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 a recent assault by the appellant upon their father which culminated in Mr Daken Senior moving from the Port Levy home to Christchurch. Kelly indicated to other members of the family an intention to confront the appellant concerning his conduct towards their father.
[5] Panckhurst J heard argument on the admissibility of the relationship evidence on Friday 21 August 2009 immediately before the trial was to begin on the following Monday. The Crown and defence both accepted the need for some relationship evidence relating to the appellant and Kelly but they differed as to the extent.
[6] The rulings were announced on the Monday and the reasons delivered on the third day of the trial (26 August). The Judge ruled in general terms that evidence of a family background was essential, to provide a context to assess both the deceased’s actions and the accused’s responses at the crucial time. The ruling excluded evidence tendered by the Crown from a sister of the appellant concerning an alleged incident between the appellant and her. It also excluded evidence which the defence wished to adduce in cross-examination of Crown witnesses, that in the lock-up at Ferrymead Kelly kept a box containing firearms, knives, night vision equipment, medical items and the like, and that he had been to the lock-up in the afternoon of 10 June 2008.
[7] The defence took no further objection to the extent of the evidence as given. The objections to its extent followed a post-trial analysis of the evidence. No doubt the pressures on trial counsel, who appeared also on appeal, could have contributed to failure to discern any problem. But equally the fact that experienced counsel were not troubled at the time is a consideration relevant to whether the Judge wrongly ruled the evidence admissible.

Background to appeal

[8] At about 7.30pm on 10 June 2008, after Warren and the appellant had eaten dinner, they were watching television. The appellant was sitting in a lazyboy chair. Kelly arrived at the farm with a bag of groceries. He walked silently into the kitchen and had a cup of milo. Warren said his two brothers “eyeballed” each other. Suddenly, without any warning, Kelly picked up a metal poker and began raining blows on the appellant’s thighs. One blow struck the appellant’s shoulder. Kelly was threatening to kill the appellant who responded “bring it on”.
[9] Warren intervened. He seized the poker from Kelly’s hand and threw it across the room to a couch where it remained. Kelly rushed to the appellant but Warren pulled him off. By this stage the appellant was out of the lazyboy and the two men were locked in a fight. Warren screamed at them to stop and then left the house to get help.
[10] From that point there was no independent oral evidence of what had occurred. In his video interview the appellant claimed he was being throttled and crushed by Kelly on the chair and then dragged to the couch where Kelly crushed him, lying face down. The appellant said he managed to get the knife out of his pocket and by flailing with a round arm action jabbed Kelly. He said Kelly kept coming and he had to fend him off with the knife. When Kelly collapsed the appellant went outside and called to Warren that he had killed Kelly. Warren returned to the house. The appellant washed his hands and the two men went back inside where the appellant kicked and spat on and abused Kelly, who was now dead. The appellant then turned and punched Warren suddenly in the head. The appellant and Warren went down the road to a nearby property of an aunt and uncle from where they called the police.
[11] When the police arrived they found Kelly lying face down on the lounge floor covered with blood with many stab wounds over his body.

The appeal against conviction

The challenged ruling as to appellant’s assaults on Mr Daken Senior

[12] It is common ground that, at the outset of the episode on 10 June which led to Kelly’s death, Kelly was the aggressor and wanted to hurt the appellant to teach him a lesson.
[13] The Crown contended that the severity of Kelly’s anger and his desire to inflict harm could be understood only in the light of a build-up of abusive behaviour by the appellant towards the family over the years and in particular towards their frail 86-year-old father. The Crown alleged that the catalyst of the assault by Kelly on the appellant was the most recent assault by the appellant on Mr Daken Senior: that Kelly was sick of the way the appellant had been abusive and that the recent assault by the appellant on their father had been the last straw for Kelly. The Crown submitted that it would be artificial and misleading to present an account to the jury of Kelly responding as he did on the basis of a single incident of rough treatment by the appellant of their father.
[14] Defence counsel submitted that only the most recent assault which led to his father leaving Port Levy should be admitted.
[15] The Judge ruled that other evidence concerning the relationship of the appellant with his father was admissible “if kept within reasonable bounds” as being “essential to provide a context to assess both the deceased’s actions, and the accused’s responses at the crucial time”. In consequence he allowed, as well as the primary evidence of Mr Daken Senior about the appellant’s behaviour towards him, evidence of supporting witnesses who could confirm his evidence at trial.

