TAYLOR v R [2022] NZCA 626

TAYLOR v R [2022] NZCA 626 [14 December 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA55/2005[2022] NZCA 626BETWEEN BERNARD TAYLORAppellantAND THE KINGRespondentHearing: 23 February 2022Court: Cooper, Katz and Palmer JJCounsel: S J Gray and E P Priest for AppellantE J Hoskin for RespondentJudgment: 14 December 2022 at 11.00 amJUDGMENT OF THE COURTA The notice of abandonment of the appeal is set aside.B The application to adduce the evidence of Charlie Taylor in support of theappeal is declined.C The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)Table of ContentsPara NoIntroductionThe notice of abandonmentCircumstances of the abandonmentThe alleged offendingMr Taylor's interviewGrounds of appealCounsel error — election not to give evidenceAdvice not to give evidenceNo opportunity to review video statementFailure to prepare a brief of evidence for Mr TaylorCounsel error — failure to call Charlie TaylorCounsel error — summaryProsecutor's closing addressResult[1][5][8][20][24][29][32][33][45][61][66][76][77][84]Introduction[1] The appellant, Mr Bernard Taylor, was found guilty following a trial beforeHugh Williams J and a jury on two charges each of murder and causing grievousbodily harm with intent. The Judge convicted and sentenced him to life imprisonment,ordering that he serve a minimum period of imprisonment of 17 years.1[2] The offending occurred on 3 January 2004. The trial took place between13 and 16 December 2004. After his sentencing, Mr James Faleauto was assigned toact for Mr Taylor on legal aid and an appeal against conviction was filed. However,in the circumstances we explain below, Mr Taylor decided to abandon the appeal anda notice of abandonment was filed at some time prior to 19 September 2005, when itwas accepted by this Court. Mr Taylor now seeks leave to withdraw the notice ofabandonment and proceed with the appeal.[3] If the appeal can proceed, Mr Taylor alleges that there was a miscarriage ofjustice, in particular because of errors made by trial counsel. One of the difficultieswe face is that given the length of time that has elapsed since the trial, the memoriesof the experienced counsel who acted for Mr Taylor, Mr Roger Chambers andMr Hugh Leabourn, have understandably faded. And they have not been able to access1 R v Taylor HC Auckland CRI-2004-047-7, 15 February 2005 [Sentencing notes] at [46].Mr Taylor's file to refresh their memories because it was passed to Mr Faleauto andhas not been able to be recovered.[4] The relevant substantive law governing the appeal is s 385 of theCrimes Act 1961, which requires the Court to allow the appeal if we are of the opinion,relevantly, that there has been a miscarriage of justice.The notice of abandonment[5] Prior to considering whether there has been a miscarriage of justice, we mustfirst address the question of whether the notice of abandonment should be set aside.[6] This Court outlined the test to be applied when it is asked to set aside a noticeof abandonment in Cramp v R.2 After reviewing various authorities the Courtconfirmed that there is power to set aside a notice of abandonment not only where thenotice is properly regarded as a nullity, but also where there are exceptionalcircumstances and if the interests of justice so require.3 The nature of the exceptionalcircumstances was explained in Bridgeman v R:4[9] In considering whether such exceptional circumstances exist,the Court will have regard to the importance of finality in criminal cases,the circumstances in which the Notice of Abandonment was given, and thenecessity for an applicant for such an order to satisfy the Court that the reasonsfor the application are of an exceptional nature.[7] Mr Taylor has not made a formal application in respect of the notice ofabandonment, but Ms Gray argued orally that it was a nullity. We doubt that is thecorrect analysis: on his own evidence Mr Taylor decided to abandon the appeal.5The questions are rather whether the circumstances in which Mr Taylor decided to do2 Cramp v R [2009] NZCA 90. We note that the Court referred to its power to set aside the noticeof abandonment and give leave to withdraw the notice: compare [20] and [26] with [27] and [34].The terms appear to be used interchangeably. The Court's conclusion was that there was no properbasis for allowing withdrawal of the notice of abandonment: at [35]. However, the order recordedon the front page of the judgement dismissed the application to set aside the notice ofabandonment. We can see no substantive difference between the two expressions and also treatthem interchangeably in this judgment.3 At [26].4 Bridgeman v R CA87/04, 10 November 2005.5 For a discussion of nullity threshold, see R v Medway [1976] QB 779 (CA).so can properly be considered to be exceptional, and whether the interests of justicefavour setting the abandonment aside.Circumstances of the abandonment[8] The circumstances of the abandonment of the appeal are addressed in affidavitsfiled by Mr Taylor and his mother, Mrs Isabella Taylor.[9] In his affidavit, Mr Taylor said that after his conviction a family member madecontact with Mr Faleauto and asked him to represent Mr Taylor on appeal.6[10] In her affidavit, Mrs Taylor said that she and her husband had gone to seeMr Faleauto. He told them the appeal would cost $10,000 and further payments mightbe required. They paid the $10,000 about a week later. Mrs Taylor said she was notaware that legal aid could be obtained. She said Mr Faleauto said he would visitMr Taylor in prison, which he did about two weeks later.[11] Mr Taylor said that Mr Faleauto came to see him. He recalled signing anapplication for the purposes of legal aid, which was granted. But he rememberedseeing Mr Faleauto only once before deciding to abandon the appeal. He saidMrs Taylor told him about the $10,000, saying she would mortgage the family hometo raise the money, but he would not allow that to happen: his parents were not welloff and their home was their only asset. The relevant background also included thefact that his father was suffering from cancer at the time. So, he told his mother hewould not agree. Mr Taylor said he had no idea that what Mr Faleauto was doing waswrong, and thought that was just how the system worked for appeals. He said he didnot talk about this with anyone else and simply accepted the situation.