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Taylor v R [2010] NZCA 69 (16 March 2010)

Last Updated: 4 April 2010


NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY SECTION 139 CRIMINAL JUSTICE

ACT 1985.


IN THE COURT OF APPEAL OF NEW ZEALAND


CA147/2009
[2010] NZCA 69


BETWEEN BRETT STEPHEN TAYLOR

Appellant


AND THE QUEEN Respondent


Hearing: 24 November 2009

Court: Arnold, Potter and Heath JJ Counsel: D L Stevens QC for Appellant

G H Allan for Respondent


Judgment: 16 March 2010 at 11.30 am


JUDGMENT OF THE COURT


A Leave to adduce new evidence is declined.


B The appeal against conviction is dismissed.


REASONS OF THE COURT


(Given by Heath J)


TAYLOR V R CA147/2009 16 March 2010

Table of Contents


Para No.

Introduction [1] The Crown case at trial [4] The defence case at trial [29] Jury directions

(a)
Introductory comments
[39]
(b)
Reliability direction
(i)
The purpose of a reliability direction
[44]
(ii)
Submissions
[55]
(iii)
Analysis
[59]

(c) “Prejudice and sympathy” direction [74] Additional medical evidence [86] Was there a miscarriage of justice? [89] Result [97]


Introduction


[1] In December 2008, Mr Taylor was tried in the District Court at Palmerston North, before Judge Garland and a jury, on three counts: one of stupefaction and two of unlawful sexual connection with a male complainant. The jury returned a not guilty verdict on the stupefaction charge but found Mr Taylor guilty on the two sexual violation charges. On 24 February 2009, he was sentenced to a term of imprisonment of four years.[1]


[2] Mr Taylor appeals against conviction. On his behalf, Mr Stevens QC


advanced five grounds of appeal. They reduce to three broad headings:


(a) Ought the trial Judge to have given reliability directions about the way in which the jury should evaluate the complainant’s evidence?


(b) Did the Judge err in failing to give an adequate warning to the jury not to act on prejudice, based on the allegation that Mr Taylor had engaged in homosexual conduct?


(c) If further medical evidence before us had been adduced at trial, could that evidence have made a material difference to the jury’s deliberations?

Mr Taylor also seeks leave to adduce the “new” medical evidence. That application


is opposed by the Crown.


[3] Mr Allan, for the Crown, submits that none of the appeal points have any merit and, even if one or more did, no miscarriage of justice has resulted.


The Crown case at trial


[4] On 18 July 2006, Mr Taylor (who identifies as heterosexual) invited the male complainant (whom he had known for a period) to visit his home for dinner and drinks. Mr Taylor’s female partner was away in Auckland, working. His son, aged 9 years, was at home.


[5] When the complainant arrived, at between 5.30pm and 6.00pm, Mr Taylor was in the kitchen, cooking. He was wearing only boxer shorts. The complainant suggested, in his evidence, that he was offended by Mr Taylor’s state of undress.


[6] Mr Taylor, his son and the complainant ate dinner together. Both Mr Taylor and the complainant drank wine. It is unclear how much wine was consumed during this period, though it seems that the complainant (rightly or wrongly) later regarded himself as sufficiently sober to drive to Levin, to purchase more wine.


[7] The complainant left to buy more wine at about 8.30pm, returning at or soon after 9.00pm. In evidence in chief, he said, when driving, he felt “okay, a little bit hyped up” but he “just carried on”. While in a supermarket to buy the wine, the complainant says that he felt as if he “was under the effect of something”. He described that he had stumbled and stuttered, which he thought was “strange”. He added that he wanted to drive back to Mr Taylor’s house as quickly as possible because he “could feel the effect and ... didn’t want to be driving”.


[8] By the time he returned to Mr Taylor’s home, the complainant said he was feeling “okay” again; “maybe hyped up, somewhat hyped up would be the best


description”. When asked what he meant by the term “hyped up”, the complainant answered “feeling wired, clowning round, feeling like I was intoxicated”.


[9] When the complainant returned, Mr Taylor’s son was in bed. The complainant and Mr Taylor continued to drink wine in the kitchen area. Mr Taylor,

on the complainant’s evidence, also smoked cannabis. The two men then went upstairs, to a studio.


[10] Both men had an interest in music and sound recording. The studio area contained a variety of musical and recording equipment. When describing how he felt (in terms of what he had drunk), at the time he and Mr Taylor went to the studio, the complainant said


“happily drunk. Possibly obnoxiously drunk, I don’t know but talking utter rubbish and keen to have a mess around with the audio equipment”.


He added that he still felt “hyped up”, in the studio.


[11] Consumption of wine continued in the studio. While the complainant suggested that only a few additional glasses were consumed, that does not seem consistent with the totality of the evidence, in particular a contemporaneous audio recording, made in the studio area. Both Mr Taylor and the complainant were aware that the equipment was being used, so no nefarious purpose was involved in the recording.


[12] We have listened to the audio tape, as did the jury. Most of the time, the complainant is talking. He sounds very intoxicated. His description of “talking utter rubbish” is accurate: see, for example, extracts from the transcript set out at [13] and [14] below. Mr Taylor spoke little during the time the voices were recorded. It is difficult to tell just how intoxicated he was.


[13] The audio recording gives the impression that, most of the time, the complainant was talking in a rambling and drunken manner. We set out some extensive extracts from the transcript in order to provide a flavour, not only of a state of intoxication, but also the way in which sexual innuendo was introduced into the “conversation”:

[Complainant] America I’m one of those people though there is this remarkably blonde bimbo on TV it looks as though she’s about to be taken advantage of by some American high five motherfucker that should really have his head cut off and possibly his fingers and his hands too. Yeah we’re not too sure what happens to these guys, but um, yes well ah, yeah, it seems to work.


[Complainant] We live in the world of digital conversation. I keep whacking my keyboard against the screen, and I’m more worried about my keyboard and the ah keyboard than I am against the fucking, the the the screen itself cos it seems like it’s waving around a little bit.


[Complainant] Right right you, you, yeah yeah can you can you, hello, hello? Jolly good show what old chap, don’t worry don’t trust those Puerto Ricans they’re dodgy. Yeah, dodgy, I tell you. I know, I know everything, yeah.


