FORD TEARIKIWAI HUKA TAYLOR v R [2021] NZCA 449

FORD TEARIKIWAI HUKA TAYLOR v R [2021] NZCA 449 [8 September 2021]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYSECTIONS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA732/2020[2021] NZCA 449BETWEEN FORD TEARIKIWAI HUKA TAYLORAppellantAND THE QUEENRespondentHearing: 21 July 2021Further submissions 24 August 2021Court: Miller, Thomas and Wylie JJCounsel: E J Forster and N A Neumegen for AppellantM J Lillico and AHN Forward-Taua for RespondentJudgment: 8 September 2021 at 3.30 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] Mr Taylor was found guilty at trial on two charges of indecently assaulting achild and two of attempted sexual violation. He appeals his conviction, sayingprincipally that his trial was unfair because the social distancing regime in thecourtroom precluded half the jury from observing him in the dock as the evidence wasgiven.1 The jury asked that seating be rearranged so they could observe him, but theJudge declined on the ground that it was not feasible.The allegations[2] The Crown case was that the complainant, who was aged between four and sixyears at the time, would accompany her mother to visit the appellant's mother,Opal Taylor. The appellant lived with his mother. It is said that the complainant wouldgo to the back of the house, where the appellant had his room, and he would sit her onhis lap in front of his computer and play pornographic videos featuring older men andyoung girls. He would ask her if she wanted to do the things depicted on the videos.He would ask her to touch his penis and would force her hand onto it, and he attemptedto have her engage in oral sex.[3] Two of the charges concerned a specific incident after a baby shower. TheCrown alleged that the complainant and her mother dropped Opal Taylor at her homeand entered the house, where the appellant took the opportunity to offend against thecomplainant.[4] The appellant denied that any of this happened, and specifically denied that thecomplainant and her mother entered the house after the baby shower.The trial[5] The trial took place before Judge Mackintosh and a jury at Napier, beginningon 14 September 2020. At that time New Zealand was subject to COVID-19 AlertLevel 2. Under a practice note issued by the Chief Judge, the District Court followedsocial distancing guidelines in courtrooms and court precincts.2 The courtroom wasset up to comply with these guidelines.[6] The complainant gave evidence by AVL, viewed by the jury on a screen in thecourtroom. Her evidence-in-chief was pre-recorded. Her mother also gave evidence,1 An appeal against sentence was abandoned.2 District Court of New Zealand "District Court Protocol: COVID-19 Alert Level 2" (current as to5 March 2021) District Courts of New Zealand <www.districtcourts.govt.nz >.deposing to opportunity and the complainant's disclosure to her. The complainant'sstepfather also gave evidence of disclosures. The appellant had undergone anevidential interview with the police, but he did not give evidence. He called hismother, Opal Taylor.[7] During the evidence-in-chief of the complainant, the jury told the Judge thatthey wanted to see the appellant so they could observe his reaction to the evidence.The question was asked because the jury had been arrayed about the courtroom tomeet social distancing requirements. Half of them were in the jury box along one sideof the courtroom, from which they could see the appellant at the rear of the courtroomand the AVL screen on the opposite wall. The remaining six were on the opposite sideof the courtroom. It appears they had to turn to see the screen, and while doing so theymust have had their backs to the appellant. It is evident from the Judge's remarks thatthat they could not simultaneously watch the screen and observe the appellant. Shetold the jury that the seating arrangements could not be changed, saying that "[w]e'reall just having to battle with COVID-19 and do the best we can, so this is the way thatit's going to be handled".[8] The complainant's mother deposed that when she and the complainant droveMs Taylor home after the baby shower, she and the complainant went into the house,creating an opportunity for the appellant to offend against the complainant. There wasa conflict of evidence between the complainant's mother and Ms Taylor on this point,the latter saying that the complainant and her mother never left the car.[9] The complainant's mother volunteered in evidence that Ms Taylor had been tojail. There had been an understanding that Ms Taylor's conviction would not be ledin evidence, but as the Judge recorded, the complainant's mother "could not helpherself".3 The Judge immediately told the jury the evidence was not relevant. Shedeclined a defence application for a mistrial, reasoning that the risk of prejudice couldbe met by a direction that the jury must put the evidence to one side.