Bracken v R

[2016] NZCA 79

IN THE COURT OF APPEAL OF NEW ZEALAND

CA785/2012
[2016] NZCA 79

BETWEEN	WAYNE JAMES BRACKEN Appellant
AND	THE QUEEN Respondent

Hearing:	9 February 2016
Court:	Miller, Fogarty and Toogood JJ
Counsel:	W C Pyke for Appellant M D Downs for Respondent
Judgment:	23 March 2016 at 10.00 am

JUDGMENT OF THE COURT

The appeal against conviction and sentence are both dismissed.

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REASONS OF THE COURT

(Given by Fogarty J)

Introduction

1. This is an appeal against conviction and sentence.  The appellant was convicted of kidnapping and murdering Mr Jack Davis, following a seven-week trial before Wylie J.  Mr Neville Dangen, a co-defendant, was acquitted.

2. When sentencing, Wylie J concluded that the appellant was acting in cold blood, the murder was “in effect, an execution”.  He applied s 104 of the Sentencing Act 2002 and imposed a minimum period of 21 years imprisonment.  The appellant appeals against the conviction and against sentence.

Against conviction

1. Mr Fairbrother QC was acting for Mr Bracken until December 2015.  Mr Bracken then changed counsel and was represented by Mr Pyke at the hearing before this Court.  Mr Pyke made arguments on all of the points set out in Mr Fairbrother’s memorandum summarising the grounds of appeal, but placed particular emphasis on two arguments:

   Propensity

   (a)He invited reconsideration of the admission of propensity evidence, given the failure of Mr Dangen to give evidence and he submitted there were legal errors on the part of Wylie J who failed, when directing on propensity evidence, to identify those errors and direct accordingly. 

   Emotive irrelevant evidence

   (b)Wylie J permitted cross-examination about irrelevant, speculative, emotive and prejudicial claims about the appellant’s state of mind: that he was “acting crazy”; claiming to be “the chosen one”, the “devil”, “dark” and “evil”; and had “one thousand spirits coming to look after him”.  These questions put to witnesses in cross‑examination were so prejudicial that the appellant’s ability to present an effective defence was compromised.

Cumulatively, Mr Pyke submitted that a miscarriage of justice had occurred.

Against sentence

1. As to sentence, Mr Pyke submitted that Wylie J double counted, and took account of an irrelevant consideration when imposing a minimum term of imprisonment, and that the term was excessive.  The appellant seeks a substituted minimum term of 19 years.

The Crown case

1. The Crown case was that the appellant and the deceased, Mr Davis, knew each other.  On 23 February 2011, Mr Davis needed a ride to Northland where he was to compete in a fishing competition based out of Whangarei.  A friend made arrangements that the appellant and his brother, Kenneth Bracken, would drive Mr Davis north.  The Bracken brothers collected Mr Davis from his home in Mangere on the morning of 23 February.  The three men drove north, collecting another brother of the appellant, Frederick, arriving at the Kaeo area in the early hours of the following day, 24 February 2011.  The group started to collect and move furniture from the appellant’s previous address in Kaeo.  Some of the furniture was…