[Complainant] The Puerto Ricans are dodgy. There’s fucking something with your stand here my brother (laughing in background).


(Conversation going on in background)


This stand I can tell you, this stand keeps telling me you’re dodgy but, every time I move away it moves over, no don’t you look at me, no, no you’re fucking dodgy, you’re a doggy dodgy piece of fucking white trash man.


Hoi, you yeah yeah you, dodgy motherfucker, yeah, yeah fuck you nah come back here dodgy motherfucker.


Come here, I’ll nail you, yeah podgy hey yeah dodgy guy yeah stand up yeah yeah come round over here and we’ll beat you like a man that feels like a man to be dodgy.


Oh, the bass guitar, drops. The bass guitar’s back up again and you’re in trouble my brother.


[Complainant] Dodgy Guy. Unknown male: Shut up .......

[Complainant] Dodgy ah, dodgy motherfucker. Yeah. I’d be worried if I was you too my motherfucker, ooh.


Trodger, trudging the Bond girl, yeah don’t worry who he is yo. Beep beep beep.

Dodgy motherfucker (laughs) come back, don’t something we will curl toes you dodgy, he looks like

a turkey (pervert?). Yeah, walk away, he’s a fucking dodgy motherfucker. Nice breasts yeah.


Although the term “unknown male” is used in the transcript, it is common ground that only the two men were present in the studio when the recording was made.


[14] Towards the end of the recording there is a discussion about wine that had been spilt:


[Mr Taylor] You fuckwit man. You talk the most shit that I’ve heard in fucking ages. Oh god.


......... your naked arse ........


[Complainant] Where’s the [Mr Taylor’s partner]?


Rex [Mr Taylor]. Your wine’s spilt.


[Mr Taylor] You fucking spilt it.


[Complainant] No I did not.


[Mr Taylor] Its your wine you spilt.


[Complainant] It’s your wine.


[Mr Taylor] Where is it?


[Complainant] Over there.


[Mr Taylor] You fucking bullshit. My wine is not on the floor.


[Complainant] Your wine is over there man on the floor. Look its spilt.


[Mr Taylor] You fucking spilled it. God you’re a loose man. (Laughs)

[Complainant] Spooter man.


[Mr Taylor] Maybe beat me up and make me naked and that’s it.


[Complainant] But you’re already naked. Look man you might enjoy it.


[Mr Taylor] I would


[Complainant] Ah Rex

[Mr Taylor] Shut this recording session down.


[15] The complainant, while talking into a microphone, had a memory of “a hand and something coming under my nose and saying ‘smell this’ or ‘sniff this’”. He said that he sniffed the contents of a bottle. He described the smell as “something chemical”. When asked how he felt on smelling the bottle, the complainant responded “I don’t know what happened at that point”.


[16] The complainant was asked what happened after he had sniffed the bottle.


He said “I think I may have gone mad, berserk or something. I remember a sucking sensation in my sinuses so I may have been sniffing more of it and I don’t remember much more other than that except for flashes of memories”.


[17] The Crown alleged that Mr Taylor had produced a bottle of amyl nitrite in order to stupefy the complainant. Count 1 of the indictment alleged that Mr Taylor stupefied the complainant with intent to facilitate the commission of the offence of sexual violation.


[18] The complainant said that he recovered consciousness at one point. He remembered lying on his back, diagonally across the bed in the studio. He had a memory of Mr Taylor removing his trousers. His next memory was of Mr Taylor performing oral sex on him.


[19] Having (apparently) reverted temporarily to a state of unconsciousness, the complainant’s next recollection was a feeling of something being forced down his throat. Finally, the complainant recalled a sensation of something being pushed into his anus and feeling uncomfortable.


[20] The complainant was asked about his memory of Mr Taylor performing oral sex on him. When asked “did you want him to do that”, the complainant responded:


... I would never want a male to do that to me because I’m a straight male and I’ve never had any sexual contact with a male before. I’m not bi or gay. That has never come into question.

[21] The complainant woke up the following morning. He was in bed, in the studio. Except for a brown shirt that he had been wearing the night before, he was naked. The complainant found his jeans, boxer shorts and shoes on the floor in the bedroom. He had a headache and felt that his head was spinning. The complainant felt discomfort around the areas of his penis and anus. He discovered a bottle of KY lubricating gel on the bed, which he had no recollection of seeing the night before.


[22] After he had given evidence of finding the KY lubricating gel bottle, the complainant was asked whether he remembered the oral sex and something being pushed into his anus, at that time. He answered that he was “recovering different memories during the time that [he] was waking up and more memories came to [him] as time went on”. Asked for clarification, the complainant added that the memories came to him “the following few hours, different memories came back”.


[23] In the days following these events, the complainant sought medical advice and made a complaint to police. Also, a series of text messages were exchanged between the two men. On 19 July 2006, at 2.01pm, the complainant sent a message to Mr Taylor in these terms:


You Fucked up! How much of that Shit does it take to knock one out. And dont for one minute think this is going away. Cant Fucken believe it. You

of all [people]!


to which Mr Taylor responded a few minutes later:


Yep I did fuck up. Can we talk tonight I’m really fucked in the head about

it. Please lets sort it out.


[24] Shortly after he sent that text message, Mr Taylor sent another, reading:


Come on [complainant] talk man. This was not a one way street. U were on fire last night and things ended up strange today lets work it out I’m feeling very confused [too].


[25] There followed further exchanges in which Mr Taylor was seeking to meet with the complainant to discuss how they could “move on” from what had happened. They subsequently met and, at the police officer’s request, the complainant was “wired” to enable their conversation to be recorded for evidential purposes. That was done covertly.

[26] Based on the complainant’s evidence, the Crown made two specific allegations of sexual violation. Count 2 of the indictment alleged unlawful sexual connection between Mr Taylor’s mouth and the complainant’s penis. Count 3 alleged unlawful sexual connection, effected through the introduction into the complainant’s anus of either a body part or an unknown object held or manipulated by Mr Taylor.


[27] On scientific analysis, the complainant’s shirt (collar, cuff and shoulder) contained semen stains, identified as having come from Mr Taylor. Mr Taylor told the Police that, while something had happened, he could not remember the details. He acknowledged kissing the complainant but denied the alleged offences.