[10] Ms Taylor had indeed been to jail, after being convicted of a substantial fraudagainst the Hastings District Council. An online search of her name would quickly3 R v Taylor [2020] NZDC 18589 at [1].lead to the story of that offending. There is evidence from trial counsel that two jurorswere seen to glare at Ms Taylor when they returned to Court to deliver their verdictsthe following day.[11] The complainant's stepfather also gave evidence of disclosures, as notedabove. He too was keen to offer his opinion of the appellant, saying he was "weird"because at his age, 44, he was still living at home with his mother.[12] Summing up, the Judge cautioned the jury against prejudice and specificallydirected them to disregard the evidence about Ms Taylor and attributes of thedefendant:[29] The defence case is that he did not commit these offences andessentially that the complainant's evidence is not credible, not reliable andcertainly does not amount to proof beyond reasonable doubt. We have heardevidence from the defendant's mother, Opal Taylor, and you will recall thatthere was some suggestion during the cross-examination of one of the otherwitnesses that she had been to jail at some point. This, in fact, is irrelevant tothis case and I ask you to put that to one side. There were also some sort ofpersonal comments made in relation to the attributes or not of the defendant.Those matters also should be put to one side. What you have to do is decideon the evidence in this case whether or not the Crown can prove its case.[13] The jury returned guilty verdicts on all four charges.Jury seating arrangements and a defendant's non-testimonial demeanour[14] In modern practice, rules of procedure and evidence circumscribe what juriesmay take into account when deciding a defendant's guilt. They are invariably told thatthey must decide the case on the evidence they heard in the courtroom. Evidence ofthe defendant's character may only be led if it is admissible under the veracity orpropensity rules.4 Juries may take witness demeanour into account as part of theevidence, but they are usually (though not invariably) cautioned that demeanour maybe an unreliable guide to witness reliability.54 See Gharbal v R [2010] NZCA 45 at [17]; and Wi v R [2009] NZSC 121, [2010] 2 NZLR 11.5 Taniwha v R [2016] NZSC 123, [2017] 1 NZLR 116 at [43].[15] Non-testimonial demeanour is not treated as evidence offered by either party,but the defendant is both entitled6 and obliged7 to attend the trial and no rule expresslyprohibits juries from relying on non-testimonial demeanour in the courtroom. It is leftto the discretion of trial judges whether to caution against reliance on a defendant'snon-testimonial demeanour.8 Directions are not commonly given unless the defendantmisbehaves9 or the Judge has been made aware that the defendant suffers from somemental condition or attribute of personality that might make them appear hostile orunsympathetic. By way of example, in R v Merritt the trial Judge directed the jury notto rely on the courtroom affect of the defendant, who had Autism Spectrum Disorder.10[16] Academic literature suggests that juries do pay attention to defendant'snon-testimonial demeanour.11 The unorthodox seating arrangements at trial in thiscase have generated evidence of this behaviour, in the form of the jury's request thatthey be seated so they could watch Mr Taylor's reaction to the complainant's evidence.[17] The first question is whether the Judge's inability to accommodate the jury'srequest made the trial unfair. Logically, that could be so if the appellant was deprivedof a right to give "evidence" in the form of his nonverbal responses to the complainant,or perhaps to convey an impression of steadfast good character in the face of herallegations. We called for further submissions on this point after the hearing.Mr Forster obtained an opinion from Professor Kris Gledhill, who supplied usefulmaterial.