| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA114/2019 [2020] NZCA 301 |
| BETWEEN | MICHAEL SAM TORRINGTON |
| AND | THE QUEEN |
| Hearing: | 17 June 2020 |
Court: | Courtney, Brewer and Hinton JJ |
Counsel: | N M Dutch for Appellant |
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…
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- AGLC
- Torrington v The Queen [2020] NZCA 301
- Case
- [2020] NZCA 301
- Decision Date
CaseChat Overview and Summary
Final orders: The appeal against conviction is dismissed. The appeal against sentence 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
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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