The disputed evidence at trial

[16] The Crown submitted that the evidence of relationships between family members was properly admitted to establish the history and stayed appropriately within reasonable bounds. Crown counsel submitted that the evidence stayed within the limits outlined by Crown counsel at the outset, was complementary to and in support of Mr Daken Senior’s oral evidence and did not stray into details or alter even temporarily the focus of the trial.
[17] The appellant’s counsel submitted that there was lack of a sensible restriction on the evidence which must have unfairly biased the minds of the jury to believe that the appellant had a violent propensity towards family members. They submitted that there would have been an overwhelmingly prejudicial effect from the repetitive nature of the evidence of the appellant’s continual violent conduct towards his father, a frail and unwell aged man. They submitted that this evidence could have been dealt with in a much more restricted manner without creating a very significant prejudicial effect against the appellant.
[18] The evidence in dispute was as follows. Passages the subject of dispute are emphasised.

Noel Daken

[19] The evidence in chief of Noel Daken (Mr Daken Senior) began with Crown counsel’s reference to its scope:

You’ll appreciate that we’re concerned with Kelly’s death and the cause of that, so I don’t want to go into too much detail but I just want to ask you a bit about your relationship with Patrick and any of the problems you had in more recent times that lead to you moving out of Port Levy, okay? Do you understand?

[20] Mr Daken described in chief three separate incidents:

Q Was there anything that led you to move out of Port Levy?

A Yes there was, Patrick.

...

Q Okay. Did you have arguments?

He used to go stupid at times and swear at me and curse and call me for everything, and wish to Christ I was dead, and he’d piss on me grave and all that sort of thing.

Q He’d say that you mean?

A He’d say that to me he would.

And did any of these arguments or abuse, did any of them end up in anything physical?

A No.

Q I am talking about Patrick?

A Not on my side, anyhow.

Q No. I am talking about Patrick towards you?

A Oh, sometimes he’d throw me around.

Okay. I just want to ask you about some of those, I don’t want to go into too much detail. I think Patrick had moved up to the North Island for a while didn’t he?

A That’s right.

...

Right I’ll just take you through a few things and you can tell me if I am correct. I think a couple of years ago, maybe a bit longer now as you say, was there an incident over I think Port Levy when you were sitting on a couch on the veranda?

A Oh yes.

Q When Patrick became angry and kicked out at you?

A That is right.

And subsequent to that was there another incident where I think you were down at a grandson’s 21st birthday in Invercargill?

A That’s right.

And did you get the door, when you opened the door did it get stuck against I think a garage, the side of the garage?
Yeah, touched the garage.
And did Patrick become angry and strike you?
He did.

...

Was there another occasion I think about 12 months or so before Kelly’s death, when you and Patrick had words about a dog?

A That’s right.

Q And his treatment of it. And his treatment of the dog?

He pulled the dog out from under the caravan and bolted the chain chucked the boot in.
I just wanted to clarify the incident. So did you have words with him about that?
Oh I did. When he asked me what I was looking so glum about, or something to that effect.
And did Patrick, when that happened, did Patrick I think grab you by the scruff of the clothing and around your throat and shove you?

A That is right.

Q Was he saying anything when he was doing that?

A Oh swearing and cursing and carrying on.

