Griffin v The the King - [2022] NZHC 2325

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 2325

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

Hearing: 16 August 2022

Counsel:

H G de Groot and E Blincoe for Appellant K L Kensington for Respondent

Judgment:

12 September 2022

JUDGMENT OF MALLON J

Table of contents

Introduction [1]

District Court [3]

The evidence [3]

The defence [16]

The Judge’s decision [17]

First appeal ground: strangulation [30]

The law [30]

This case [35]

Second appeal ground: defence of property [50]

The law [50]

This case [73]

Result [79]

GRIFFIN v R [2022] NZHC 2325 [12 September 2022]

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 appeals his convictions.

[2]He contends that a miscarriage of justice occurred because:

(a)the Judge failed to give adequate reasons for convicting the appellant and erred in his assessment that the evidence established the strangulation charge;4 and

(b)the Judge wrongly excluded the defence of property in relation to the assault on which he was convicted.5

District Court

The evidence

[3] The Crown called evidence from the victim and two police officers. The appellant elected to give evidence in his defence. The narrative of events that emerged from the evidence was as follows.

[4] The appellant, then aged 39, was in a relationship of around four or five months with the victim at the time of the events that gave rise to the charges. The victim had travelled to Wellington to stay with the appellant. The couple were staying in a central city hotel paid for by the appellant’s sister. The arrangement was that appellant would repay his sister when he received his pay later in the week. It was not in dispute, however, that the victim also intended to contribute to the cost of the room.

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.
4      Criminal Procedure Act 2011, s 232(2)(b).
5      Crimes Act, s 53.

[5] On 16 May 2021 the appellant and the victim had been drinking with some friends of the appellant. The victim said something that annoyed and upset the appellant. They left the gathering via a lift. The exact events in the lift are in dispute but, in essence, the appellant expressed his upset with the victim, the victim tried to hug the appellant to calm him, and the appellant told the victim to get off him and broke the embrace. On the appellant’s account, that was all he did. On the victim’s…

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.

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Details

Case: [2022] NZHC 2325
Decision Date: 12 September 2022

CaseChat Overview and Summary

Samuel Griffin appeals his convictions on charges of strangulation and assault of a person in a family relationship. The High Court allowed the appeal against the strangulation conviction and quashed that conviction. It dismissed the appeal against the assault conviction. The appellant submitted that the Judge failed to give adequate reasons for convicting him and erred in his assessment that the evidence established the strangulation charge. The Court found that although the Judge's findings on the actus reus were open to him, the Judge's finding of recklessness was not. The Court concluded that the conviction on this charge must be quashed. The appellant also submitted that the Judge wrongly excluded the defence of property in relation to the assault on which he was convicted. The Court considered the law of defence of property and found that the appellant was not in peaceable possession of the hotel key at the time of the assault. It concluded that the defence of property was not available to the appellant at the time of the assault. The Court dismissed the appeal against the assault conviction.

Orders