[18] The inquiry must look first to the relevant legislation: the New Zealand Bill ofRights Act 1990 (BORA) and the Criminal Procedure Act 2011. BORA provides thata defendant's rights to a minimum standard of criminal procedure include the rights"to be present at the trial and to present a defence",12 "to examine the witnesses for6 Criminal Procedure Act 2011, s 117; and New Zealand Bill of Rights Act 1990, s 25(e).7 Criminal Procedure Act, s 118.8 Taniwha v R, above n 5, at [43].9 See for example Tully v R [2020] NZCA 690 at [72].10 The defendant had given a video interview which was in evidence. The directions are recorded inthe judgment of this Court on appeal: Merritt v R [2018] NZCA 610 at [31]–[32].11 Laurie L Levenson "Courtroom Demeanor: The Theatre of the Courtroom" [2008] Minn L Rev573. Mr Forster drew our attention to James P Timony "Demeanor Credibility" (2000) 49 Cath UL Rev 903, but while instructive, that article was concerned with witness demeanour.12 Section 25(e).the prosecution" and to call witnesses,13 and the right "not to be compelled to be awitness or to confess guilt".14 The Criminal Procedure Act provides that a defendantmust be present at trial, which can proceed in absentia only if the defendant fails toappear15 or misbehaves.16[19] These provisions themselves suggest that non-testimonial demeanour cannotbe considered evidence. If it were otherwise it would be difficult to reconcile the rightand obligation to be present with the right not to be compelled to give evidence.Demeanour has been taken to encompass dress, attitude, behaviour, manner, tone ofvoice, facial expressions, gestures and appearance; in short, everything about thewitness that does not appear in the transcript of evidence.17 It has also been describedmore narrowly as a package of facial expressions, bodily movements and vocalcharacteristics which are normally sub-conscious.18 What matters for our purpose isthat it cannot be considered entirely voluntary.[20] The legislation does not refer to a right to confront witnesses in the presenceof the jury. This Court so held in R v Accused,19 speaking of the former s 376 of theCrimes Act 1961,20 and it remains the position under BORA. Section 25 provides thata defendant has the right to challenge witnesses for the prosecution by examiningthem. The legislation does not speak of a right to confront witnesses face-to-face sothe jury can gauge the witnesses' demeanour, still less that of the defendant.[21] In R v Accused the question was whether the complainant could give evidencefrom behind a screen. She was visible to the jury but she and the defendant could not13 Section 25(f).14 Section 25(d).15 Criminal Procedure Act, s 122.16 Section 118(2)(b).17 Timony, above n 11, at 907, citing inter alia the judgment of Judge Learned Hand in Dyer vMacDougall 201 F 2d 265 (2d Cir 1952). In Taniwha v R, above n 5, at [28] the Supreme Courtcited a similarly broad definition offered by Lord Bingham in an extrajudicial address: LordBingham "Assessing Contentious Eyewitness Evidence: A Judicial View" in Antony Heaton-Armstrong and others (eds) Witness Testimony, Psychological, Investigative and EvidentialPerspectives (Oxford University Press, Oxford, 2006) at [18.2].18 Robert Fisher "The Demeanour Fallacy" [2014] NZ L Rev 575 at 577, quoted with approval inTaniwha v R, above n 5, at [28]–[29].19 R v Accused (T4/88) [1989] 1 NZLR 660 (CA) at 670 per McMullin J.20 That section entitled the accused to be present in Court during trial unless the accused disruptedproceedings.see one another.21 The Court contrasted s 376 with the right "to be confronted withthe witnesses against him" that is found in the Sixth Amendment to the USConstitution.22 The Court noted that in Mattox v United States the US Supreme Courthad said that:23The primary object of the constitutional provision in question was to preventdepositions or ex parte affidavits, such as were sometimes admitted in civilcases, being used against the prisoner in lieu of a personal examination andcross-examination of the witness in which the accused has an opportunity, notonly of testing the recollection and sifting the conscience of the witness, butof compelling him to stand face to face with the jury in order that they maylook at him, and judge by his demeanor upon the stand and the manner inwhich he gives his testimony whether he is worthy of belief.As this Court noted, the confrontation envisaged was intended to allow the jury togauge the demeanour of the witness, not that of the defendant.24[22] Later New Zealand authorities sometimes speak of a right to "confront"witnesses, but they do not envisage a face-to-face confrontation. They refer rather tothe right to examine prosecution witnesses and call defence witnesses.25[23] The right to be present has consistently been justified not because the jury mustsee the defendant but because the defendant must be able to hear the prosecution caseand have the opportunity of answering it.26 The 1916 decision of the English Court ofCriminal Appeal in R v Lee Kun is usually cited for that proposition.27 In Kunnath vThe State, Lord Jauncey said for the Privy Council that:2821 Such arrangements are now expressly authorised under the Evidence Act 2006, s 105(1)(a)(i).22 R v Accused, above n 19, at 664–665 per Cooke J and at 669–670 per McMullin J23 Mattox v United States 156 US 237 (1895) at 242–243. This statement was referenced in R vAccused, above n 19, at 664–665. The majority judgment, however, cites United States v Cook 17Wall (84 US) 168, evidently in error. It is we think clear that the Court meant to refer to Mattox.24 At 664–665. This Court in R v Accused also referred to subsequent United States caselawextending the right to a face-to-face confrontation; we need not discuss them because we are hereconcerned not with confrontation between a defendant and a witness but with whether the casesestablish a right to have the jury consider the defendant's non-testimonial demeanour.25 See for example R v Wong HC Auckland CRI-2005-004-15296, 17 May 2006 at [51]–[53], quotingPaul Rishworth and others The New Zealand Bill of Rights (Oxford University Press, Oxford,2003) at 699–702 and Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: ACommentary (LexisNexis, Wellington, 2005) at [23.8.17]–[23.8.18].26 By contrast, the right to self-represent is justified as a dignitary right or expression of autonomy:R v Cumming [2006] 2 NZLR 597 (CA) at [42]; Fahey v R [2017] NZCA 596, [2018] 2 NZLR392 at [43]; and Faretta v California 422 US 806 (1975) at 834–835.27 R v Lee Kun [1916] 1 KB 337 (Crim App) at 341.28 Kunnath v The State [1993] 1 WLR 1315 (PC) at 1319.It is an essential principle of the criminal law that a trial for an indictableoffence should be conducted in the presence of the defendant As theirLordships have already recorded, the basis of this principle is not simply thatthere should be corporeal presence but that the defendant, by reason of hispresence, should be able to understand the proceedings and decide whatwitnesses he wishes to call, whether or not to give evidence and, if so, uponwhat matters relevant to the case against him The right does not exist solely for the benefit of the defendant, for it is in the publicinterest that trials should be as free from error as reasonably possible.29[24] In his concurring judgment in R v Accused, McMullin J responded to theargument that the defendant was entitled to a face-to-face confrontation with hisdaughter, whom he was said to have abused, saying that:30There is a short answer to that contention. It is that unlike the SixthAmendment, s 376 gives, as the common law before it gave, an accused persononly a right to be present at his trial, which is not necessarily a right toconfrontation. As Cardozo J said in delivering the judgment of the majorityin Synder v Massachusetts 291 US 97 (1934), at p 107:"Confusion of thought will result if we fail to mark the distinctionbetween requirements in respect of presence that have their source inthe common law, and requirements that have their source, eitherexpressly or by implication, in the federal constitution. Confusionwill result against if the privilege of presence be identified with theprivilege of confrontation, which is limited to the stages of the trialwhen there are witnesses to be questioned."That is not to ignore that confrontation may be a part of presence but to theextent that it is not synonymous with presence it is not something which anaccused is entitled to as of right under s 376. None of the reported Englishcases mention confrontation nor is it given as the reason why an accused isentitled to be present at his trial.[25] As McMullin J stated in that passage, it does not appear that the common lawrecognised a right to confront witnesses face-to-face either. Nor does it seem that itrecognised a right to do so in order that the jury might gauge the defendant'sdemeanour during such confrontation, though it seems very likely that at one timejurors did so in practice. Trial by jury once took the form of an altercation betweenthe prosecutor and the self-represented defendant, before jurors who may have beenchosen for their knowledge of something relevant to the case and whose role might be29 R v Jones [2002] UKHL5, [2002] 2 WLR 524 at [37], citing R v Bertrand (1867) LR 1 PC 520(JC) at 534 and R v Abrahams (1895) 21 VLR 343 (SC).30 R v Accused, above n 19, at 670.to some extent inquisitorial.31 What matters for present purposes is that in the modernform of jury trial — in which the defendant is represented and frequently silent, thejury are selected for their independence, and a clear distinction is drawn betweenevidence and argument — the common law authorities do not suggest the defendant'spresence was required so the jury might gauge their non-testimonial demeanour.[26] Consistent with that view of the law, New Zealand courtrooms have long beendesigned so the jury may see the defendant and the witness, but not necessarily bothof them at the same time. The witness is usually near the head of the courtroom,adjacent to the bench, and the defendant at the rear, in the dock.