Garriock v The King - [2024] NZCA 642

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA661/2023
[2024] NZCA 642

BETWEEN	ROBERT WILLIAMSON GARRIOCK Appellant
AND	THE KING Respondent

Hearing:	7 November 2024
Court:	Cooke, Fitzgerald and Jagose JJ
Counsel:	A M S Williams and K N Stitely for Appellant P N M Brown for Respondent
Judgment:	4 December 2024 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooke J)

The appellant, Mr Garriock, was found guilty of causing grievous bodily harm with intent to cause grievous bodily harm along with his co-defendants, Mr Matenga and Ms Garriock, following a jury trial.[1] He now appeals against his conviction on the basis that Mr Matenga’s counsel engaged in an illegitimate demonstration during his closing address which caused Mr Garriock prejudice such that a miscarriage of justice occurred.[2]

The offending

[1]R v Garriock [2023] NZDC 22547.

[2]Criminal Procedure Act 2011, s 232(2)(c).

The three defendants planned to ambush the victim to give him “a hiding”. Ms Garriock lured the victim, her ex-partner, to her address on the pretence of hanging out. Nobody answered the door but the victim saw a male holding a hammer. When the victim then went to leave, Mr Garriock came out of the bushes and attacked him, punching him multiple times in the head. The victim punched back and Mr Garriock and the victim ended up on the ground. While on the ground, Mr Garriock was holding onto the victim’s jacket so he could not leave. Mr Matenga then joined in by hitting the victim with a hammer. Mr Garriock and Mr Matenga continued to punch, kick, and hit the victim with the hammer resulting in a fractured jaw and multiple bruises over his head and body.
At trial, the victim gave evidence about the hammer being used, describing that it felt differently to the punches and kicks and caused him extreme pain. He said that the circular marks that could be seen on his body were caused by the hammer. The victim told the 111 call operator and police at the scene that he had been attacked with a hammer. The photographs of his injuries supported his account, but there was no expert evidence about the type of injuries a hammer would cause. No hammer was recovered by police.
An aspect of Mr Garriock’s defence was that there was no hammer involved in the assault. Mr Matenga denied participating at all, and he also did not accept a hammer was involved. The victim’s account did not suggest that it was Mr Garriock that had used the hammer. Neither was it contended that Mr Garriock knew that a hammer would be used.
Closing addresses were made to the jury on 5 May 2024. After the Crown and counsel for Mr Garriock gave their closing addresses, counsel for Mr Matenga then closed. Much to the surprise of everybody, during his closing he produced a hammer which he slammed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Garriock v The King

Details

AGLC: Garriock v The King [2024] NZCA 642
Case: [2024] NZCA 642
Decision Date: 4 December 2024 at 2.30 pm

CaseChat Overview and Summary

Mr Garriock appeals against his conviction of causing grievous bodily harm with intent to cause grievous bodily harm. He submits that a miscarriage of justice occurred because counsel for Mr Matenga made an illegitimate demonstration during his closing address. The appeal is dismissed. The Court found that the demonstration by counsel for Mr Matenga was improper, as the hammer used was not part of the evidence, and the demonstration constituted a form of expert evidence that could only be introduced in accordance with the requirements of the Evidence Act 2006. However, the Court found that this irregularity did not give rise to a miscarriage of justice. The evidence against all defendants was strong and depended on the victim's evidence. The Court accepted that the Judge’s prompt instruction to the jury to disregard the demonstration, and his reiteration of the point in his summing up, sufficiently addressed any potential prejudice arising from the demonstration, and ensured that the trial was a fair one. The appeal against conviction is dismissed.

Orders