Garriock v R [2024] NZCA 642 (4 December 2024)

Last Updated: 9 December 2024

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

• [2] 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.
• [3] 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.
• [4] 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.
• [5] 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 down on counsels’ table while addressing the jury. The written record of the closing records the following:

Collective common-sense of you all and in this case it’s that common sense which will tell you all that taking a hammer and hitting a person 17 times on [the victim’s] account, 10 of those to the head approximately tells you that a person doesn’t get off the ground. The person who’s been hit in the face with a hammer 10 times doesn’t just walk away from that. They don’t jump fences, they don’t go home, they don’t wait for an hour and then decide to call the ambulance. It’s common-sense.

Think you’ve all got the photo booklet with you? Well look take a look, page 19. This one. See you’ve got them there. The pages following as well. I mean without a doubt Mr Brewer has been injured hasn’t he? I mean that’s unquestionable, that’s hardly in dispute but are these the photos, you know is this the face of a person who’s been hit 10 times [with] a hammer? A crappy old shed hammer, one used for DIY, home improvement? Well we don’t have the hammer of course itself but one like this perhaps and this came from my garage. It’s from Bunnings you know DIY, home improvement. I think I’ve made the point. I don’t need to do that 17 times.

• [6] Counsel’s use of the hammer occurred immediately before the words “I think I’ve made the point”. We were informed at the hearing of the appeal that counsel had persuaded court security to let him bring the hammer into court as he wished to use it as part of the case.
• [7] Counsel for the Crown promptly expressed concern about these events to the Judge in chambers. Judge P R Kellar then gave an instruction to the jury in the following terms:

... I just want to talk to you briefly about [Mr Matenga’s counsel’s] production of and use of a hammer during his closing address to you. As I will tell you when I sum up to you, the lawyers make submissions to you about the facts, what they say or indeed what I say is not evidence in the case, and [Mr Matenga’s counsel’s] production of and use of the hammer is tantamount to giving, effectively, expert evidence about the use of a hammer that’s obviously a relevant issue in this trial.

So, what I will ask you to do is simply disregard the fact that he’s produced and used a hammer in that way and, of course, treat his submissions, as with the other submissions the counsel have made, just as that, they are not evidence. They are submissions on the evidence to persuade you to points of view for sure. ...

• [8] He also returned to this issue in his summing up where he said:

I also wish to repeat the direction I gave you about [counsel for Mr Matenga’s] demonstration with the hammer. You must disregard that from your consideration of the evidence.

Arguments on appeal

• [9] For Mr Garriock, Mr Williams argues that the actions by Mr Matenga’s counsel involved the introduction of evidence before the jury that had not properly been adduced at trial, contrary to the requirements emphasised by the Supreme Court in R v Stewart (Eric).^[3] He referred to the case of Brown v Police, where a Judge had agreed to participate in a demonstration of a car said to be used in offending, which involved a test to see how long it would take for the driver and passenger to exchange seats and whether that could be observed by a witness from behind the vehicle.^[4] The High Court criticised this test, including on the basis that the Judge had become a witness.^[5]
• [10] In the present case, Mr Williams suggests that the hammer demonstration gave rise to a miscarriage of justice. Counsel for Mr Matenga was effectively acting as an expert witness. Whilst counsel’s intention had been to advance the argument that it was unlikely that a hammer would have been used as the victim had said, it could have had the opposite effect. It may have given the impression there was a forceful strike with a hammer causing very serious harm consistent with what was described by the victim. It was a loud and sudden surprise to those in the room which would have made a significant impression on the jury.

Assessment

• [11] An appeal under s 232(2)(c) of the Criminal Procedure Act 2011 is advanced on the basis that there has been a miscarriage of justice. Under s 232(4), any irregularity in the conduct of the trial will give rise to a miscarriage only if it creates a real risk that the outcome of a trial was affected, or if it resulted in an unfair trial or a trial that was a nullity. This involves a two-step inquiry: was there an error, irregularity, or occurrence affecting the trial, and if so, did it lead to a risk the trial was affected, or an unfair trial or a trial that was a nullity.^[6] A real risk the outcome was affected will arise when there is a reasonable possibility a different verdict will have been reached.^[7] An error or irregularity by counsel for another defendant is approached on a similar basis as an error or irregularity by the defendant’s own counsel.^[8]
• [12] We accept there was an irregularity during the conduct of the trial. There was no hammer produced in evidence, and for counsel to produce his own hammer to show to the jury was, by itself improper. Moreover, the use of the hammer in front of the jury — which counsel suggested the jury could use to assess the evidence — involved a form of test that could only be introduced by expert evidence. So this was both an illegitimate reliance on matters that were not in evidence, and an illegitimate demonstration/experiment not introduced in accordance with the requirements of the Evidence Act 2006.
• [13] We are not satisfied, however, that these irregularities gave rise to a miscarriage of justice or an unfair trial. Whilst the demonstration would have been both loud and startling, we do not accept that it would likely have had any ultimate bearing on the jury’s deliberations one way or the other. The alleged use of the hammer, being but one element of the offending, would have been assessed by the jury based on the victim’s evidence, including his description of the pain caused to him by what he thought was a hammer, and the photographs of his injuries. The evidence against all the defendants was strong, and dependent on the evidence of the victim as supported by the other evidence. It is not suggested that the jury’s verdict was unreasonable given the totality of the evidence.^[9]
• [14] Moreover, any disadvantage that could have arisen from the demonstration was effectively neutralised by the Judge’s prompt instruction to the jury to disregard what counsel had done, and his reiteration of the point in his summing up. We consider this sufficiently addressed any potential prejudice arising from the illegitimate demonstration, and that it ensured that the trial was a fair one.
• [15] When defendants are tried together there is always a risk that the approach taken by a co-defendant may not assist a defendant’s case. But the co-defendant is entitled to conduct their defence in what they consider to be their own interests, and the Court will only interfere because of possible collateral damage to another defendant in exceptional circumstances.^[10] Here, we accept there was an irregularity in the approach taken by the co-defendant, but we do not accept it resulted in a miscarriage of justice.

Result

• [16] The appeal against conviction is dismissed.

Solicitors:
Crown Solicitor, Christchurch for Respondent

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^[1] R v Garriock [2023] NZDC 22547.

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

^[3] R v Stewart (Eric) [2009] NZSC 53, [2009] 3 NZLR 425 at [28]. See also De Thierry v R [2013] NZCA 315 at [28].

^[4] Brown v Police [2015] NZHC 2411 at [12].

^[5] At [40]–[48].

^[6] Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [24]; and Haunui v R [2020] NZSC 153, [2021] 1 NZLR 189 at [50].

^[7] Misa v R [2019] NZSC 134, [2020] 1 NZLR 85 at [48].

^[8] R v Shipton [2006] NZCA 530; [2007] 2 NZLR 218 (CA) at [60]–[69]; and R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [70].

^[9] Criminal Procedure Act, s 232(2)(a). See also R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [17].

^[10] DC (CA431/2016) v R [2017] NZCA 591 at [45], citing R v Sungsuwan, above n 8, at [70]; and R v Scurrah CA159/06, 12 September 2006 at [15].