[27] Professor Gledhill suggested that the appellant's ability to instruct counsel mayhave been compromised, reasoning that he could no more see the jury than they couldsee him. There is no reason to suppose, though, that the jury's demeanour during thecomplainant's evidence might have affected his ability to understand the proceedingsand make decisions about calling or giving evidence. The likely impact of thecomplainant's evidence on the jury must have been obvious to him and to his counsel.[28] Finally, Professor Gledhill pointed out that a juror who is disabled throughvisual impairment may be found incapable of serving,32 but the important point is thatsuch a juror is not presumptively incapable. Incapacity is a question of the juror'spractical ability to participate effectively having regard to the nature of the trial andany arrangements the court can make to accommodate them. Put another way, theJuries Act 1981 does not presume that every juror must be able to see the defendant.[29] We conclude that Mr Taylor did not have the right to have the jury observe hisnon-testimonial demeanour while the complainant gave evidence. That conclusiondisposes of the first question: whether his trial was unfair for purposes of s 232 of the31 Frederick Pollock and F W Maitland The History of English Law (2nd ed, Cambridge UniversityPress, Cambridge, 1898) vol 2 at 621–630; John H Langbein The Origins of Adversary CriminalTrial (Oxford University Press, Oxford, 2003) at 64–65. For a general discussion of the historyof live testimony in trials, see Timony, above n 11, at 916–918. The history of the common lawis complex and contestable, as Justice Blackmun observed in his dissenting judgment inFaretta v California, above n 26.32 Juries Act 1981, s 16AA, permitting a Judge to cancel the summons of a prospective juror who isnot capable of acting effectively as a juror due to a disability. Disability includes a visual or auralimpairment: see s 2(1) definition of "disability".Criminal Procedure Act. In the absence of a right, the trial could not possibly becharacterised as so irregular or error-affected as to warrant setting aside theconvictions without further inquiry.33[30] The second question is whether the lost opportunity to have the jury considerMr Taylor's non-testimonial demeanour was an error, irregularity or occurrence thatcreated a real risk that the outcome was affected. The jury wanted to observe him, butthere is no basis on which we might possibly conclude he was disadvantaged becausethey could not. We observe that there are suggestions in the literature that in thecircumstances of a trial, demeanour is more likely to count against a defendant than tohelp.34[31] For that reason, it is arguable that juries ought to be directed as a matter ofcourse to ignore non-testimonial demeanour. However, we are not called on toestablish such a rule here and we did not hear argument on the point. Defence counselmay sometimes consider the defendant's demeanour an asset. Nor was a specificdirection required in the circumstances. It is not suggested that Mr Taylor'sdemeanour was so unusual as to create a risk of prejudice against him, and the Judgehad warned the jury to disregard the unsolicited evidence about his personal attributes.The inadmissible evidence[32] We accept Mr Forster's submission that Ms Taylor was an important witnessfor the defence. If accepted by the jury, her evidence would establish that thecomplainant's evidence about two of the charges could not be correct and raise a doubtabout the complainant's reliability generally. The evidence that she had been to jailwas inadmissible. The tenor of the transcript suggests the complainant's mothervolunteered it in a gratuitous and obvious attempt to prejudice the jury againstMs Taylor.[33] We are not persuaded, however, that there is a real risk that the irregularityaffected the outcome. The Judge responded at once, and again in her summing-up,33 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [34]–[40].34 Levenson, above n 11, at 616 n 233; and David Tait "Glass Cages in the Dock? Presenting theDefendant to the Jury" (2011) 86(2) Chi-Kent L Rev 467.and there is no reason to think the jury failed to follow her directions. An appellatecourt does not lightly interfere with the exercise of a trial judge's discretion to declarea mistrial, or not, in circumstances such as these, and we see no reason to do so here.35[34] The stepfather's opinion about the appellant was inadmissible, but not capablein our view of affecting the outcome, and it too was met with an appropriate directionfrom the Judge.Result[35] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent35 R v Thompson [2006] 2 NZLR 577 (SC) at [16].