[12] Mrs Taylor gave a slightly different account. She said that after Mr Taylor'smeeting with Mr Faleauto, Mr Taylor telephoned her, saying that he did not like6 Both the appellant and Mrs Taylor gave evidence about their interactions having been withMr Ted Faleauto, but Ms Gray clarified that was incorrect and it was Mr James Faleauto who wasinvolved. Nothing turns on this issue, but it is important we record the true position.James Faleauto was struck off the roll of barristers and solicitors of the High Court in 2010.A waiver was provided to enable him to be spoken to by the Crown, but attempts by the Crown tocontact him were unsuccessful.Mr Faleauto and that he had kicked Mr Faleauto out of the room. He told her to getthe money back. A few days later she rang Mr Faleauto and asked him to return themoney. Nothing happened until she spoke to "a lady at the court" who promisedto look into it. Some months later, $5,000 appeared in her bank account. She couldnot remember where it came from. She took no further action to secure the balance.[13] Mr Taylor said that it was only after discussing his case with a fellow prisoner,something he had not done for "many many years", that he made contact withMs Gray. He then learned that he had a right to appeal his convictions and may do sowith the benefit of legal aid. He now seeks to proceed with an appeal against hisconvictions.[14] We think these facts demonstrate that the context in which the appeal wasabandoned were exceptional. And once it is accepted that Mr Taylor made his choiceto abandon the appeal in the context of Mr Faleauto's unsatisfactory conduct, that mustbe relevant to the question of whether the interests of justice favour setting aside thenotice of abandonment.[15] Ms Hoskin for the Crown points out that Mr Taylor's affidavit explains thereasons he decided to abandon his appeal, but it does not address the reasons for hisdelay in taking the present action, other than to say that he just accepted the position.[16] That may be so, but the fact is for 16 years he took no steps. This can only bebecause he did not understand that Mr Faleauto had no right to make a demand forpayment. It seems most unlikely that he would have deliberately refrained frompursuing an appeal on legal aid had he known he could do so without cost.[17] In a case where there has been such a long delay the importance of the interestsof finality may become more pronounced. We were not referred to a case where anotice of abandonment has been set aside after such a long delay. In Cramp the Courtconsidered that the merits of the proposed conviction appeal were relevant to whetherto set aside the notice of abandonment. It concluded that the proposed grounds ofappeal lacked merit and therefore there was no proper basis for allowing withdrawalof the notice; in the circumstances, the interests of finality should prevail. 7[18] We follow a different approach in this case, because we are satisfied that theclear link between Mr Faleauto's misconduct and the abandonment of the appeal aresuch that the interests of justice point clearly to allowing the appeal to proceed,notwithstanding the interests of finality. So we set aside the notice of abandonmentand turn to consider the merits of the appeal.[19] Where a notice of abandonment is to be set aside, the effect must be that theoriginal appeal is resurrected so that it is not necessary to extend the time forappealing: there is no suggestion that the appeal was not filed in time. The grounds ofthe appeal have now been particularised in a way that they were not at the time, butthat is simply a question of amendment of the grounds, not the commencement of anew appeal.8The alleged offending[20] The Crown's case was that Mr Taylor was at his home in Port Waikato with hisextended family and friends during New Year celebrations on 31 December 2003 andthe days thereafter. There was a party that lasted until the early hours of 3 January2004, when one of the teenagers at Mr Taylor's property, Mr Lee Boison, becameinvolved in an altercation with three teenagers passing by the property on foot. At thetime of this incident, Mr Taylor, his brother Charlie and others were sitting around abonfire situated towards the rear of a vacant section next door to Mr Taylor's property.[21] The passers-by met up with a group of friends whom they told about theincident with Mr Boison. About 16 members of this group decided to return toMr Taylor's property. On arriving outside the property, they began swearing at thoseon the property including by using derogatory gang-related language. Mr Taylor andhis associates were regarded as linked to the Mongrel Mob; the other group was7 Cramp v R, above n 2, at [35].8 The foregoing discussion means that we do not address Ms Hoskin's argument that leave shouldnot be granted to extend the time for appealing. This is an issue that does not arise.associated with Black Power.9 As Hugh Williams J put it, in a ruling that the defenceof provocation was available to Mr Taylor, the members of the group trading insultsfrom the roadside were "clearly spoiling for a fight" and, after further angryexchanges, "they then invaded the property in some numbers".10[22] A fight developed and bottles were thrown by each group. Charlie Taylorwalked down from the bonfire to the bottom of the property to join the fracas but hewas outnumbered. Mr Taylor and some others went to Charlie's aid. Mr Taylor hadarmed himself with a boning knife and, in the fight that ensued, stabbed four of theteenagers in the invading group. Two were killed. One of the deceased,Mr Hiko Clark, suffered a stab wound that was 10 cm deep and pierced his heart.The other, Mr Tahiwi Herangi, suffered a stab wound that was 13 cm deep and piercedhis liver.[23] The Crown rejected Mr Taylor's claim that he had acted in defence of himself,his brother Charlie and other family members. In closing, the prosecutor claimed thatMr Taylor brought the knife into the fight out of "anger and frustration" against abackground of ongoing conflicts with young men associated with the Black Powergang in the Port Waikato area, based on the perception he was a member of theMongrel Mob. It was asserted that on the night Mr Taylor was finally pushed beyondbreaking point and took the knife into the fight to ensure "this will not happen again".The prosecutor said: [Mr Taylor] is sick and tired of being given a hard time by these youngguys, and he is going to teach them a lesson they will not forget, and this willnot happen again.Mr Taylor's interview[24] Mr Taylor gave a videotaped interview to the police later on the day of theoffending. It commenced shortly after 1 pm and continued to 3.25 pm. He initiallydenied that he had been involved in any