The Queen v Fraser - [2008] NZCA 68

IN THE COURT OF APPEAL OF NEW ZEALAND
CA510/2007
[2008] NZCA 68
THE QUEEN
v
DANIEL JOHN FRASER
Hearing:13 March 2008

Court:Glazebrook, Hammond and Robertson JJ
Counsel:C P Comeskey for Appellant

A Markham for Crown

Judgment:18 March 2008 at 4 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Robertson J)
Introduction
[1]       Daniel John Fraser was convicted following trial in the Whangarei High Court before Wilson J on one count of murder and one of assault with a weapon. On the former, he was sentenced to life imprisonment with a minimum non-parole period of 14 years, and on the latter convicted and discharged.
[2]       He appealed against his conviction for murder on the sole ground that the partial defence of provocation was not left to the jury despite, he says, an evidential foundation having being laid for it.
[3]       Mr Fraser also appealed against the sentence imposed on the basis that the length of the minimum non-parole period was manifestly excessive.
[4]       The Crown, in its written submissions, argued that s 104(c) of the Sentencing Act 2002 applied as the killing occurred after “unlawful entry into, or unlawful presence in a dwelling place” and there was no basis for the trial Judge’s conclusion that it would be manifestly unjust to impose a minimum period of imprisonment of at least 17 years.
[5]       Prior to the hearing, the appeal against sentence was abandoned. This course of action was clearly in the interests of the appellant as, on the basis of the test enunciated in this Court in R v Williams and Olsen [2005] 2 NZLR 506, it could not be concluded that any of the circumstances identified by the sentencing Judge could have been sufficient to justify a deviation from the Parliamentary mandate.
[6]       However, the appeal having been abandoned without opposition by the Crown, the issue was not before this Court.
Factual background
[7]       The appellant and Charmaine Cameron were, for a number of years, in a relationship from which there were two children. They separated in April 2005. Ms Cameron and the children remained in what had been the family home. She and the appellant maintained an intermittent relationship. On 6 October 2005 Ms Cameron obtained a protection order against Mr Fraser.
[8]       Notwithstanding this order, Mr Fraser still on occasion stayed at the address. On 12 December 2005 he was arrested for breaching the protection order and released on bail with conditions which prevented him from contacting Ms Cameron or their children.
[9]       The victim of the admitted homicide, Lance Hughes, was the new boyfriend of Ms Cameron.
[10]     About 8am on Christmas Day, Mr Fraser was at an adjoining property occupied by his mother when he noticed a car belonging to Mr Hughes parked on the lawn of Ms Cameron’s home. He went to the house, entered via an unlocked ranchslider door and proceeded upstairs to the bedroom. He pushed past Ms Cameron and confronted Mr…

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 The Queen v Fraser

Details

AGLC: The Queen v Fraser [2008] NZCA 68
Case: [2008] NZCA 68
Decision Date: 18 March 2008

CaseChat Overview and Summary

Daniel John Fraser appealed against his conviction for murder and the sentence imposed by the Whangarei High Court. Fraser was found guilty of murdering Lance Hughes, the new boyfriend of his former partner Charmaine Cameron, and was sentenced to life imprisonment with a minimum non-parole period of 14 years. Fraser argued that the partial defence of provocation was not left to the jury despite an evidential foundation for it, and that the length of the minimum non-parole period was manifestly excessive. The Crown argued that the sentence was appropriate as the killing occurred after "unlawful entry into, or unlawful presence in a dwelling place".

The Court of Appeal dismissed Fraser's appeal against his conviction for murder, finding that there was no credible narrative of causative provocation. The Court held that the Judge's assessment of the evidence was appropriate and that the partial defence of provocation was correctly withdrawn from the jury. The Court found that Fraser's actions and omissions throughout the intervening period between the alleged provocation and the shooting robbed the possibility of a credible narrative of validity in this particular case.

The Court of Appeal also dismissed Fraser's appeal against the sentence imposed, finding that the length of the minimum non-parole period was not manifestly excessive. The Court held that the Judge had appropriately considered the circumstances of the case and that the sentence was appropriate in the circumstances.

The appeal against conviction is dismissed. The sentence is upheld.

Orders