Torrington v The Queen - [2020] NZCA 301

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA114/2019
[2020] NZCA 301

BETWEEN	MICHAEL SAM TORRINGTON Appellant
AND	THE QUEEN Respondent

Hearing:	17 June 2020
Court:	Courtney, Brewer and Hinton JJ
Counsel:	N M Dutch for Appellant E J Hoskin for Respondent
Judgment:	20 July 2020 at 2.30 pm

JUDGMENT OF THE COURT

AThe appeal against conviction is dismissed.
BThe appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brewer J)

Introduction

Mr Torrington was found guilty by a jury of causing grievous bodily harm with intent to cause grievous bodily harm.[1] On 15 January 2019, Judge KBF Saunders sentenced Mr Torrington to 11 years and three months’ imprisonment.[2] Mr Torrington’s co‑defendant, Mr Cramond, was sentenced at the same time to 11 years and eight months’ imprisonment.[3] A minimum period of imprisonment of 50 per cent was imposed on both defendants.
[1]Crimes Act 1961, s 188(1).
[2]R v Cramond [2019] NZDC 443 [Sentencing decision].
[3]Mr Cramond was found guilty of additional and related charges of threatening to kill and attempting to pervert the course of justice.
Mr Torrington now appeals his conviction. If he is unsuccessful, he appeals his sentence.
The basis for the appeal against conviction is trial counsel error. Although Mr Dutch for Mr Torrington advances a number of submitted failures on the part of trial counsel, the main one is that trial counsel did not cross-examine a major Crown witness.
To succeed in his conviction appeal, Mr Torrington must show that a miscarriage of justice has occurred.[4] First, Mr Torrington must establish an error or errors on the part of his trial counsel. Second, he must establish that there is a real risk the error or errors may have affected the outcome of the trial or rendered it unfair or a nullity.[5]

Background

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

[5]Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [23]–[24].

On 28 August 2017, Mr Torrington lived in a house on a farm where he was employed as a farmhand. Visiting him were the complainant, Mr Lammas, and Mr Lammas’s partner, Ms Stewart. Mr Torrington’s friend, Mr Cramond, was also present.
The Crown’s case was that Ms Stewart had spent time driving about with Mr Torrington and Mr Cramond and had told them she had been assaulted by Mr Lammas earlier in their relationship. This caused Mr Torrington and Mr Cramond to decide they needed to teach Mr Lammas a lesson.
At about 7.00 pm the two men went into Mr Torrington’s house and began assaulting Mr Lammas. Mr Lammas ran from the house and headed towards the road along the farm race.
The Crown’s case was that Mr Torrington chased Mr Lammas on foot while Mr Cramond drove after him in his car.
Mr Lammas jumped into a neighbouring paddock. Mr Cramond caught up to him and resumed the assault. Mr Torrington, who was following behind, soon joined in.
Mr Lammas fell to…

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 Torrington v The Queen

Details

AGLC: Torrington v The Queen [2020] NZCA 301
Case: [2020] NZCA 301
Decision Date: 20 July 2020 at 2.30 pm

CaseChat Overview and Summary

In this case, Michael Sam Torrington was found guilty of causing grievous bodily harm with intent to cause grievous bodily harm. Torrington appealed both his conviction and sentence. The Court of Appeal of New Zealand considered the appeal against conviction, examining the trial counsel error, inadequacy of counsel's closing address, timing of a discharge application, publicity, and the Crown theory of the case. The Court found no miscarriage of justice and dismissed the appeal against conviction. The Court then considered the appeal against sentence, examining the starting point for imprisonment and the minimum period of imprisonment. The Court found that the starting point of 11 years' imprisonment and the minimum period of imprisonment were appropriate and dismissed the appeal against sentence.

Final orders: The appeal against conviction is dismissed. The appeal against sentence is dismissed.

Orders