I think the most recent incident that I want to ask you about was. I am not sure exactly when, but say five or six weeks approximately before Kelly’s death, at 214 Pa Road, was there an incident where Patrick was sitting on a chair at the table and got angry over something, again grabbed you by the jersey around the throat area, and pushed you back into the chair and pushing his knuckles into your throat?

A That’s right.

Q How did you feel on that occasion?

A Me? I didn’t feel too good, I thought it was time to get out then.

Q Okay.

A Things had gone too far.

Warren Daken

[21] In chief Warren stated:

We are going to hear from your father, your old man as you put it. He had been at Port Levy. Had he moved back to the England Street or Christchurch?

A He moved into England Street with the old lady.

Okay and was that a short time before the 10th of June, the day we are concerned with?
Oh, the old man moved there before. He’s been thrown around in the caravan and told the old man to die.

Q Okay.

[22] In cross-examination:

As far as getting back to June of last year. Had you heard any arguments with your dad?

Oh yeah, plenty of arguments with the old man. Threaten to kill the old man, telling the old man to kick the bucket, hurry up ya old cunt, die. He would say to the old man. Thank you.

In re-examination, counsel for the prosecution elicited that the statement was by the appellant.

Arthur Daken

[23] Arthur Daken, another brother of the appellant, stated:

Did he [Kelly] tell you what was on his mind in that second conversation?

Yes he did, about Patrick. How he was going on with Dad.

So just tell us what he said to you about that?

He was just going on about Patrick, how Patrick was doing things to Dad and not helping and that sort of thing, saying Patrick was abusing Dad and it has to stop and I asked him to get the police or get help.

Q Right?

A And that was the last time I ever saw him

...

I just want you to try and remember what Kelly told you, right? So what was it that he said to you that he was going to do?
He just wanted to go over and stop the bullshit of Dad being hurt all the time, getting his fingers poked and smacked and all that, picked up and thrown in the chair and Kelly said he was going over there to stop it so there wouldn’t be any more abusing to my father and that.

Hineari Daken

[24] Hineari Daken (Mrs Daken Senior) stated:

Have you ever seen Patrick abusing or assaulting your husband, Noel?

Truth. Only once.

And where was that?

Coming home from our grandson’s 21st birthday in Invercargill.

And do you recall – I don’t want to go into the detail but how – exactly what happened in terms of any assault?

Yeah. Patrick was going fast, going fast, and we stopped at Te Muka. I didn’t know what happened between him and his father but they had an argument anyway, but we got on the road again and Patrick was driving too fast for us and Dad asked him to slow down and he gave Dad a backhander.

[25] Karen Ottaway (a friend of Kelly):

Are you aware of any issues between Patrick Daken and his father, Noel Daken?

There were a few incidents that went on and off yes.

Did you see any of these incidents?

One time I saw it. He doesn’t know I saw it but I saw him chuck his Dad.

...

Q And what happened?

I just heard yelling and I turned to look and he grabbed his Dad and shoved him back into his char.
Do you remember when abouts this was?

A I don’t know.

Q What if you used Kelly’s death as a reference.

A I still cannot tell you.

Q Do you want to take a guess at years or months?

A I’d say 2007 but I cannot be sure.

Q That’s all right. Can you tell us about Patrick and Kelly?

...

Q You talked to Kelly?

I talked to Kelly and he told me he’d found out some things and he’s been pissed off and he’d calmed himself down...

Q What did he tell you he’d found out?

That Patrick had been hurting their father and that everyone felt like they had to walk on eggshells and that nobody wanted to go to [Port Levy]. They were afraid Patrick would nut out.

[26] Ms X (a friend of Kelly):

Q Were you aware of any difficulties between Patrick and his father?

A Yeah I was.