fighting, but the interviewer,9 Mr Taylor maintained he had no links to the Mongrel Mob, although some at his party did.He often wore red, but that was because it was his favourite colour.10 R v Taylor HC Auckland CRI-2004-057-7, 15 December 2004 at [5].Detective Constable Stevenson, told him that others who were present had said theyhad seen him fighting. There was this exchange:Q. Because um the thing is Bernie that they've all said that they sawyou fighting. That people from the address went down and and foughtthese guys because they came on to the property.A. Did they, oh? Oh, I don't know where they get that from.Q. So you didn't go and fight them?A. No.Q. They say that um basically you, your brother Charlie, Wayne, Lee,Brian were all involved in the fight.A. Oh oh. Oh like I said I was wasted as man, I Q. You did go and fight them didn't you Bernie?A. Well only because they came on the property.Q. Yeah. How many guys came on the property?A. I'm not really too sure. I'm not really too sure because it was quitedark.Q. Mm.A. It's the darkest part of the house where we were sitting in the frontthere. They just come piling over, yeah. I was wasted as bro.Q. Who were you fighting?A. Well that's it, got me.Q. Mm.A. Yeah.Q. You know you were fighting though eh?A. Well I must have been if they said so. I I've got a bit of an earache somaybe I did cop one in the ear.[25] Shortly after this exchange, Mr Taylor claimed that he had seen members ofthe invading group with knives, and that his brother Charlie had been cut under thechin. Under further questioning he admitted that he did not see that happen, and hewas not sure whether Charlie's injury was from a cut from a knife or from a brokenbottle. After the fight was over, Mr Taylor described sitting back down around thefire. Charlie had cleaned up and they had burnt his singlet on the fire because it wasripped.[26] Mr Taylor was questioned on the basis that one of the persons stabbed and inhospital had described his attacker in terms that were consistent with Mr Taylor havingbeen responsible. That was principally because Mr Taylor was bald, unlike all theothers in his group. Mr Taylor denied having stabbed that person, but under furtherquestioning, admitted that he must have done so. The interview continued:11Q. You did, did stab him didn't you, the guy at the hospital?A. Must of. I told them to stay off the property. Had to look after thekids bro.Q. Mm. I can understand that. Where's the knife now Bernie?A. Be beside the fire.Q. Uh huh.A. Was using it to cut the pork.Q. What sort of knife is it mate?A. Boning knife.Q. Uh huh. So [unintelligible] A. All I wanted was them to stay away from my kids on my property.Q. When you came out from inside did you go to the fire to get the knifefirst?A. When I woke the kids up, yeah. I told the kids to get upstairs andspotted it, when I seen them start to come over. I thought fuck, they'renot getting me.Q. How many people did you stab?A. I must have done it all. I was only trying to keep them off the property.Q. Yeah.A. Just saw red.Q. Yeah.11 The interview transcript we have seen contained a number of pencilled edits, some of which areillegible. At trial, Detective Cryer, who had reviewed the transcript, confirmed the wording of themost significant pencilled edits and that the other edits were insignificant. We have included theedits to the extent they are legible or were confirmed by Detective Cryer.A. Just trying to stick them in the arse, get the fuck off. It's like, ah, likeI sobered up because it was like seen them all piling over.Q. Do you know how many people you were fighting with?A. They were just piling on mate, they were just piling on.Q. Yeah.A. Yeah. Like I said they'd done it to me before, you know yeah justeasy kill, just pile on the bastard you know, get us all. Like last night,all I thought of was my kids, thought of all the kids that are there orthis morning, or whatever it is. I just wanted them off the property.Q. Uh huh. Where were you aiming Bernie?A. Mm?Q. Where were you aiming?A. For their legs and their arse.Q. Yeah.A. Just you know, fucking get off. I didn't want no-one to die. That'swhy I was there just wanting to protect, protect my kids, protectthe kids that are there. But they just never leave me alone.Q. Do you know how many you hit, how many you struck?A. Nah. Like I said I just Q. Who else from your place was involved in the fight Bernie?A. Just me mate oh and my brother, but only fists.Q. Yeah.A. I think he did. I don't, I was a bit busy trying to keep them off to bewatching everybody else. All I saw was heaps and heaps Q. Yeah. Yeah but you were using the knife.A. Just like I was sticking them in the arse and that, trying to stick themin the legs and, I was telling them to get off.Q. Did you aim high?A. Nah.Q. No.A. No, it was on the bottom, it was.Q. You know the damage a knife can do?A. Yeah, that's why I was going for the arse and leg. I thought I was.[27] Mr Taylor's principal defence at the trial was defence of himself and defenceof another, namely his brother Charlie. The issue of provocation was evidently raisedby the Judge, and Mr Leabourn closed on that defence, as well as defence ofMr Taylor's dwelling house.[28] According to Ms Gray, it was said that Mr Taylor had seen Charlie beingswarmed by a number of young men at the bottom of the property, and went to hisrescue. As he was trying to reach Charlie, he himself had been attacked by the samegroup. Outnumbered and forced onto the defensive, he had tried to get the attackersoff him. It was during this struggle that the four victims received their wounds.Grounds of appeal[29] The principal ground of the appeal against conviction is trial counsel error.Ms Gray submitted that trial counsel made two fundamental errors which, individuallyand cumulatively, created a real risk that the outcome of the trial was affected. It issaid first that Mr Taylor's decision not to give evidence was not fully informed,as trial counsel failed to properly advise him on his election. The second complaint isthat trial counsel failed to call Charlie Taylor, a material witness who would have beenable to give evidence that supported Mr Taylor's claim of self-defence.