Wayne James Bracken v The Queen - [2016] NZSC 124

IN THE SUPREME COURT OF NEW ZEALAND

SC 40/2016
[2016] NZSC 124

BETWEEN	WAYNE JAMES BRACKEN Applicant
AND	THE QUEEN Respondent

Court:	Glazebrook, Arnold and OʼRegan JJ
Counsel:	W C Pyke for Applicant J C Pike QC for Respondent
Judgment:	13 September 2016

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

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REASONS

Background

The applicant, Mr Wayne Bracken, was convicted on 28 September 2012 of murder and kidnapping.
The Crown case was that the applicant’s two brothers (Kenneth and Frederick) and the victim (Mr Davis) had been helping the applicant to move to a farm belonging to Mr Dangen. Afterwards they[1] stayed on to drink alcohol and consume both methamphetamine and cannabis.
[1]Apart from Frederick, who had left to go back to Whangarei.
At some stage, the applicant began threatening Mr Davis. The Crown alleged that the applicant forced his brother, Kenneth, to tie Mr Davis up. He was then left “hog tied” in the shearing shed, secured to a rail or board. The following afternoon the applicant returned to the property. He and Mr Dangen loaded Mr Davis into the car, took him to a secluded area of bush where, it was alleged, the applicant killed him with a thistle grubber.
The applicant and Mr Dangen were jointly charged with the kidnapping and murder of Mr Davis. Each also faced additional charges.[2] Kenneth Bracken was originally charged with kidnapping but was granted immunity from prosecution and gave evidence for the Crown.[3]
[2]The applicant was also charged with aggravated robbery, assault with intent to injure and burglary. Mr Dangen was also charged with receiving.
[3]Mr Dangen applied for immunity but was declined.
The applicant’s position was that he was not involved in the kidnapping and murder of Mr Davis and he maintained his denial in evidence. A mixture of direct and circumstantial evidence[4] was employed to link him to the killing, although there was no physical or forensic evidence linking him to the scene.[5]
[4]As set out in Bracken v R [2016] NZCA 79 (Miller, Fogarty and Toogood JJ) at [20] [Bracken (CA)].
[5]It was, however, alleged by the Crown that Mr Dangen’s footprint was found at the murder scene. This was not accepted by Mr Dangen’s counsel at trial.
Propensity evidence that the applicant had been involved in a similar
non-fatal kidnapping and of violence, intimidation and threats was also called. In relation to the prior kidnapping, the evidence was that the applicant had tied and gagged the victim, struck him across the back of the head with a gun and threatened him with knives before leaving him in the boot of a car overnight. The next day the applicant returned and, after striking the victim with a gun and throwing him into the bushes, the victim managed to free himself and flee the scene. Other evidence of violent conduct of the applicant included threats involving both knives and guns.
Mr Dangen admitted his involvement but said, in his police statement and through…

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 Wayne James Bracken v The Queen

Details

AGLC: Wayne James Bracken v The Queen [2016] NZSC 124
Case: [2016] NZSC 124
Decision Date: 13 September 2016

CaseChat Overview and Summary

In the case of Wayne James Bracken v The Queen, the applicant, Mr Bracken, sought leave to appeal against his conviction of murder and kidnapping. The case was heard by Glazebrook, Arnold, and O'Regan JJ. Mr Bracken was convicted on 28 September 2012, with the Crown case alleging that he, along with his two brothers and the victim, had been helping him move to a farm. The case then involved alcohol, drug consumption, and threats made by Mr Bracken towards the victim, ultimately resulting in the victim's kidnapping and murder. Mr Bracken denied any involvement in the crime.

The legal issues in this case revolved around two aspects of the trial. The first issue was whether evidence of Mr Kenneth Bracken regarding the effect of drugs on the applicant, coupled with a lack of directions on this issue from the judge, was sufficient to warrant an appeal. The second issue was whether evidence from Mr Frederick Bracken about the applicant's self-description as evil, the "chosen one," the devil, and having a thousand spirits looking after him showed meaningful propensity and should be excluded under s 42(1)(b) and/or controlled under s 85 of the Evidence Act, as well as being addressed explicitly in the summing up.

The court found that the first ground of appeal did not raise an issue of general or public importance, as it related to the particular circumstances of the case. The court also found that there was clearly an evidential foundation for the Crown submissions at trial, and nothing raised on behalf of the applicant suggested a risk of a miscarriage of justice. Regarding the second ground of appeal, the court considered the extent of the discretion under s 42(1)(b) of the Evidence Act to be a matter of general and public importance. However, it found that even if the cross-examination and closing submissions went too far, there was no risk of a miscarriage of justice due to the extent and content of the propensity evidence already before the jury and the strength of the Crown case. As a result, it was not in the interests of justice to grant the application for leave to appeal on this ground.

The final outcome of the case was that the application for leave to appeal was dismissed.

Orders