uncommon cases where a Dehar direction was appropriate. On the basis of the Crown case there was no escape from the conclusion that the appellant was in possession of a raft of incriminating items. Unless he could explain away his possession of those items, the die was effectively cast. The accused advanced an explanation designed to show that, despite the property being within a storage unit which was under his direct control, two other men had a closer association with the items of property and he was in effect an innocent custodian. If that explanation was rejected out of hand, categorised as a deliberate lie, the Crown case was inevitably strengthened. Lies, we accept, were explicable only on the basis of an attempt to evade responsibility which was otherwise obvious.

[49] No challenge is raised to the content of the lies direction. But, it remains to consider the further point, whether the Judge was required to direct the jury in terms of the third aspect of the conventional tripartite direction. We consider that he was. The lies direction in both its short, and elaborate, forms places responsibility to determine whether the accused’s evidence includes a deliberate lie on the jury. If so satisfied, the jury may bring the lie to account with reference to credibility, or, occasionally, as strengthening the Crown case. These aspects were covered in the direction which was given.

[50] However, the Judge did not in referring to the third aspect of the tripartite direction explain that rejection of an accused’s evidence may simply require that the

evidence be put to one side in favour of an examination of the balance of the evidence. Hence, at least at a theoretical level, there was a deficiency in that, if the jury found the appellant’s evidence was not credible, but were not satisfied that the account represented a deliberate lie, there was no direction to cover that situation.

[51] But in the circumstances of this case we see this possibility as more theoretical, than real. While, for completeness, it would have been preferable for the Judge to have given a complete and conventional tripartite direction, and follow it with a lies direction (rather than conflate the two); no prejudice can have resulted from the approach adopted. In short, this was a situation where rejection of the accused’s evidence must inevitably have led to the view it constituted a deliberate lie. Either such evidence was the truth, or it was an involved concoction designed to meet a damning Crown case. There was no realistic scope to say the evidence was not credible, but not deliberately so. For these reasons, although the tripartite direction was incomplete, we are satisfied that a miscarriage of justice did not result.

The sentence appeal

[52] In his sentencing remarks Miller J detailed the individual firearms and ammunition, described the robbery kit (comprising balaclava, tape and handcuffs), recorded that the cannabis weighed 276 grams, the cannabis oil 78.9 grams and noted that the precursor substances included pseudoephedrine, acetone, hydrochloric acid, iodine rock and a number of morphine sulphate tablets, although there was no operational clandestine laboratory. After reference to the $60,000 in cash and the electronic scales, the Judge described “the whole operation as highly organised, and the offending [as] clearly premeditated”.

[53] The incriminating items impressed the Judge as comprising the appellant’s “stock in trade”. He continued that Mr Taylor had made a career of crime, was a hardened recidivist, unmotivated to address issues which led to his offending and that, therefore, there was little prospect of rehabilitation.

[54] The Judge’s approach was to treat the Arms Act charges as a group, which warranted a starting-point of four years imprisonment; and the drugs charges as a

further group, warranting a starting-point of five years imprisonment. He considered that such terms must be imposed on a cumulative basis, although the receiving charges could be dealt with concurrently.

[55] But, a total starting-point of nine years was seen as excessive on a totality basis and was reduced back to seven years. Then, an uplift of one year was added on account of the appellant’s previous history and the circumstance that he was on parole at the time of the subject offending. Absent any mitigating factors the Judge imposed an effective eight year sentence, but without a minimum term of imprisonment.

[56] Mr Tennet argued that the sentencing approach was misplaced, and that the better course would have been to impose a lead sentence (of no more than five and a half to six years), accompanied by concurrent sentences. Counsel criticised the imposition of significant cumulative terms with reference to the two groups of charges. He also contended that the Judge applied the totality principle too soon in reducing the nine year starting-point back to seven years, before regard was had to personal aggravating features, which sustained a 12 months uplift to produce the end sentence of eight years imprisonment. In the result it was suggested the various failings resulted in a sentence which was clearly excessive.

[57] We are not persuaded that the sentence imposed was beyond the available range for this raft of offences. We accept, and adopt, the trial Judge’s assessment of the appellant as to his recidivism and absence of motivation to change. Mr Taylor is

50 years of age. His criminal record spans a period of over 30 years. It includes multiple convictions for aggravated robbery, firearms offences, burglary and receiving. Condign sentences were indicated.

[58] We regard the case as unusual for the fact that there was no obvious offence which would logically attract a lead sentence. The Arms Act charges were serious. Possession of an arsenal of firearms, and ammunition, in association with a robbery kit, speaks for itself. The end sentence of four years imprisonment for these offences cannot be assailed, as previous decisions of this Court concerning possession of

firearms demonstrate: R v McDonald CA108/00 10 July 2000, R v Richardson

CA450/02 25 March 2003 and R v Taylor CA176/03 24 October 2003.

[59] The drugs charges were equally serious. It is the combination of the possession of significant quantities of cannabis plant, cannabis oil, and precursor substances for the manufacture of methamphetamine, together with the possession of scales and $66,020 in cash, which underscore the criminality of this dimension of the case. Again, we are unpersuaded that a sentence of four years imprisonment was excessive in relation to these drug offences.

[60] In many instances it is necessary to treat the possession of a firearm (or firearms), as an aggravating feature of drug offending. But here on account of the scale of the offending we consider the Judge had no choice but to view them as a stand alone group of offences. A cumulative approach was necessary because the various offences were “different in kind”, although connected: s 84(1) of the Sentencing Act 2002.

[61] It would have been more orthodox had the Judge applied the totality principle after he had considered the personal aggravating features. But in the end it is the effective sentence, as opposed to the methodology, which is most important. Eight years imprisonment was fully justified, and the appellant may have been fortunate to not also receive a minimum term of imprisonment.

Conclusion

[62] The appeals against both conviction and sentence are dismissed.

Solicitors:

Crown Law Office, Wellington