[30] As Elias CJ emphasised in R v Sungsuwan, trial counsel error is not itself aground of appeal referred to in the statute.12 Her observation was made with referenceto s 385(1) of the Crimes Act, applicable in this case, but it is also true of s 232(2) ofthe Criminal Procedure Act 2011. The statutory language in both provisions refers toa "miscarriage of justice". As the Supreme Court explained in Lundy v R, amiscarriage of justice for the purposes of s 385(1)(c) arises when there has been anirregularity in the trial that was "plainly capable" of affecting the result.13 Where it isalleged that there has been trial counsel error the focus of the inquiry is not on thecompetence of counsel, but on the effect of any error on the outcome of the trial.12 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [7].13 Lundy v R [2019] NZSC 152, [2020] 1 NZLR 1 at [24].[31] Another ground of appeal rests on statements made by the prosecutor inclosing, with reference to Mr Taylor's previous occupation as a meat boner in anattempt to further the Crown case on murderous intent. Ms Gray submits the referenceto Mr Taylor's occupation was irrelevant and highly prejudicial.Counsel error — election not to give evidence[32] Ms Gray submitted that Mr Taylor's election not to give evidence was not fullyinformed for three main reasons:(a) Trial counsel erred in advising Mr Taylor not to give evidence based onhis previous convictions. This advice was erroneous, as his convictionswould not have been admissible.(b) Mr Taylor was not given the opportunity to review his police interviewor to have read to him the transcription of his interview prior to makingthe election not to give evidence. In the circumstances, he could notmake a fully informed decision as to whether he should give evidence.(c) No brief of evidence was prepared for him.Advice not to give evidence[33] In his second affidavit, which explained why he thought that a miscarriage ofjustice had occurred, Mr Taylor said that he recalled being advised not to give evidenceat the trial. He said counsel had told him that the police interview provided a goodexplanation of what occurred, and thus it was not necessary for him to give evidence.He could not remember being asked if he wanted to give evidence, but he could recallbeing told it was not a good idea, as the Crown might bring up his past convictions.[34] In his affidavit in response, Mr Chambers said that his usual practice wouldhave been to assess the evidence before making a decision as to whether evidenceshould be called. He recalled that Mr Taylor's video interview was a good one, andthought it gave a good explanation of what had occurred. He added that he andMr Leabourn did not want to "damage the cause by running into the difficulty ofprevious convictions".[35] Mr Chambers acknowledged that his recollection of the trial was "now hazy".He also said that shortly after sentencing, he had received an authority from eitherMr James Faleauto, or his brother, Mr Ted Faleauto, to hand over the file.He presumed that was because they wished to review the files for the purposes of apossible appeal. He heard nothing further over the following years until early 2021.He did recall however that the issue of calling defence witnesses was discussed withMr Taylor, and he accepted the advice not to give evidence himself or call evidencefrom others.[36] Mr Leabourn, who was second counsel for Mr Taylor at the trial, alsoacknowledged that given the passage of time he did not have a strong memory of thefacts or any memory of why some trial decisions were made in the way they were. Hesaid:It is my habit to keep detailed trial notes which I would have done howeverthese have either been returned to Mr Chambers to be placed on the file ordestroyed as part of my regular file destruction policy.[37] Mr Leabourn was unable to say why the decision was made not to callMr Taylor at the trial. He added:I note from the case on appeal that there was a lengthy police interview thatwas played to the jury. I can only speculate that the reason not to call theappellant was based around the fact that his defence was sufficiently set out inthat interview and calling him would risk something new, or different, beingadded in evidence in chief, or in cross examination. This might thenjeopardise his case.[38] Mr Leabourn said he could not recall whether Mr Taylor's conviction history"formed any part of the decision-making process".[39] Mr Chambers was cross-examined on Mr Taylor's previous convictions andaccepted that they had been influential in the decision not to call Mr Taylor to giveevidence. Mr Chambers referred to the convictions "relating to violence and knives".He accepted that the only basis upon which the previous convictions could have beenreferred to at the trial would have been if Mr Taylor had put his character in issue.But he referred to the risk that Mr Taylor might have said something which could haveopened up that issue. He had considered that the risk was too great to incur it. But healso referred to what he described as the "other major risk" — that Mr Taylor mightnot have been a good witness and that he was unsure what Mr Taylor might have saidin the witness box.[40] Mr Taylor's criminal history dates back to 1996. It includes property-relatedoffending, minor drug-related offending and wilful damage. It also includes unlawfulpossession of firearms, possessing a knife in a public place and carrying an offensiveweapon. The historical offending is not significant compared to the charges Mr Taylorfaced in this trial and it is difficult to see that it would have been influential in thedecision to advise him not to give evidence, notwithstanding Mr Chambers' concernsthat the previous convictions would be referred to.[41] We think it more likely that the advice of trial counsel was based on the factthat the narrative in Mr Taylor's video interview formed a sufficient basis for thedefence of self-defence, which trial counsel had intended to run at the trial. As hasbeen seen, it was sufficient also to ground a defence of provocation.[42] We are not persuaded that a decision to advise Mr Taylor not to give evidenceon the basis that the account given in his video interview was sufficient, and there wasa risk that he might unravel under cross-examination, can be criticised. Ms Graysubmitted that the decision was wrong because it was based on theprevious convictions. However, we are satisfied on the basis of the evidence that therewere other reasons for the advice, and we consider they are likely to have been moreinfluential.