The summing up

The direction

[27] The Judge directed the jury as follows:

[48] I then wanted, and this is the final aspect of the evidence, to refer to what I might term the background evidence. Not only have we this account of what occurred on 10 June 2008, but also a deal of evidence about the relationship of the accused and Kelly prior to then, including of course the so-called broomstick incident and evidence of incidents involving the accused and his father. This evidence was given in order to provide some background. Obviously you needed to have an understanding of these relationships, some sort of an understanding of this family in order to provide a context in which to assess the crucial events of 10 June last. Such things as were Patrick and Kelly on speaking terms? Did they get on? How did Kelly ordinarily behave when he got home on an occasion such as this? More importantly what was on Kelly’s mind this night when he arrived home and was seemingly removed, and quiet, and then violent in this way towards his brother? So it was essential that you understand some of the relationship and family issues in the background.

[49] There is another dimension to this evidence as well and that was brought out, particularly by Mr Zarifeh this morning in his address for the Crown, because what he said was that particularly the broomstick incident demonstrated a propensity, a tendency on Patrick’s part to resort to violence by using a knife when confronted. I will come back to that in a moment. There is also this evidence about the manhandling of Mr Daken senior and the back-hander he got in the car one day.

[50] That you may think is of an altogether different order or character and really, I urge you, the only relevance of that is that it may explain what affected Kelly this day when he apparently learnt of one of the more recent incidents involving his father and he talked about that and said it was about time he confronted Patrick about it. So treat that evidence for what it is. It is really background evidence showing the difficulties in that father and son relationship and, therefore, why it was that Kelly got himself into this state on this particular day. So it’s the broomstick incident that’s my real focus and I need to say, or make a number of points to you about that.

[51] The purpose of the evidence is two-fold, as I have already said, to provide some insight into the relationship between the brothers, but the Crown says that it also demonstrates a tendency on Patrick’s part to have resort to a knife. The first thing you are going to have to ask yourselves is, does it demonstrate a tendency to have resort to a knife? That is entirely a matter for you ladies and gentlemen.

[52] The first thing is, what did happen that day because we have two quite different accounts. The parents saying that the knife was out, carried by Patrick when Mrs Daken intervened and struck a blow with the broomstick and broke its shaft and that it was only then that Kelly picked up the broomstick, and that the two were confronting one another, one with a knife and one with a pointed stick. Whereas, of course, [Ms X] has a different recollection. She thought there was a struggle beforehand, and that the knife was only got from the caravan after Kelly had uplifted the broomstick and was using it as a weapon. If that were the case, well then the incident probably tells you little or nothing about a propensity to use a knife. Even if you concluded that it was the case that the knife was produced by Patrick at an early stage in the incident, you would still have to think about it.

[53] This, it seems was a one-off incident. It occurred some considerable time ago, some months, year or more. Is that a basis upon which to find that there is a tendency to resort to the use of a knife? If you find that it is evidence of such a tendency or propensity, how could you use the evidence? Well it is a piece of evidence, a circumstantial factor in assessing the account that the accused gave when he was interviewed by the detective that night and in measuring the account against the evidence of Warren in particular. I endorse what Mr Zarifeh said this morning. It’s only one factor. It may provide a guide or assist you in determining where the truth lies. If it doesn’t show any propensity, or tendency to use a knife, well then you just put it aside and it is just part of the background evidence, as are the incidents in relation to his father. Most importantly it wouldn’t be appropriate to reason along the lines, well this was very bad behaviour to draw a knife that day. Therefore he must be guilty on this occasion as well. That would be to invest the evidence with far more than it is worth. It is at most a factor which you might take into account, put into the mix, when examining the primary evidence which is that of the events on the 10th.