[28] Summing up to the jury, Judge Garland summarised the Crown case in the following terms:


(a) Mr Taylor was in total control of the situation and that his claim, in a statement, of not remembering events was “quite unreal and untrue”.


(b) The complainant was in no condition to consent and did not give genuine consent to sexual activity. In the circumstances, Mr Taylor could not have believed on reasonable grounds that the complainant did consent to sexual activity.


(c) The audio recording ought to be regarded as the complainant “attempting to put together lyrics for a stupid drunken song”, rather than sexual or provocative remarks directed at Mr Taylor. Any sexual comments made by the complainant appeared to arise from the “blonde bimbo” or the “bond girl” on a television which he appeared to have been viewing.


(d) Mr Taylor initiated conversations of a sexual nature. Once Mr Taylor began to make comments with sexual innuendo, he applied amyl nitrite to the complainant to ensure he was unable to refuse consent.

The defence case at trial


[29] Mr Taylor did not give evidence, though two witnesses were called on his behalf. Both gave evidence to authenticate the audio recording made in the studio. The Crown did not challenge any of that evidence. Otherwise, the defence case was based on cross-examination of the complainant, text messages exchanged between Mr Taylor and the complainant after the events in issue, and out of court statements made by Mr Taylor, both to the complainant and a police officer.


[30] The jury had the benefit of two accounts given by Mr Taylor prior to trial. The first arose out of the (covertly) recorded meeting between Mr Taylor and the complainant at a café in Levin on 30 October 2006. The second was an oral statement made by Mr Taylor to Detective Constable Demechy on 12 April 2007. The constable referred to and read notes made contemporaneously, on an “I said, he said” basis.


[31] During the course of the discussion at the café, save in one material respect, Mr Taylor responded to the complainant’s questions by indicating that it was the complainant who had initiated any contact of a sexual nature, at one stage saying it was “so out of character” for the complainant “to drive into town to buy a second haul of alcohol”. Mr Taylor denied having planned the events that occurred that night. While he acknowledged something had occurred, he too had a hazy memory of events.


[32] The one exception relates to the amyl nitrite. Mr Taylor, apart from acknowledging what it was, was guarded in responses to questions about why it had

a severe effect on the complainant. When the complainant suggested that his head


“went completely fried” after sniffing the amyl nitrite, Mr Taylor responded:


But you were quite happy to sit in my bedroom once before and sniff cocaine (indecipherable) and I’d have to put things on a scale, that would be a one [adding that cocaine would be ten].


[33] The essence of Mr Taylor’s position was that something had happened between the two men which had not been intended and which both regretted. The thrust of his comments was to the effect that the complainant was in denial and was

not prepared to acknowledge that consensual homosexual activity occurred while each was under the influence of intoxicating substances.


[34] In his statement to the police officer, Mr Taylor took a similar line. However, he suggested that the complainant was the “predator” who initiated sexual contact. At one stage, Mr Taylor said: “I was the one lying on the bed and he came and lay next to me and kissed me”.


[35] In contrast to his conversation with the complainant at the café, Mr Taylor denied ever having had amyl nitrite at his home. He also denied having seen or removed KY lubricant from the studio in the morning.


[36] Trial counsel for the accused cross-examined the complainant about talking


in a sexual way to Mr Taylor. While acknowledging that he sounded “obnoxiously drunk” on the sound recording, the complainant did not accept the proposition that what had happened was a drunken but consensual episode of sexual activity in which neither man, if sober, would have participated.


[37] The following exchange occurred at the conclusion of cross-examination:


I put it to you you were up for anything in short....I don’t think I was up for anything at all.


You’re not the first person to drink too much and have a sexual experience that you wouldn’t otherwise have had though, you know that don’t you....I’m aware of that yes, however this was a result of the amyl nitrite and this is not something that I regret having done because I don’t consider myself to have done anything.


You don’t think you can admit doing it because you think it would make you some sort of definition of a gay person would that be right....No


You don’t see yourself that way at all do you....I am not a gay person, I have never had a gay experience.


Instead of seeing it - .....I have never consented to any connection between myself and another male.


Instead of seeing it as just a mistake that happened....It was not a mistake. This has happened and I have not consented to it. As you can hear I am clearly intoxicated.

[38] In summing up to the jury, Judge Garland explained fully the defence theory


of the case. Introducing his remarks on that topic, the trial Judge outlined it as follows:


Mr Crowley for the defence, similarly started with the defence theory. He said, what the defence says happened, was you had two men who got together. They were friends. They got drunk and they were affected by other drugs. You know the accused smoked cannabis. Both of them went too far, further than either of them would have done had they been sober. What happened here was a mistake. Mr Crowley said people often make mistakes when they are drunk. He agreed that this one was unusual because it involved a mistake between two men and hence the reality was that afterwards the complainant could not handle it because he was naturally

concerned about the possible suggestions that he was gay. The defence says,

“Yes this shouldn’t have happened, but it did, because of the alcohol and the drugs which both men had consumed. But in the end, it was just a mistake”.


Jury directions


(a) Introductory comments


[39] We deal together with the grounds of appeal based on alleged inadequate directions to the jury, on the topics of the reliability of the complainant’s evidence and “prejudice and sympathy”.


[40] Both the Crown and the defence put their cases firmly on the basis of the complainant’s evidence. The Crown case was that the complainant was a truthful and reliable witness on whom the jury could rely to find all three charges proved beyond reasonable doubt. Mr Taylor’s position was that the complainant was motivated to lie about, or at least to reconstruct, what occurred. The evidence set out above[2] provided a foundation for the latter submission.


[41] Once the jury found Mr Taylor not guilty of stupefaction, the complainant’s evidence that he would not have engaged in consensual sexual activity with Mr Taylor assumed greater prominence. In order to reach a verdict acquitting Mr Taylor on the stupefaction charge, the jury must have regarded the complainant’s

evidence as insufficiently reliable to prove that offence beyond reasonable doubt.


[42] The evidence of the complainant’s state from the time he travelled to Levin to buy more wine is indicative of someone whose memory of events is questionable. We have already referred in detail to that evidence.[3] In those circumstances, it was essential (in order to provide a balanced summing up), for the Judge to bring home to the jury the importance of not jumping to a conclusion that non-consensual sexual activity occurred because the complainant had asserted that he would not have engaged consensually in activity of that type. The risk the Judge had to minimise was the possibility of the jury coming to the view that non-consensual homosexual activity occurred because no heterosexual person in the complainant’s shoes would have engaged in consensual activity of that type.