[43] Ms Gray relied on decisions of this Court that have emphasised that theelection of whether to give evidence is a decision for the defendant, and that it mustbe made on an informed basis. In this context, it is for trial counsel to ensure that thedefendant has the necessary information, and that this is conveyed in an appropriateand timely way.14 Here, Mr Taylor accepted that he had been advised that it would nothave been a good idea for him to give evidence and that he had agreed with the advice14 Tarring v R [2016] NZCA 452 at [26]. See also van der Krogt v R [2020] NZCA 512 at [20].he had been given because counsel were the experts, and he trusted what they said.Although in the circumstances it is not possible for written instructions to be referredto, we consider on the balance of probabilities it is likely that experienced counselsuch as Mr Chambers and Mr Leabourn would have procured written instructions thatMr Taylor was not to be called, in accordance with what both said was their normalpractice.[44] In all the circumstances we are not prepared to find trial counsel error on thisground.No opportunity to review video statement[45] This allegation of trial counsel error rests on the claim that Mr Taylor did nothave an opportunity to review his police interview prior to the trial. It is said thismeant that he was unable to make a fully informed decision as to whether he wantedto give evidence. Part of the context for this submission is that, at the time, Mr Taylorwas unable to read or write. He was not able to review his police interview by readingthe transcript of it. His only recourse would have been to watch the interview, or havesomeone read the transcript to him. His evidence was that the only time he was ableto watch the police interview was at the trial and prior to that neither Mr Chambersnor Mr Leabourn had played it or read the transcript to him.[46] Mr Chambers had a weak recollection that the typed transcript had beenprovided to Mr Taylor and read by him. Mr Leabourn confirmed that Mr Taylor wouldhave had a copy of the transcript, but he recalled talking to Mr Taylor about theinterview, because it would have been important to the decision of whether Mr Taylorshould have been called to give evidence. Ms Gray pointed out that neitherMr Chambers nor Mr Leabourn had given evidence that the interview was played toMr Taylor prior to the trial.[47] Ms Gray noted in this context that the Crown had closed to the jury on the basisthat while there was no question that Charlie Taylor was being beaten, the facts didnot show that Mr Taylor had joined the fight to defend his brother — rather, he hadjoined in because of his anger and frustration. Ms Gray said that had Mr Taylor givenevidence he would have been able to explain that Charlie was the reason he had joinedin the fight and he could then have explained how what had initially started out asdefence of another had turned into defence of himself when he became the focus of aseparate attack. These points had not been made clear in the video interview.She claimed that because Mr Taylor had not been given the opportunity to review thevideo, the jury had not been provided with an accurate account of self-defence.[48] Ms Gray made a further submission based on the fact that in the policeinterview Mr Taylor had repeatedly brought up an earlier attack on him,at Sunset Beach in Port Waikato, in which he had been seriously assaulted by membersof the same group that was the subject of the violence on 3 January 2004. In theinterview, he described those attacking him on the previous occasion as "more or lessthe same crowd". Defence counsel had cross-examined witnesses at the trial about theSunset Beach incident. Those included Mr Boisen, Mr Wayne Boisen andMr Steven Lloyd. The jury would have been well aware of the Sunset Beach incidentand would have taken it into account when considering whether Mr Taylor's use offorce on 3 January 2004 was reasonable in the circumstances.[49] Against that background, Ms Gray then noted that Mr Taylor had been involvedin an even earlier incident, which he had not mentioned in the police interview.Mr Taylor mentioned that incident in a third affidavit that he filed for the purposes ofthe present appeal. His evidence about it was as follows:11. However I didn't tell the police officer about an earlier incident wherethe Black Power broke into my house, threatened me and put a gun inmy mouth. They did it for revenge as I had beat up one of their guysfor trying to come onto someone I knew. There were three of them,all in their 30's. They came into my house and tied me up. One ofthem put a gun to the back of my head and said "this is for my cousin".As I looked up, he put the barrel in my mouth. I was scared to death.12. Back then I was living in Onewhero. I moved out of the area rightafter this incident.13. I think this happened back in 1994 or 95. My son was just walking atthe time. I remember the guys who did it were charged and pleadedguilty. There was some media on it.14. I told my lawyers about it but I think they got it confused with theincident that I was charged with. They didn't ask me to give evidenceon it. I would have wanted to, as it explains why I feared for my lifeand Charlie's on that night when I stabbed them. When they rushedonto the property I just had flashbacks to back when the three guystied me up and put a gun to my head. The Black Powers were a verydangerous group.15. I never told the police officer who was interviewing me about it as itnever came up. I was just focused on the situation I was in. Also itwas ages ago and had already been dealt with.[50] Ms Gray contended that this particularly violent event would have been highlyrelevant and provided further context as to why Mr Taylor considered it necessary tobring a knife into the fight when he saw his brother being attacked. It was vital thatthe jury had heard about it, because of its relevance to their assessment as to what hebelieved the circumstances to be at the time. As with the current charges, and the otherinstance referred to on Sunset Beach at Port Waikato, there was a common themeinvolving attacks by members of Black Power. Because there were no witnesses tothis earlier incident, the only way it could have been brought up was if Mr Taylor hadgiven evidence about it himself.[51] Further submissions made by Ms Gray concerned the fact that the knife wasallegedly not Mr Taylor's first choice of weapon. This was based on a statement inhis second affidavit:11. When the boys first arrived outside the property, I was standing on thebalcony as I was just about to get ready for bed. I saw Charlie beingswarmed by them by the bottom of the grass near the road, and that'swhen I grabbed a knife from the kitchen upstairs and headed downtowards Charlie. As I walked down, I saw a stick on the ground.I went to pick it up and as I bent down, I got jumped by 6 or 7 of theother group. I didn't manage to get a hold of the stick so all I had onme was the knife I had grabbed from upstairs.