Discussion

[28] It is necessary for us to determine how the Evidence Act applies to evidence of conduct not immediately proximate to the fatal blows.
[29] Two decisions of this Court have held that background evidence does not fall within s 43. In R v R[1] the Court addressed evidence of physical abuse, sought to be led as part of the narrative and context on counts of sexual offending, in these terms:

[49] We do not consider it necessary or appropriate to undertake a propensity evidence analysis in respect of the evidence of X, Y and the appellant's wife as to the physical abuse that X alleges he suffered. In one sense, the evidence would show a propensity of the appellant, because it would show the appellant's tendency to behave in a particular way. But, we consider that such a broad interpretation of "propensity" evidence is unhelpful, since it would mean that any evidence of behaviour by an accused that went beyond a single incident would be "propensity" evidence. What the Crown seeks to establish, with the evidence of X, Y and the appellant's wife, is that the appellant operated a physically abusive regime in the household. The evidence is therefore corroborative of X's narrative. The fact that the evidence may also, in a broad sense, suggest a propensity by the appellant is a subsidiary feature of its relevance.

[50] We note that s 40 of the Evidence Act is broadly worded, and therefore that it is possible to bring a large class of evidence within the section. "Propensity" will not, however, always be the most appropriate frame of reference when assessing the relevance (and therefore admissibility) of evidence in a proceeding that falls within the apparent compass of s 40. We consider that to be the case in respect of this subset of the evidence in this proceeding.

[30] In R v Gooch[2] there had been evidence of a number of actions and comments by the accused prior to and earlier on the day of the alleged sexual offending. The evidence included the reactions and feelings of the witnesses to those actions and comments. The appellant argued that the evidence was not relevant, or that its probative value was outweighed by its prejudicial effect. He submitted that it was propensity evidence and that it required a proper consideration of s 43(4). The Crown submitted that the evidence was not received or used as propensity evidence; it was not evidence of the appellant’s propensity to have a certain state of mind, and that the evidence did not establish a propensity to ignore sexual rejection in the course of sexual activity. The Court[3] accepted the Crown’s submission that:

it was evidence of the appellant's disclosures of sexual frustration, of his overt manifestations of that frustration via lascivious comments to women, and his unusual conduct. Counsel submits that these disclosures, comments, and conduct do not expressly or implicitly betray the appellant's attitude concerning non-consensual sexual contact. The Crown submits that evidence that the appellant may have possessed a particularly heightened level of sexual frustration proximate to the offending was relevant to motive. Evidence that such frustration may have been exhibited under the influence of intoxication was relevant in the light of the evidence as to the appellant's state of intoxication on the night of the incident.

Citing R v R it held:[4]

On the primary question of relevance, we consider that the evidence is generally relevant, for the reasons advanced by counsel for the Crown. We consider that the potential relevance of the evidence is as contended for by the Crown, not as propensity evidence.

[31] We are bound by the determinations in R v R and R v Gooch, neither of which was cited to us. They impose a less exacting test of admissibility than s 43. We received substantially more extensive argument than was presented in those cases, to the effect that s 43 should in fact apply to background evidence.
[32] Because we are bound we do not appraise that argument, which may come to be considered by the Supreme Court. But in case there is merit in it and because this case involves the penalty of life imprisonment we consider whether, if s 43 does apply, there has been miscarriage of justice.[5]
[33] The Evidence Act states:

40 Propensity rule

(1) In this section..., propensity evidence—

(a) means evidence that tends to show a person's propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved; but

(b) does not include evidence of an act or omission that is—

(i) 1 of the elements of the offence for which the person is being tried;

...

(2) A party may offer propensity evidence in a ... criminal proceeding about any person.

(3) However, propensity evidence about—

(a) a defendant in a criminal proceeding may be offered only in accordance with section ... 43....

...

43 Propensity evidence offered by prosecution about defendants

(1) The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.

(2) When assessing the probative value of propensity evidence, the Judge must take into account the nature of the issue in dispute.

(3) When assessing the probative value of propensity evidence, the Judge may consider, among other matters, the following:

(a) the frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurred:

(b) the connection in time between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:

(c) the extent of the similarity between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:

(d) the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:

(e) whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:

(f) the extent to which the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusual.

(4) When assessing the prejudicial effect of evidence on the defendant, the Judge must consider, among any other matters,—

(a) whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and

(b) whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.

