Griffin v The the King

[2022] NZHC 2686

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI 2022-485-40

[2022] NZHC 2686

UNDER

Part 6 of the Criminal Procedure Act 2011

IN THE MATTER OF

a first appeal against conviction

BETWEEN

SAMUEL GRIFFIN

Appellant

AND

THE KING

Respondent

On the papers
Counsel:	H G de Groot and E Blincoe for Appellant K L Kensington for Respondent
Judgment:	17 October 2022

JUDGMENT OF MALLON J (No 2)

Introduction

[1]    The appellant was convicted on a charge of strangulation1 and a charge of assault of a person in a family relationship2 following a judge alone trial in the District Court.3 He appealed these convictions to the High Court on the basis that a miscarriage of justice had occurred.

1      Crimes Act 1961, s 189A(b).

2      Section 194A.

3      R v Griffin [2021] NZDC 3533 [Judge I G Mill]. He was discharged on another charge of assault of a person in a family relationship. He was subsequently sentenced to one year’s supervision and 80 hours of community work.

GRIFFIN v R [2022] NZHC 2686 [17 October 2022]

[2]    In my judgment of 12 September 20224 I allowed the appeal against conviction on the strangulation charge and quashed the conviction on that charge.5 I dismissed the appeal against the remaining assault charge.6

[3]    In my judgment I noted that the parties did not make submissions about the sentence for the remaining assault charge in the event that I quashed the strangulation charge but upheld the assault conviction. I requested submissions from the parties on the appropriate course.7 Specifically, whether the proceeding should be remitted back to the District Court to resentence the appellant or whether, if the parties were agreed on an appropriate adjustment to that sentence, I should substitute an appropriate sentence pursuant to s 236 of the Criminal Procedure Act 2011.

[4]    I have since received submissions from the parties. The Crown submissions are primarily about whether a retrial should be ordered. My findings on the strangulation charge were that the Judge’s reasons were insufficient for finding the mens rea for that charge was established; and the mens rea finding was not open to the Judge on the evidence.8 Although I did not say so explicitly, my findings meant that the appellant was to be acquitted on the strangulation charge. It was not open to the Judge to convict the appellant on the evidence. It would not be in the interests of justice to order a retrial. I now specifically direct an acquittal on that charge.9

[5]    The defence proposes that the sentence imposed on the strangulation and assault charges be quashed and Mr Griffin should be convicted and discharged on the assault charge, or alternatively ordered to come up for sentence if called upon within six months. I favour the former, but allow the Crown a further opportunity to advise if it agrees with that sentence or considers another sentence is appropriate. The Crown has seven days to respond.

4      Griffin v R [2022] NZHC 2325.

5      Criminal Procedure Act 2011, s 233(2).

6      Griffin v R, above n 4, at [79].

7      At [80]–[81].

8      At [44] and [49].

9      Criminal Procedure Act, s 233(3)(a).

[6]    It would be ideal if remitting this matter back to the District Court for resentencing on the assault charge can be avoided when the assault is not of a particularly serious kind.

Mallon J