[52] This information was not contained in the video interview. Ms Gray submittedthat information would have been important for the defence because it showed that theknife was only used a means of last resort. She argued that, if the jury had been awareof this further information, they would have known that the only thing he had to defendhimself with at the time was the knife. Because Mr Taylor was not called to giveevidence about it he was left vulnerable to the Crown's allegation that the knife wasactually his first choice of weapon.[53] Ms Gray conceded that the police interview provided a good account of whathad happened and that trial counsel were not wrong to rely on it as the basis ofMr Taylor's defence. However, for all the reasons given above, Ms Gray submittedthat the jury was not given an accurate or complete picture as to how the stabbingscame about and, in particular, the central matter crucial for the appellant, the issue ofself-defence. Had Mr Taylor been afforded the opportunity to watch the policeinterview prior to the trial, he would have been able to able to remind himself that thepicture was incomplete. She referred to McNaughton v R in which this Courtconcluded, in the circumstances of that case, that there was no proper basis on whichthe jury could have determined what the situation was from the defendant's point ofview, an essential element of the defence of self-defence.15[54] We accept it would have been desirable for defence counsel to ensure that theirdefendant was reminded of the content of the video interview before the trial tookplace. However, he was able to view the interview at the trial and he would thereforehave been in a position then to advise his counsel of significant matters omitted fromit. The evidence he now gives, and the submissions of counsel based upon it, are saidto follow from having had the opportunity to re-watch the interview. If these matterscan be raised now, they could have been raised at the time, when his memory of whathad occurred must have been better.[55] Similarly, we are not persuaded that the omission in the interview regardingthe incident said to have occurred in 1994 or 1995 was of any significance. First, itrelated to events said to have occurred up to nine years earlier. Mr Taylor said that hetold counsel about it but speculated that they had confused it with the events on3 January 2004. That seems inherently unlikely, because of the detail in the earlierincident about Black Power members invading his house, tying him up, threateninghim and putting a gun in his mouth. On the face of it the circumstances in the presentcase were very different, and it is most unlikely counsel would have been confused.Secondly, the idea that the earlier incident would have affected Mr Taylor's responseto events as they unfolded on 3 January 2004 seems unlikely. If it was influential, itis odd that Mr Taylor did not bring it up at the time of his interview. It is not plausiblefor him to assert now that this was a traumatic experience that had a significant effecton his conduct so many years later when he did not mention it at the time of his15 McNaughton v R [2011] NZCA 588 at [38].interview the morning after the event. The fact that he told the police about theSunset Beach incident and not the 1994 incident suggests that the earlier event did notin fact influence his conduct on 3 January.[56] It is also difficult to reconcile an ongoing effect of something that happened in1994 or 1995 with his claimed need to act in self-defence in the very differentcircumstances (a quickly unfolding fracas) with which he was confronted inJanuary 2004. In fact, we think it could well have been counterproductive to rely onthe historical incident: it would have risked playing into the Crown's narrative that hewas motivated more by anger than self-defence on the night.[57] Finally, we turn to the submission that the knife was in fact Mr Taylor's weaponof last resort. The answer to that proposition, as Ms Hoskin pointed out, is that in hisaffidavit, Mr Taylor described setting off to help Charlie having "grabbed a knife fromthe kitchen upstairs". So the knife was his first choice of weapon, procured before hehad any thought of using a stick. We do not think an assertion to the contrary couldhave been at all significant in the trial or in respect of counsel's advice as to whetheror not Mr Taylor should give evidence.[58] Standing back, we are satisfied that overall the advice to Mr Taylor that heshould not give evidence cannot be impugned. He had given a lengthy interview tothe police which set out his account of what had happened on the same day that theevents occurred. Although he initially denied having been involved in any fighting,he ultimately accepted that he was responsible for having stabbed the victims.The narrative he gave was sufficient to enable a self-defence argument to be run,including establishing the context of ongoing animosity towards him by associates ofthe Black Power gang. It included the Sunset Beach incident, which might have beenrelevant to the jury's perception of the circumstances as he believed them to be.He had also explained in the interview how he tried to minimise the harm to his victimsby aiming at their "legs and arse", and trying to "keep" his strikes "low". He hadasserted that he "didn't want no one to die" and had described events which hadunfolded quickly. We agree with Ms Hoskin's submission that the account he gavelaid a foundation for claiming that he lacked murderous intent. In addition, he haddescribed circumstances in which both he and his brother were being attacked and hewas faced with an aggressive group of young men who had interrupted the party takingplace, and he had described his motive as being one seeking to protect his family,children and property.[59] All of this gave an appropriate foundation on which to run a plausible argumentof self-defence and provocation. Relevant parts of the interview were referred to byMr Leabourn in closing, and in the summing-up the Judge reminded the jury that:Mr Leabourn went through the video at length, directing your attention to anumber of passages there in support of his submission that the defences wereavailable.