JUDGMENT OF THE COURT

A Mr Fraser’s appeal against conviction is dismissed.
B Mr Selby’s appeal against conviction and sentence is dismissed.
CName suppression for both accused to lapse upon the date of issue of this judgment.

____________________________________________________________________
REASONS OF THE COURT
(Given by Venning J)
Para No
Introduction   [1]
Background   [3]
Mr Fraser’s appeal against conviction  [13]
Mr Selby’s appeal against conviction  [21]
Intoxication  [22]
Provocation  [42]
Provocation and revival  [64]
Severance  [73]
The juror issue  [78]
The majority verdict  [82]
Sentence appeal  [86]
Suppression  [90]
Introduction
[1]        Following a jury trial in the High Court at Auckland Mr Selby was found guilty of murder and Mr Fraser guilty of manslaughter. Asher J sentenced Mr Selby to life imprisonment with a minimum non-parole period of 11 years and Mr Fraser to six years’ imprisonment.
[2]        Mr Selby appeals against conviction and the imposition of the 11 year minimum non-parole period. Mr Fraser appeals against conviction.
Background
[3]        We take the facts as found by Asher J for sentencing purposes. At the time of offending both Mr Selby and Mr Fraser were 18 years old. They had spent the evening of 7 December 2007 at an eighteenth birthday party in Howick. At about midnight they had left the party and were walking along Ridge Road onto Mellons Bay Road on the way to Mr Fraser’s home. They came across a number of partygoers congregated on the footpath outside 112 Mellon’s Bay Road. This was about 700 metres from Mr Fraser’s home. Included in that group were the deceased Darryl Graydon and his friend Campbell Sussex. Mr Graydon and Mr Sussex were about 24 years of age.
[4]        As Mr Selby and Mr Fraser passed through the group, words were exchanged. The exchange became heated. Mr Graydon became agitated. He followed them and punched Mr Selby in the face. At that time there was no suggestion that Mr Selby had physically done anything to Mr Graydon or others in the group. The punch did not knock Mr Selby down or leave him with any particular marks. Mr Graydon was pulled away from the altercation by others, including Mr Sussex.
[5]        Mr Selby and Mr Fraser then carried on to Mr Fraser’s home. Once there they took three knives from the kitchen. Mr Selby removed his coloured polo tee-shirt and dress shoes and replaced them with a white tee-shirt and sports shoes. Both then proceeded back up Mellons Bay Road carrying the three knives. The knives had blades of approximately 11 centimetres in length.
[6]        The appellants walked past where the earlier altercation had taken place at 112 Mellons…

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 Fraser v R

Details

AGLC: Fraser v R [2010] NZCA 313
Case: [2010] NZCA 313
Decision Date: 20 July 2010

CaseChat Overview and Summary

Daryl Lee Fraser and Sean Ian Te Hira Selby were convicted by a jury in the High Court of New Zealand for their involvement in a stabbing incident that resulted in the death of Darryl Graydon. Fraser was found guilty of manslaughter, and Selby was found guilty of murder. Both appellants appealed against their convictions and sentences. The Court of Appeal dismissed both appeals. The Court held that Fraser's appeal against conviction was misconceived, as the trial judge's direction to the jury regarding parties to murder was correct. The Court rejected Selby's grounds of appeal, which included claims that the trial judge's direction on the effect of intoxication was inadequate, that provocation should have been left to the jury, and that there were issues with the juror, severance, and majority verdict. The Court also dismissed Selby's appeal against sentence, finding that the 11-year minimum non-parole period was not manifestly excessive. Finally, the Court ruled that the name suppression for both appellants should lapse upon the issue of the judgment.

Orders