(Emphasis added.)

Was the s 43 test met?

[34] Here the Judge gave a helpful account of why the evidence was needed. We accept it had probative value in relation to the issue of self-defence and use of excessive force.[6] But did it go too far?
[35] Noel Daken recounted a number of separate occasions, on which the appellant had:[7]

(a) sworn at him;

(b) thrown him around;

(c) kicked out at him;

(d) struck him;

(e) grabbed him by his clothing and around his throat; and

(f) grabbed him by the jersey and pushed his knuckles into his father’s throat.

[36] Warren Daken confirmed the throwing, with the addition of the appellant telling his father to die.[8]
[37] Arthur Daken confirmed the oral abuse and the appellant’s having thrown his father around.[9]
[38] Mrs Daken Senior stated that the appellant had “given his father a backhander”.[10]
[39] Ms Ottaway confirmed the appellant’s having thrown his father around.[11]
[40] Ms X gave general evidence of difficulties in the relationship.[12]
[41] Did admission of that evidence give rise to miscarriage of justice? We return to that topic after dealing with other issues.

The direction

[42] The Judge’s account of the background evidence and the final sentence in [49] constitute a proper direction as to how it was to be used.

The broomstick evidence

[43] We also agree with the Judge’s treatment of the broomstick incident at the first sentence at [49] and at [50]–[52], directing the jury that the appellant’s recourse to a knife was “of an altogether different order or character”.
[44] This conduct falls within the class of propensity evidence in the classic sense: criminal conduct similar to that the subject of the charge.
[45] The remaining question in relation to the broomstick evidence is whether the Judge was right to admit it. We are satisfied that he was. In considering the admissibility of the evidence we are in more familiar territory. The Judge complied meticulously with the seven-step direction proposed in Stewart (Peter) v R.[13]
[46] In terms of s 43(3)(c) there is a distinctive similarity between the two occasions on which the appellant drew his knife. Given the clear direction provided to the jury, there was no serious risk of unfair predisposition of the jury against the appellant or their giving disproportionate weight to the broomstick episode.
[47] Overall, in terms of subs (1) the evidence was of high probative value in an issue in dispute, namely the appellant’s propensity or readiness to have resort to a knife, which was germane to the issue of self-defence or aggression (at [29]–[33] of the summing up).
[48] We accept the Crown submission that in terms of s 43, viewed as part of the whole pool of evidence, the disputed evidence was not more prejudicial than probative. It was directed to the specific topic of the parties’ relationship and, in the light of the Judge’s directions, would have been viewed by the jury in a sensible perspective. We do not consider it would have derailed their due consideration of the case.

Provocation

[49] The Judge gave a direction about the deceased’s provocation of the appellant by attacking him. He did not refer in terms to the background evidence or the broomstick incident. There was no occasion to do so. The evidence was there and it was for the jury to make their factual appraisal of the issue in its light.

Self defence

[50] The appellant submitted that the following italicised passages in two paragraphs of the self-defence direction contained a judicial suggestion that the appellant had become aggressive and was therefore objectionable. The passages, which we emphasise, are:

[29] The second inquiry is, did he use the knife and ultimately kill his brother in defending himself? Did Patrick Daken act in self-defence at the time or has the Crown shown that this was not in fact a situation of self-defence at the fatal moment, that rather, as Mr Zarifeh argued, self-defence was over and this had become pure aggression. So that’s the first question you will actually have to answer and I’ll come back to the issues sheet in a moment because the questions are actually going to be set out there.

...

[33] If it established the first, that it wasn’t an occasion of self-defence, that he was really just the aggressor, not in response to the threat, but because he chose to be aggressive, then self-defence would be bowled out at the first hurdle so to speak. But if that hurdle is left intact, if it is a reasonable possibility even, well then you will have to consider the issue of force and the Crown would have to satisfy you that the force was not reasonable. That is the first of the options and that really is very much centre stage in this case. The submissions from Mr Zarifeh, and from Mr Garrett this afternoon were very much directed to that issue of self-defence and I will come back to what they said in a moment.