[60] None of the matters raised in support of this ground establish counsel error inrespect of a failure to enable Mr Taylor to view the video prior to trial.Failure to prepare a brief of evidence for Mr Taylor[61] This ground rests on a slender thread. In his second affidavit, Mr Taylor says"I don't think I ever had a brief of evidence prepared. I don't remember one at all."[62] Mr Chambers did not deal directly with that issue in his affidavit, and we inferhe was intending to cover it by his reference to an inability to comment with anyassurance on the issues raised by Mr Taylor, due to the lapse of time. However, undercross-examination by Ms Priest he would not accept counsel's proposition that no briefwas prepared and said it was his invariable practice to get written briefs.[63] In his affidavit, Mr Leabourn said:24. Although I do not have an independent memory of preparing a briefof evidence, or assisting in the preparation of one, I can confirm it ismy usual practice to do so, even in cases where it is not the intentionto call the client.25. Given that I was second counsel in the trial it may have been left tome to draft and complete the brief. Had that been the case it wouldhave been done.29. I have been second counsel many times in serious criminal trials, andI usually take it upon myself to at least draft the instructions in theform of a brief to relieve the workload of lead counsel.31. Again I do not have an independent memory whether I did this in thistrial, or if Mr Chambers did it himself, but I would be surprised if itdid not happen as I know it is recommended best practice. [64] Mr Leabourn also said that a written brief would be prepared even if adefendant was unable to read it, because of its value for the purposes ofcross-examination. In such a case the brief would be read over with the defendant andedited to reflect any alterations that were suggested. He added that having beenpractising as a criminal barrister since 1998 he did not think he had ever completed atrial, whether as lead or second counsel, in which there was not a written brief.[65] There is simply not enough evidence for us to decide with certainty whether ornot a brief was prepared due to the passage of time. In the circumstances, we couldnot conclude that a brief was not prepared, and this ground cannot succeed for thatreason. It is unnecessary to consider the issue further.Counsel error — failure to call Charlie Taylor[66] A second error counsel are alleged to have made is the failure to callCharlie Taylor, who it is said was a material witness who would have been able to giveevidence that supported Mr Taylor's defence. In the amended grounds of appeal,reference was also made to a witness present on the night, Mr John Weke, but Ms Graydid not rely on his absence on the appeal and we do not therefore address his proposedevidence.[67] In respect of Charlie Taylor, Ms Gray sought to rely on an affidavit obtainedfor the purposes of the appeal.[68] In that affidavit, Charlie Taylor corroborated Mr Taylor's account of theSunset Beach incident, referring to it as having occurred "sometime early in 2003".He also gave an account of who was present at Mr Taylor's property on the eveningof 3 January 2004, and he described a group of persons that he knew were associatedwith Black Power who arrived outside the property at about 2.00 or 3.00 am andcommenced calling out insults and throwing rocks and bottles from the road.He walked towards them, telling them that there were children present, but shortlyafter that they had "swarmed" on him. He said:21. They just swarmed on me then. I tried to hit the biggest buggar, hewas the one with no shirt on and the Black power tattoo on his back,hoping they would then go away but I just got hammered. There washeaps of the them, they were coming from all sides. I had got knockedonto my back by the hedge and I was getting cracked by all sorts.I was getting hit from everywhere.22. I don't know what was happening with Bernie and John, I thoughtthey were probably being attacked by them too.23. I don't know how long it went for but I was seeing stars by then andmight have been knocked out a bit. There was lots of noise and carryon.24. I don't know what was happening to Bernie and John when I wasgetting attacked.25. The next thing I remember was Bernie helping me out of the hedge.I said where are they and he said they've gone they are going home.I don't remember where John Weke was.26. When I stood up I saw a guy lying on the ground. I said who's that,I thought it might have been John Weke. Bernie said [it's] one ofthem. The guy was just lying there kicking a bit. I don't know whathad happened to him.27. I think about then I realised he had been stabbed. I didn't knowanyone else had been. I don't remember Bernie saying anything aboutwhat had happened.28. I saw that the rest of the fella's were out on the road. I yelled at themto come and get [their] mate. I think two of them came in and draggedhim out onto the road.[69] Ms Gray submits that if trial counsel had spoken to Charlie Taylor and obtaineda statement from him, this evidence would have been available at the trial.She conceded it was not fresh but claimed that it was credible and cogent. She referredto Charlie's account as an accurate description of the speed and ferocity of the attack,showing how quickly the situation escalated. It would have assisted with painting abetter picture of the true seriousness of the fight to the jury and would have put the cutCharlie sustained to his chin in a proper context, thereby rebutting the suggestion ofthe prosecutor in closing that the attack had not been intense. It would have also beenmade clear that Charlie had been knocked to the ground, a matter that was unclearfrom the evidence given at the trial. Ms Gray claimed that if Charlie had been called,it is possible the jury would have been satisfied that Mr Taylor had acted reasonablyin the circumstances as he believed them to be.[70] When cross-examined, Mr Chambers was unable to recall what consideration,if any, had been given to the possibility of calling Charlie to give evidence at the trial.He also could not recall whether he ever asked Mr Taylor about calling Charlie.Similarly, Mr Leabourn could not recall why Charlie was not called.