Garriock v The King

Case [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)

  1. 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).

  1. 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.

  2. 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. 

  3. 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. 

  4. 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…

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AGLC
Garriock v The King [2024] NZCA 642
Case
[2024] NZCA 642
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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