[43] Two distinct aspects of the summing up assume relevance in the context of the need for the Judge to bring home to the jury the importance of not jumping to a conclusion that non-consensual sexual activity occurred. The first relates to directions about the reliability of the complainant as a witness. The second involves the “prejudice and sympathy” direction customarily given by Judges to ensure that a jury does not reach a conclusion adverse to an accused based on factors unconnected with a dispassionate evaluation of the evidence. We deal with each issue in turn.


(b) Reliability direction


(i) The purpose of a reliability direction


[44] Before the Evidence Act 2006 (the Act) came into force, common law and statute had developed a piecemeal approach to the judicial directions required if potentially unreliable evidence was given before a jury. An example of a statutory rule was s 12C of the Evidence Act 1908. That required a Judge to direct a jury “on the need for special caution” in considering evidence given by a witness with some purpose of his or her own to serve. This was often referred to as an “accomplice warning”. A non-statutory example is one in which the reliability of a witness’ oral

testimony might be affected through mental illness: for example, see R v Harawira.[4]


[45] The Act was developed out of a reference by the Minister of Justice to the


Law Commission in August 1989. The Commission’s mandate was to make the law


of evidence as “clear, simple and accessible as is practicable, and to facilitate the fair, just and speedy judicial resolution of disputes”.[5] During the course of that review, which culminated in the Commission’s reports (the Evidence Reports),[6] the Commission considered existing law on the use of judicial warnings as a means of assisting juries to reach reliable conclusions on evidence given at trial.


[46] The Commission’s research revealed a number of important psychological studies into aspects of memory. For example, in an Appendix to its discussion paper, The Evidence of Children and Other Vulnerable Witnesses,[7] the Commission published a review of studies relating to the reliability of children’s testimony. In a separate paper, published in conjunction with the Evidence Reports, further psychological research was published on topics such as memory theory, eye witness

identification, children’s memories and “recovered” memories: see Evidence: Total


Recall? Reliability of Witness Testimony (Total Recall?).[8] Based on that research,


the Commission recommended changes to the existing law in order to clarify and codify the topic, so that the law could be more receptive to advances in scientific research.


[47] In the Evidence Reports, the Commission recommended a statutory framework dealing explicitly with questions of corroboration, judicial warnings and judicial directions. The cornerstone of the proposed structure was an overarching general provision, under which a trial Judge could exercise a discretion when determining whether any form of warning should be given relating to evidence the Judge considered potentially unreliable. A number of specific provisions were recommended to deal separately with particular types of evidence considered to warrant special attention.


[48] The Act adopted that general structure. Section 122 is the manifestation of the general principle. It provides:


122 Judicial directions about evidence which may be unreliable


(1) If, in a criminal proceeding tried with a jury, the Judge is of the opinion that any evidence given in that proceeding that is admissible may nevertheless be unreliable, the Judge may warn the jury of the need for caution in deciding—


(a) whether to accept the evidence:


(b) the weight to be given to the evidence.


(2) In a criminal proceeding tried with a jury the Judge must consider whether to give a warning under subsection (1) whenever the following evidence is given:


(a) hearsay evidence:


(b) evidence of a statement by the defendant, if that evidence is the only evidence implicating the defendant:


(c) evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant:


(d) evidence of a statement by the defendant to another person made while both the defendant and the other person were detained in prison, a police station, or another place of detention:


(e) evidence about the conduct of the defendant if that conduct is alleged to have occurred more than 10 years previously.


(3) In a criminal proceeding tried with a jury, a party may request the Judge

to give a warning under subsection (1) but the Judge need not comply with that request—


(a) if the Judge is of the opinion that to do so might unnecessarily emphasise evidence; or


(b) if the Judge is of the opinion that there is any other good reason not to comply with the request.


(4) It is not necessary for a Judge to use a particular form of words in giving the warning.


(5) If there is no jury, the Judge must bear in mind the need for caution before convicting a defendant in reliance on evidence of a kind that may be unreliable.


(6) This section does not affect any other power of the Judge to warn or inform the jury.

[49] Section 122(1) is premised on the proposition that evidence can be both admissible and unreliable. The Judge’s obligation, in respect of admissible evidence,

is to consider warning the jury of the need for caution in deciding whether to accept the evidence and the weight to be given to it. The Judge must form the opinion that the evidence “may ... be unreliable”, before determining (as a matter of discretion) whether to warn the jury.


[50] Section 122 is surrounded by other provisions dealing with topics singled out


for special attention. Specific provision is made for any corroboration warning that might be required (s 121), directions about the way in which evidence may be offered (s 123), judicial warnings about lies (s 124), judicial directions about children’s evidence (s 125) and judicial warnings about visual and voice identification (s 126). In addition, a specific direction may be given if a complainant, in a sexual case, delays or fails to complain in respect of the offence charged (s 127).


[51] The way in which trial Judges have instructed juries to approach the evaluation of particular types of evidence has changed markedly over the last 20 or

30 years. This has primarily occurred as a result of scientific research establishing that the practice of giving such warnings had been based on a false premise. We provide two examples of such changes.


[52] First, until the passage of s 23AB of the Evidence Act 1908,[9] trial Judges were required to tell a jury that they ought not to convict on the uncorroborated evidence of a complainant in a rape trial: compare R v Moana[10] with R v Daniels.[11] Now, s 121(2) of the Act makes it clear that it is not necessary, even in a case in which a Judge may think evidence might be unreliable, for the Judge to warn the jury that it is “dangerous” to act on uncorroborated evidence (or to give a warning to the same or similar effect) or to give a direction relating to the absence of corroboration.


[53] Second, in R v Accused (CA 298/88), this Court, notwithstanding the guidance in respect of adult complainants contained in s 23AB of the Evidence Act 1908, held


.

that it remained prudent for a Judge to warn a jury of the dangers of relying on the uncorroborated evidence of children.[12] Section 125 of the Act now not only forbids

a Judge from giving such a warning to the jury if he or she would not have given a similar direction in the case of an adult complainant, but also prevents a Judge from instructing a jury that there is a need to scrutinise the evidence of children with “special care” or to suggest that children generally have tendencies to invent or distort, unless there is expert evidence to that effect.


[54] Those examples demonstrate why a trial Judge should place emphasis on the words of the Act in deciding whether to give a warning, while continuing to use the earlier authorities as a guide. In Stewart (Peter) v R,[13] in the context of s 122, this Court referred to Total Recall? Having set out relevant extracts, the Court observed that it was implicit in the s 122 authority that the Judge assess, for himself or herself, whether a warning is required and, if so, of what intensity.[14]


(ii) Submissions


[55] Mr Stevens criticised the absence of any request from trial counsel to the Judge under s 122(3) for a warning to be given under s 122(1). He submitted that the absence of a request meant that the Judge failed to turn his mind to the type of warning that Mr Stevens submits ought to have been given. Mr Stevens also submitted, irrespective of a request, that the Judge ought to have warned the jury of the need for caution in acting on the complainant’s evidence: s 122(1).


[56] Mr Stevens submitted that, in the circumstances of this case, s 122(2)(c) had particular resonance. He contended that the Judge was required to have regard to the possibility that the complainant had a motive to give false evidence that was prejudicial to the accused and, in doing so, ought to have concluded there was a need to warn the jury to be cautious in deciding whether to accept the evidence or what weight to give to it.


[57] Mr Stevens submitted that “motive to give false evidence” to which


s 122(2)(c) refers, covers more than the possibility that the false evidence had been given deliberately. He submitted that a warning would also be required in a case in which there was something that could have moved the witness to give evidence that happened to be false, including a genuine reconstruction of events. In particular, Mr Stevens drew attention to the possibility that the complainant had a motive to give false evidence so that he would not be generally perceived as someone who was prepared to engage in consensual homosexual activity.


[58] Mr Allan submitted that no warning was required in relation to the complainant’s evidence. He submitted that the case did not turn “upon the reliability

of the complainant’s recall, but upon whether he was simply lying”. He submitted that no warning was required in relation to the complainant’s alleged motive to lie. Mr Allan further submitted that no motive had been established and the ultimate issue was whether the jury believed the complainant in the evidence he gave.


(iii) Analysis


[59] Section 122[15] contains a number of discrete steps. Under s 122(3), counsel


for the Crown or an accused may request a Judge to give a reliability warning under


s 122(1). If such a request were made, the Judge’s obligation is to consider it and to form an opinion on whether or not to accede to it. A Judge need not comply with a request if of opinion that to do so might unnecessarily emphasise evidence or there is other good reason not to comply: s 122(3)(a) and (b).


[60] The failure of counsel to request a warning is unlikely to provide any ground


for appeal. The Judge has a personal obligation to consider and determine whether


to give a reliability warning, whether or not the circumstances fit any of the categories set out in s 122(2). Any appeal will usually be directed to the Judge’s decision, whether (preferably) contained in a brief reasoned ruling or ascertained by

inference from the lack of any comment on particular evidence in the summing up.


.

[61] Section 122(1) creates the threshold. The Judge must decide whether, in his


or her opinion, any admissible evidence given in the proceeding may, nevertheless,


be unreliable. If the Judge were to answer that question in the affirmative, he or she has a discretion to warn the jury of the need for caution in deciding whether to accept the evidence or the weight to be given to it. If evidence falls within one of the five categories set out in s 122(2), there is a positive obligation on a Judge to consider whether to give a warning. If s 122(2) is not engaged, the Judge may give a warning

on other evidence, if he or she thinks it appropriate to do so: s 122(1). If the Judge decides to give a warning, there is no particular form of words that he or she must use: s 122(5).


[62] An illustration of the type of warning required in respect of an issue arising under s 122(2) can be found, in relation to hearsay evidence, in R v Baker.[16] Giving

the judgment of the Court, Cooke P said that if hearsay evidence were admitted:[17]


... the Judge may and where the facts so require should advise the jury to consider carefully both whether they are satisfied that the witness can be relied on as accurately reporting the statement and whether the maker of the statement may have exaggerated or spoken loosely or in some cases even lied. The fact that they have not had the advantage of seeing that person in the witness box and that he or she has not been tested on oath and in cross- examination can likewise be underlined by the Judge as far as necessary.


[63] It follows that the Judge’s task is to isolate potentially unreliable evidence and to direct the jury expressly on it, if the Judge considers it was possible that the jury might give it too much weight without a direction. Such a direction would need

to be accompanied by a short explanation of why the evidence might be considered unreliable. While the form (or intensity) of the warning will be a matter of discretion

for the Judge, who will have the best appreciation of relevant trial dynamics, it remains part of the appellate function to consider whether a warning ought, in any particular circumstances, to have been given.


[64] Most Judges will tread cautiously in determining whether to give a reliability warning. A specific warning about the reliability of particular evidence has the

potential to influence the jury’s deliberations, one way or the other. The Court must


always bear in mind that the constitutional function of determining guilt rests with the jury, whose collective task it is to evaluate all relevant evidence. If a warning was given, it should be expressed as neutrally as circumstances permit.


[65] Harawira is a useful reminder of first principles relevant to reliability warnings. In considering the circumstances in which such a warning might be required, Richardson J, delivering the judgment of the Court, said:[18]


... In the end the fundamental question must be whether the summing up met the justice of the particular case. Difficulties will tend to arise where the potential unreliability of the witness is not obvious for the jury to see. It must also be recognised, however, that Judges are not necessarily gifted with special insight into mental illnesses and human behaviour not shared by jurors. Clearly where a warning is proper it need not be conveyed in the language of "danger", "warning" and "caution". What is essential in such a case is to bring home to the jury the need for care in relying on that evidence.


(Emphasis added)


[66] Mr Stevens concentrated on s 122(2)(c) as the basis for a reliability warning. That subsection deals with a witness who may have a motive to give false evidence prejudicial to a defendant. In our view, that subsection is intended to refer to a witness with a motive to lie. In ordinary parlance, the phrase “motive to give false evidence” is inapt to describe a person who gives false (in the sense of incorrect or inaccurate) evidence through a genuine (but mistaken) reconstruction of events. The phrase is more apt to apply to someone who has a motive to give deliberately false evidence, so as to prejudice the accused at his or her own expense.


[67] That interpretation accords with the Law Commission’s approach. The Commission, using identical words in s 108(2)(c) of its draft Evidence Code, made it clear that the provision was designed to re-enact the substance of s 12C of the Evidence Act 1908, which dealt with warnings required when evidence was given by an accomplice.[19]


[68] In deciding whether to give a warning, the Judge should (ordinarily) take account of the various bases on which the jury might determine the charges. In this


case, to discharge the judicial function, it was necessary for the trial Judge to direct


on all matters, whether of fact or law, which, on the evidence, were reasonably open


to the jury to consider in reaching their verdicts: see R v Tavete.[20] Despite the ways


in which counsel put their cases in closing, it was foreseeable that the jury might not accept the whole of the Crown theory of the case and, for example, reject the notion that Mr Taylor stupefied the complainant.


[69] As it happened, the jury found Mr Taylor not guilty on the stupefaction charge. Having reached that conclusion, there was a need for the jury to take particular care in assessing the complainant’s reliability, on the sexual violation charges, having regard to his own evidence that he “would never want a male to do that to [him] because [he was] a straight male and [he had] never had any sexual contact with a male before”.[21] In those circumstances, was a reliability warning required?


[70] In R v K (an accused),[22] the appellant challenged a decision of a District Court Judge not to give an accomplice warning to the jury. The Court of Appeal upheld the trial Judge’s decision, saying:[23]


Certainly, though, the stepson's admitted hostility to his stepfather made it necessary as a matter of common sense to approach his evidence with caution. The Judge did not specifically say that to the jury, although he did mention the possibility that the stepson and the complainant had got together on the disputed detail of how many beds there were in the Whangarei hotel room. But a vigorous attack on the young man's credibility was a feature of the defence case at the trial. His conduct and motives were extensively explored in cross-examination and defence evidence. Nor can there be the slightest doubt that they would have been impugned as effectively as possible by counsel for the defence in his final speech to the jury. Appellate Courts have refrained from laying down hard-and-fast rules prescribing what a trial Judge must say where witnesses other than accomplices called for the Crown may obviously have purposes of their own to serve. In this country we have taken that approach in, for instance, R v Hartley[24] and R v O'Connor.[25] For the English practice, see R v Beck.[26] Every case must be looked at in the light of its own facts. In this case we do not think that it would have helped the jury materially if the Judge had said more than he did.


Considering the summing up as a whole and the course of the trial and the discrimination shown by the jury in requesting certain passages of the girl's evidence to be read to them and in their verdicts, we are satisfied that they must have been well aware of the need for caution in accepting the stepson

as credible. The attack on the summing up must therefore fail, in whatever way it may be expressed.


[71] A similar issue arose in R v Vo.[27] In that case, trial counsel representing three accused had contended that witnesses called by the Crown, from among a group involved in the fraças that led to the victim’s death, were associates of the deceased who had conspired to conceal and later dispose of a samurai sword that the deceased had carried, and to mislead the police and the Court as to the events surrounding the killing. No specific accomplice warning was given, but the trial Judge did say:


The three accused drove off. The deceased was taken to Middlemore Hospital where he died shortly after midnight and someone, you may think, from the Avenue road group or sympathetic to them, removed the deceased’s sword from the scene and disposed of it without telling the police and nothing too important turns on that except that in a very background way it might indicate a sort of alignment of sympathies with the Avenue Road group and the deceased.


[72] The Court of Appeal considered that direction was appropriate, citing R v K (an accused) and R v Chignell.[28] Gault J, for the Court, said:[29]


[Section 12C of the Evidence Act 1908] directs the Judge to consider whether a caution would be appropriate, so that even though it may appear to him or her that particular witnesses may have some purpose of their own to serve, the discretion remains not to give any special instruction. This calls for a common sense assessment in the circumstances surrounding the evidence of each particular witness. Plainly the evidence of accomplices giving evidence under immunity or of co-accused is more likely to require care than that of witnesses who are merely complainants or are associated with complainants and who might have reason for hostility towards the accused.


...


Even if it were accepted that there was material before the Judge indicating that some of the Crown witnesses might have had reason to give false evidence, having been party to the removal of a weapon which might have given support to claims that the accused were defending themselves, and having resolved to revenge the killing of their friend, it would not automatically follow that an instruction on the need for special care should have been given nor that any miscarriage of justice flowed from the fact that


.

it was not given. By the time of the trial there was no dispute that the deceased had arrived at the scene carrying the sword.


[73] Mr Taylor’s trial was short. The complainant’s credibility and reliability was


a central issue. From the cross-examination of the complainant and from counsel’s addresses, the jury was well aware that the complainant’s credibility and reliability were critical to each of the charges and were challenged. In the way the Judge summed up to the jury, any motive to give false evidence was adequately explained and would, in any event, have been readily apparent to the jury. In those circumstances, we conclude that it was unnecessary for a specific reliability warning to have been given.


(c) “Prejudice and sympathy” direction


[74] Mr Stevens submitted that the Judge ought to have tailored a “prejudice and sympathy” direction to emphasise that jurors ought not to allow any abhorrence or distaste they might have of homosexual conduct generally to influence their decision.

In essence, this is a submission that the Judge ought to have given a direction in words that made it clear to the jury that they were sitting as Judges of fact in a court of law, not a court of morals. On the other hand, Mr Allan submitted that the standard direction on prejudice and sympathy given by the Judge was ample in the circumstances of the case.


[75] Judge Garland’s direction on sympathy and prejudice was in the following terms:


You must reach your decision in this case uninfluenced by prejudice or sympathy. When you are considering your verdicts you are judges. Judges can never allow their decisions to be influenced by feelings of prejudice against or sympathy for an accused or indeed anyone else connected with the case. Put aside emotion, put aside feelings of sympathy or prejudice, because it is your sworn duty to decide the issues in this case by a dispassionate consideration of the evidence.


The Judge made a similar direction in his preliminary remarks to the jury, at the start


of the trial.

[76] That direction made it clear that all jurors were to approach their decision- making tasks in a dispassionate way. However, it did not tailor the direction to the type of concern that might arise on the facts of the particular case; in other words, it

did not meet the specific concerns set out above,[30] particularly if the jury acquitted


on the stupefaction charge.