[71] Ms Hoskin opposed the Court reading Charlie Taylor's affidavit on the basisthat it was not fresh, or sufficiently credible and cogent, applying the approach of thePrivy Council in Lundy v R.16[72] In cases where it is alleged that relevant evidence was not called because ofcounsel error, the question of whether the evidence is fresh may not be determined onthe usual basis of asking whether or not the evidence was known at the time of the trialand could with reasonable diligence have been called. As this Court observed inLoffley v R in such case the appellate Court will treat the evidence as fresh even if itwas known to be available at the time of the trial, if persuaded that counsel error is thereason it was not called.17[73] On that basis the real questions for present purposes relate to credibility andcogency. The difficulty that the appellant faces in this respect is that Charlie Taylorgave a statement to the police in which he described himself as having been "too drunkto fight", and not knowing what happened. He said he was unable to give any detail,having got a "crack on the head" and not remembering any fight. Ms Hoskin alsoreferred to his statements in which he asked what had happened, said he hoped andthought he "didn't do it", and stated "I truly don't know what happened. You couldtell me that I stabbed someone and I would go 'yeah"'. When it was put to him thathe might have been involved in the fight but be unable to recollect given how muchhe had had to drink, he replied "I honestly don't know, how come I'm not black andblue then? I wouldn't have a clue, I didn't know there was a fight". Charlie's16 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [116]–[126].17 Loffley v R [2013] NZCA 579 at [58].statements would have been available on disclosure. They stand in sharp contrast tothe detail he now purports to give, many years after the event.[74] Ms Gray also complains that evidence about Charlie's statements was given atthe trial, in Charlie's absence, by the officer in charge. She submitted this wasinadmissible hearsay, and damaged the defence because of the absence of details aboutthe attack. However, for present purposes the question is whether the fact counsel didnot call Charlie to give evidence was an error that might have given rise to amiscarriage of justice. We are satisfied that cannot have been the case. The statementshe made to the police at the time would have provided fertile ground forcross-examination challenging his apparently recovered memory of what took place ifhe had given evidence along the lines of the affidavit now provided.[75] Even if the statements in his affidavit are taken at face value, it may be notedthat Charlie did not see the stabbing occur. The jury already had a substantial amountof evidence, from numerous eyewitnesses about the nature and seriousness of the fightthat broke out. We are not persuaded that not calling Charlie was an error, let aloneone capable of affecting the outcome of the trial. Given our concerns as to thecredibility and cogency of Charlie's evidence, we decline to admit it as freshevidence.18Counsel error — summary[76] In the result, we have not been persuaded that any of the issues raised byMs Gray demonstrate there was a miscarriage of justice as a result of counsel error.Prosecutor's closing address[77] The final issue raised concerns the reference made by the prosecutor in closingto Mr Taylor's previous occupation as a "boner". The prosecutor told the jury thatamong the factors that they might take into account was what he described as the"weapon of choice". He continued:18 Court of Appeal (Criminal) Rules 2001, r 12B. a boning knife, which the accused is undoubtedly proficient in handling,given that he was a boner for a period of time. Clearly, such a weapon can bea lethal weapon if used in the manner that the accused chose to use it.[78] Ms Gray submitted the Crown should not have referred to Mr Taylor's previousoccupation as a boner, it was highly prejudicial to do so and had no relevance to theissue of murderous intent. She noted that it was not in dispute that Mr Taylor had usedthe knife to inflict wounds. However, his experience as a meat boner played no rolein that. The wounds were not meticulously inflicted, and there was no medicalevidence to suggest that any technical expertise had been deployed in delivering thewounds. Any person in the same situation would have been able to deliver the samelethal blows with the knife in question.[79] Ms Gray suggested the comment was highly prejudicial, because it conveyedto the jury that the knife wounds were intentionally inflicted in the way that theappellant must have known would have caused death. Such an assertion was notsupported by the evidence.[80] In response, Ms Hoskin pointed out that Mr Taylor's previous occupation as amutton boner was before the jury, because it had been mentioned in the policeinterviews, when Mr Taylor acknowledged that the murder weapon was a muttonboning knife. The interviewer put it to him that he "must have known when [he]picked up the knife something like that would cause a lot of damage". Asked whetherit was sharp, he responded that it was a "[b]oning knife I use it for meat".Ms Hoskin maintained the comment was both accurate and appropriate. She disputedthat it conveyed to the jury that Mr Taylor intentionally inflicted fatal wounds andsubmitted that the observation had simply recorded it a matter of fact, in unemotiveand unexaggerated terms, that the appellant had a degree of familiarity with theweapon used. This was entirely legitimate.[81] The remark is taken from typed notes which counsel used for his closingaddress. There is no actual transcript of what he said to the jury. We deal with theissue on the basis that he did use these words, or something similar.[82] We consider it would have been better had the prosecutor not used the wordsin question. However, the jury was entitled to infer from Mr Taylor's video interviewthat he would have been aware that the knife was sharp and capable of inflictingserious wounds. We have already noted that the fatal wounds were respectively10 and 13 cm deep. In the case of one victim the stab wound pierced his heart; in thecase of the other, it pierced his liver.[83] Obviously, those wounds would have been the result of the knife beingdeployed with considerable force. Mr Taylor's interview was sufficient to establishthat he must have known the knife was sharp. We consider those essential facts wouldhave been what influenced the jury, rather than any extraneous reference by theprosecutor to Mr Taylor's former occupation. It would have been better had theprosecutor not referred to that, but we are not persuaded that this was an irregularitythat could have led to a miscarriage.Result[84] The notice of abandonment of the appeal is set aside.[85] The application to adduce the evidence of Charlie Taylor in support of theappeal is declined.[86] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent