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Daken v R

Daken v R

Case [2010] NZCA 212 4 June 2010

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA677/2009
[2010] NZCA 212
BETWEENPATRICK ALLAN DAKEN

Appellant

ANDTHE QUEEN

Respondent

Hearing:26 April 2010

Court:Baragwanath, MacKenzie and Lang JJ
Counsel:A N D Garrett and A J McKenzie for Appellant

M F Laracy and T J Mackenzie for Crown

Judgment:4 June 2010 at 10am

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Baragwanath J)
Table of Contents

Para No

CONTEXT OF APPEAL  [3]
BACKGROUND TO APPEAL  [8]
THE APPEAL AGAINST CONVICTION
THE CHALLENGED RULING AS TO APPELLANT’S ASSAULTS ON MR DAKEN SENIOR  [12]
THE DISPUTED EVIDENCE AT TRIAL  [16]
NOEL DAKEN  [19]
WARREN DAKEN  [21]
Arthur Daken  [23]
Hineari Daken  [24]

The summing up
The direction [27]

Discussion  [28]
WAS THE S 43 TEST MET?  [34]
THE DIRECTION  [42]
The broomstick evidence  [43]
Provocation  [49]
Self defence  [50]
The exclusion of evidence about the weapons and other items kept
by Kelly in the lock-up at Ferrymead  [52]
Was there miscarriage by reason of admission of so much
background evidence?  [60]
Conclusion  [63]

The sentence appeal  [64]
[1]        Patrick Allan Daken was convicted of the murder of his brother Kelly. He appeals against conviction and the sentence of life imprisonment with a minimum parole period of ten years imposed by the trial Judge, Panckhurst J.
[2]        The conviction appeal challenges:
(a)the extent of evidence introduced to show the relationships among members of the Daken family, which extended to evidence of particular episodes in which the appellant had behaved violently toward his father;
(b)the direction given by the trial Judge concerning such evidence;
(c)the direction as to self-defence; and
(d)the exclusion of evidence which the defence wished to elicit about certain weapons and other items kept by Kelly in a lockup at Ferrymead near Christchurch.

A contention that a so-called lies direction should have been given in respect of a statement made by the appellant to a police officer was abandoned.
Context of appeal
[3] The appellant is a bushman, accustomed to carry a clasp knife with a well sharpened flick-out folding blade 65mm long and 23mm wide. On 10 June 2008 he was living with his older brother Warren at the family farm at Port Levy on the northern coast of the Banks Peninsula, southeast of Christchurch. Kelly lived both at that property and at another home in Christchurch. Evidence from family members established that the brothers’ relationship was variable. They often argued and abused each other and from time to time would physically scrap. On one occasion, referred to as the “broomstick incident”, Mrs Daken Senior had used a broom to intervene in a dispute between the appellant and Kelly. At some point in the dispute the appellant drew his knife and Kelly grabbed the broomstick or its broken shaft. Eyewitnesses differed as to the sequence of events.
[4] Other evidence concerned the relationship of the appellant with his father, Noel. Shortly before his death on 10 June 2008 Kelly learned of…

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 Daken v R

Details

AGLC: Daken v R [2010] NZCA 212
Case: [2010] NZCA 212
Decision Date: 4 June 2010

CaseChat Overview and Summary

Patrick Allan Daken was convicted of the murder of his brother Kelly. He appeals against conviction and the sentence of life imprisonment with a minimum parole period of ten years imposed by the trial judge. The conviction appeal challenges the extent of evidence introduced to show the relationships among members of the Daken family, which extended to evidence of particular episodes in which the appellant had behaved violently toward his father. The appeal also challenges the direction given by the trial judge concerning such evidence, the direction as to self-defence, and the exclusion of evidence which the defence wished to elicit about certain weapons and other items kept by Kelly in the lock-up at Ferrymead near Christchurch. The appeal against sentence contends that the Judge erred in not departing from the presumption of life imprisonment for murder. The Court of Appeal dismissed the appeal against conviction and sentence. The Court considered that the background evidence was relevant to provide a context to assess both the deceased’s actions, and the accused’s responses at the crucial time. The Court held that the probative value of the evidence in relation to the self-defence issue outweighed the risk that it might have an unfairly prejudicial effect. The Court accepted the trial judge’s assessment that given the circumstances of the offence and the offender, a sentence of life imprisonment was not manifestly unjust.

Orders