FORD TEARIKIWAI HUKA TAYLOR v R [2021] NZSC 178

FORD TEARIKIWAI HUKA TAYLOR v R [2021] NZSC 178 [14 December 2021]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.htmlNOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 204OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360352.htmlIN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 121/2021[2021] NZSC 178BETWEEN FORD TEARIKIWAI HUKA TAYLORApplicantAND THE QUEENRespondentCourt: William Young, Glazebrook and O'Regan JJCounsel: E J Forster for ApplicantM J Lillico and A H N Forward-Taua for RespondentJudgment: 14 December 2021JUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONS[1] Following a jury trial in Napier in September 2020, the applicant was foundguilty on four charges of sexual offending against a single child complainant. Hisappeal against conviction to the Court of Appeal was dismissed,1 and he now seeksleave to appeal to this Court.1 Taylor v R [2021] NZCA 449 (Miller, Thomas and Wylie JJ).[2] The proposed appeal raises two issues.[3] The first arises in this way. The trial was conducted in accordance withphysical distancing requirements associated with the COVID-19 pandemic. Thismeant that half the jury were in the jury box and the other half were on the oppositeside of the court room. The six jurors who were not in the jury box were not able tosee, at the same time, both the AVL screen on which the complainant appeared whilegiving evidence and the applicant. This is because, to watch the screen, they had tohave their backs to the applicant. A request was made by the jury to the Judge to alterthe seating arrangements so that all jurors could see the applicant and complainant atthe same time. The Judge, however, said that the seating arrangements could not bechanged.[4] The second relates to the applicant's mother. She was a defence witness,providing what was described as a "reverse alibi": that, at the time two of the offenceswere said to have been committed, the complainant was with her mother and thattherefore, on that occasion, the applicant did not have an opportunity to offend againstthe complainant.[5] The complainant's mother was a prosecution witness. On her evidence, therehad been an opportunity for the applicant to have committed the offences in question.In her evidence, she also volunteered the fact that the applicant's mother had been inprison. The Judge immediately told the jury that this was not relevant and laterdirected the jury to put that evidence to one side. The applicant's mother's offendinghad been in Hawke's Bay and had attracted some attention, and the details were easilyascertainable from the internet.[6] The applicant wishes to argue that the Judge was wrong in not accommodatingthe jury's request for a change in seating arrangements and likewise wrong not todischarge the jury after the disclosure by the complainant's mother that the applicant'smother had been in prison.[7] Both issues were addressed by the Court of Appeal. It concluded that theapplicant did not have a right to have all jurors seated so that they could, at the sametime, see both him and the complainant2 and that likewise there was no basis forconcluding that the seating arrangements resulted in a miscarriage of justice.3 As well,the Court was not persuaded that the Judge's decision not to abort the trial had been inerror.4[8] We are not persuaded that the arguments about the seating arrangements anddecision not to abort the trial raise arguable issues of general or public importance5and see no appearance of a miscarriage of justice.6[9] The application for leave to appeal is therefore dismissed.Solicitors:Crown Law Office, Wellington for Respondent2 At [29].3 At [30].4 At [33].5 Senior Courts Act 2016, s 74(2)(a).6 Section 74(2)(b).