[77] The underlying thesis of Mr Stevens’ submission is that, over 20 years after consensual homosexual activity between men was legalised by the Homosexual Law Reform Act 1986, residual prejudice is held by a significant number of people against those who engage in homosexual activity. Mr Stevens drew our attention to

a recent survey in New Zealand, suggesting that while more than 60 per cent of respondents accepted homosexuality, when analysed by gender, that represented 53 per cent of men and 69 per cent of women.


[78] Mr Stevens also referred to reports of a trial in Auckland in which a so-called “homosexual panic defence” was run under the umbrella of the partial defence of provocation, to achieve a verdict of manslaughter rather than one of murder. The alleged provocative actions in that case were described by the trial Judge as no more than a “brief touching of the thigh or groin”: see the sentencing remarks of

Winkelmann J in R v Ambach.[31] The partial defence was abolished by the Crimes


(Provocation Repeal) Amendment Act 2009. Although not mentioned in the report


of the Justice and Electoral Committee that recommended repeal, Mr Stevens informed us that the issue raised in Ambach was put to the Committee in submissions.


[79] Jurors are required to swear or affirm that they will try the case before them


to the best of their ability and give their verdicts according to the evidence.[32] The standard direction on “prejudice and sympathy” reflects the need for a fair trial, a right guaranteed by s 25(a) of the New Zealand Bill of Rights Act 1990. A trial will not be fair if jurors allow feelings of prejudice or sympathy to affect their collective decision-making.


[80] This Court has frequently emphasised the desirability of general directions being tailored to meet the circumstances of a particular case. While there would be occasions on which a standard direction, of the type given in relation to sympathy and prejudice by Judge Garland in this case,[33] would be sufficient to meet fair trial needs, an appellate Court will focus on whether there is a real risk that a non-tailored direction could have led to an unsafe verdict.


[81] In our view, in a case such as this, the Judge ought to have adapted the standard direction to make it plain that the jury needed to avoid the possibility of returning guilty verdicts on the sexual violation charges on the basis of the complainant’s evidence that he would not have had consensual sexual relations with Mr Taylor because he was not homosexual or bisexual.[34] As a corollary, it would have been helpful for the jury to be warned against the possibility of acting adversely to Mr Taylor because of sympathy for the complainant’s plight.


[82] It is clear that the Crown dealt with the need for members of the jury to be wary of feelings of prejudice and sympathy which might arise. Counsel for the Crown said:


Now in every criminal trial in this Court feelings of prejudice and sympathy arise from people who are sitting having to listen to the various evidence from witnesses that is given. It is just natural by the very nature of what happens in these courtrooms and by what has happened in this case. Prejudice perhaps against or for the accused or against or for the complainant or sympathy for either one of them and in fact sympathy perhaps for other people that you may not have heard from but have heard about, such as the nine year old son that was in the household that night. You’ve also heard about things like smoking cannabis, drinking far too much alcohol and saying very stupid things you may think on a recording that night.


But it’s really important for you to realise that you have to put any such feelings of prejudice or sympathy that those sorts of things may invoke in you totally to one side. You also have to put your own moral personal views about those sorts of things to one side as well because you are the judges of fact in this case and therefore like all our Judges and Courts throughout New Zealand you have to focus on your task of assessing the evidence and the witnesses in an impartial and dispassionate way.


[83] Although these points were made in counsel for the Crown’s address, the specific point on which we are now focussing[35] was not raised (probably because of

the Crown theory of stupefaction to sexually violate) and there was no judicial imprimatur given to what was submitted to the jury.


[84] It is important for the jury to realise that a warning of this type is a factor of significance, not just something raised by counsel for their consideration. While the authorities on this topic arise in different contexts, all are focussed on the need for the accused to receive a fair trial. The imprimatur of the Judge adds a weight to the submission that might, otherwise, be lacking.[36]


[85] In our view, the Judge should have emphasised the points made by the Crown


in closing and added a reference to the possibility of prejudice arising out of the nature of the homosexual acts or sympathy for the plight of the complainant. Whether the failure to give a more nuanced direction of this type amounted to a miscarriage of justice is a different question, to which we return later.


Additional medical evidence


[86] Leave was sought to call evidence from Dr Robinson, a medical practitioner from Wellington. The subject of his affidavit was alcohol induced amnesia.


[87] The thrust of Dr Robinson’s proposed evidence was to the effect that amnesic blackouts can be common after rapid consumption of alcohol, with a related effect

on memory pathways. Nevertheless, Dr Robinson also accepted that a person who consumed excessive quantities of alcohol might experience alcohol-induced stupor with deep sleep and depressive levels of consciousness.


[88] We decline to admit this evidence. It is neither cogent nor fresh. Such matters would be within the knowledge of many jurors. Applying the principles set

out in R v Bain,[37] the evidence ought not to be admitted. On that basis, the ground of


appeal based on failure of counsel to call such evidence cannot be sustained.


Was there a miscarriage of justice?


[89] In the late 1990s, the Law Commission undertook a review of the use of juries in criminal trials. As part of that review, research was commissioned, with the approval of the then Chief Justice, to elicit responses from jurors to particular questions associated with the trial process.[38] For present purposes, two aspects of the research assume importance.


[90] The first involves jurors’ perspectives in relation to standard directions given


by a Judge. The “prejudice and sympathy” direction is regarded as such. The Law


Commission summarised the researchers findings:[39]


7.30 In addition to their instructions on the law and summary of the evidence, judges provide a number of instructions about the way in which jurors are to approach the evidence. One general point about jurors’ reactions to these instructions should be noted: at least some

of them did not realise that particular directions were “standard”;

they believed that at least some of them were being mentioned because they had special significance in the particular trial; and they therefore drew unwarranted conclusions which had the potential to influence the deliberation process and the outcome.


7.31 Because jurors were not asked specific questions about each of the standard directions, we are unable to say how common this sort of reaction was, or to what extent it impacted on individual and collective decision-making. However, our impression is that jurors commonly expected and looked for indications from the judge as to his or her assessment of the evidence and view of the appropriate verdict. Given that, it is to be expected that some of the standard directions, given in all cases without regard to the characteristics of the individual case, will have undue weight attached to them.


[91] The second relates to the likelihood of jurors bringing emotions of sympathy and prejudice to their decision making tasks. On that topic, the Law Commission summarised the research findings as follows:


7.9 Inevitably, some jurors sometimes allowed emotions of sympathy or prejudice to influence their reaction to the evidence and their decision-making. In 19 of the 48 trials, these emotions were brought

to the deliberation process, with one or more jurors reporting that either they or other jurors expressed feelings or views involving sympathy or prejudice. Sometimes jurors found themselves reacting adversely to the abhorrent nature of the alleged misconduct or the perceived character of the accused which led to prejudgment. More often, jurors were swayed by sympathy for the accused or his or her family or concern about the impact of a guilty verdict upon the accused.


7.10 However, these feelings only infrequently influenced or dictated the decision-making process of the jury or their eventual verdict. Most jurors were ultimately persuaded or cajoled by other jurors to accept the majority approach, so that their individual views were overridden by the collective process of jury decision-making. There were only six cases in which feelings of sympathy or prejudice seem to have affected the outcome of the trial in some way: three resulted in a hung jury; one in a perverse verdict; and two in a verdict which was justifiable on the evidence but arrived at by dubious reasoning.


(Emphasis added)


The research suggests a risk of prejudice affecting a decision in some six out of 48 trials studued. The risk of an unsafe verdict is diminished if a tailored direction is given.


[92] If a Judge errs in summing up to the jury, an appeal may only be allowed if a miscarriage of justice has resulted.[40] A miscarriage will have arisen if the Court is satisfied that the error has led to a real risk of an unsafe verdict.[41]


[93] As we have indicated in dealing with the reliability point,[42] the jury could have been in no doubt that the credibility and reliability of the complainant was a central issue. The finding of not guilty on the stupefaction charge goes no further than to demonstrate that the jury were not satisfied beyond reasonable doubt that the elements of the crime of stupefaction were proved.


[94] It was not submitted to us that the verdicts were inconsistent or otherwise unreasonable. In those circumstances, the jury’s exclusion of the reasonable possibility of consent or reasonable belief in consent was justified on the basis that the jury accepted that Mr Taylor took advantage of the complainant while he was in a state of drunkenness (or voluntary stupefaction) that negated his ability to consent.


[95] Counsel for Mr Taylor did not raise the question of a more nuanced direction


at the conclusion of the summing up, suggesting that, in this short trial, there was no risk of adverse verdicts based on that ground, even assuming the possibility of acquittal on the stupefaction charge. Indeed, the not guilty verdict on that charge suggests a discerning approach to the issues by the jury, rather than one based on prejudice.


[96] For those reasons, despite our view that the Judge ought to have given a tailored direction on sympathy and prejudice, we have reached the view that there is no real risk of unsafe verdicts on the sexual violation counts.


Result


[97] Leave to adduce fresh evidence is refused. The appeal is dismissed.


Solicitors:

Fanselows, Wellington for Appellant

Crown Law Office, Wellington for Respondent

[1] R v Taylor DC Palmerston North CRI-2007-031-0601, 24 February 2009.
[2] At [20]
[3] See [7], [8], [10], [13], [14], [15], [16], [18] and [20] above.
[4] R v Harawira [1989] 2 NZLR 714 (CA) at 724–726.
[5] Evidence Bill 2005 (256-1)(Explanatory note) at 1.
[6] Evidence – Reform of the Law (NZLC R55, 1999) and Evidence Code and Commentary

(NZLC R55, 1999).
[7] (NZLC PP26, 1996).
[8] (NZLC MP13 1999).


[9] Inserted by the Evidence Amendment Act (No 2) 1985, s 3.
[10] R v Moana [1979] 1 NZLR 181 (CA) at 186.
[11] R v Daniels [1986] 2 NZLR 106 (CA) at 111–112
[12] R v Accused (CA 298/88) [1989] 2 NZLR 698 (CA) at 701.
[13] Stewart (Peter) v R [2010] 1 NZLR 197 (CA) at [90].
[14] At [96].
[15] Set out at [48] above
[16] R v Baker [1989] 1 NZLR 738 (CA).
[17] At 741.
[18] R v Harawira [1989] 2 NZLR 714 (CA) at 726.
[19] Evidence: Reform of the Law (NZLC R55, 1999) Vol 1 at [475] and Vol 2 at [C385].
[20] R v Tavete [1988] 1 NZLR 428 (CA) at 431.
[21] See [20] above.
[22] R v K (an accused) [1984] 1 NZLR 264 (CA).
[23] At 268.
[24] R v Hartley [1978] 2 NZLR 199 (CA) at 206–208.
[25] R v O'Connor CA161/76, 4 May 1977.
[26] R v Beck [1982] 1 All ER 807 (CA).


[27] R v Vo CA321/98, 14 December 1998.
[28] R v Chignell [1991] 2 NZLR 257 (CA) at 268
[29] At 6.
[30] At [42].
[31] R v Ambach HC Auckland CRI-2007-004-27374, 18 September 2009 at [27].
[32] Juries Act 1981, s 20 and Juries Rules 1990, Sch 1, r 22 and Form 2.
[33] See [75] above.
[34] See [20] above.
[35] See [42] above.
[36] See R v Shipton [2007] 2 NZLR 218 (CA) at [38]. See also R v Clayton-Wright (1948) 33 Cr App R 22 at 29; R v Ryan [1973] 2 NZLR 611 (CA) at 614; and R v Amado-Taylor (2000) 2 Cr App R 189 (CA) at 191. Although dealing with a much more extreme situation, the trial Judge’s role, in this context, is discussed further by Whealy J, of the Supreme Court of New South Wales, in “Difficulty in Obtaining a Fair Trial in Terrorism Cases” (2007) 81 ALJ 743 at 744–745.
[37] R v Bain [2004] 1 NZLR 638 (CA) at [22]–[23].
[38] The research was undertaken by Warren Young, Neil Cameron and Yvette Tinsley. A summary of the research findings is published in Juries in Criminal Trials Part Two (NZLC PP37 Vol 2, 1999).
[39] At paras 7.30 and 7.31.
[40] Crimes Act 1961, s 385(1)(c).
[41] R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 per Elias CJ at [6] and Tipping J at [110].
[42] See [90] above.

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