[51] We do not accept the submission. The Judge was simply putting the competing contentions of counsel, not adding his own gloss.

The exclusion of evidence about the weapons and other items kept by Kelly in the lock-up at Ferrymead

[52] The appellant submitted that the existence of these items, described in argument as “the doomsday box”, was relevant to the significance in the mind of the appellant of the threat posed by Kelly when he mounted his attack.
[53] Panckhurst J cited defence counsel’s submission that:

The careful methodical compilation of the boxes contents is consistent with the careful planning that the deceased employed in attacking the accused.

and that it was:

Reasonable inference that the accused would have known that the deceased was an irrational person, who savoured survivalist ideals and had weapons secured to achieve that purpose.

[54] The Judge ruled:

The problem with defence counsel’s argument was that there was no rational connection between the existence of the survival kit and the attack made by the deceased on the accused. Kelly Daken armed himself with a weapon when he attacked his brother, but he used a poker uplifted from beside a log burner. Nothing from the survival kit was used in the course of the fatal events. Nor was any reference made to the box or its contents in the course of the poker struggle.

[55] Holding the existence of the survival kit not to be relevant to the issue in the case, he ruled it inadmissible.
[56] It is significant that in the 28-page video interview of the appellant conducted between 9.32 and 11.19 am on 11 June 2008 the appellant did not suggest that he had had the “doomsday box” in mind when Kelly mounted his unheralded attack. Nor was there any evidence to that effect.
[57] The question for the Judge was whether in terms of s 7 the evidence was relevant, that is whether it had a tendency to prove or disprove anything of consequence to the determination of the proceeding. Mahoney et al state:[14]

Relevance is a relational concept. It requires the proponent of the evidence to explain what the offered proof is relevant to and why. Questions of materiality and probativeness can therefore be assessed only within the concrete circumstances of a particular proceeding.

As they go on to state:[15]

Section 7 requires only the evidence of “tendency” to disprove a material proposition ... this is a proposition which is a low threshold.

[58] It is nevertheless a matter to be evaluated by the Judge as a matter of judgment. An important function of a trial Judge is to keep evidence within reasonable bounds. That is emphasised by the inclusion in s 7(3) of the requirement that evidence have “a tendency to prove or disprove anything that is of consequence to the determination of the proceeding”. “Tendency” is defined by the Oxford English Dictionary as including:

A constant disposition to move or act in some direction ... ; leaning inclination bias or bent toward some ... result.

[59] On an appeal against conviction this Court’s jurisdiction to interfere is if there has been a wrong or miscarriage of justice: s 385 of the Crimes Act. The exercise does not require or entitle this Court to examine minutely each ruling made by the trial judge before or during trial. In the area of evaluating the tendency of evidence, opinions will differ. Some Judges might have considered that the introduction of the further theme of the doomsday box was sufficiently relevant to justify admission. Others would reasonably have reached the same conclusion as Panckhurst J. The question is not whether another view is available but whether the Judge was wrong in forming his opinion. It is appropriate for trial judges to act robustly in making evidential rulings as the Judge did in rejecting the submissions of both Crown and defence at different times. We consider that Panckhurst J’s view was an available conclusion. The ground fails.

Was there miscarriage by reason of admission of so much background evidence?

[60] We return to this topic. Viewed, as we are doing out of caution, in terms of s 43(1), did the probative value of the evidence in relation to the self defence issue outweigh the risk that it might have an unfairly prejudicial effect? In considering that, was it likely to unfairly prejudice the jury against the appellant (s 43(4)(a))? Would the jury have tended to give disproportionate weight to the background evidence (s 43(4)(b))? Overall, in terms of s 385(1) of the Crimes Act was there miscarriage of justice? That requires consideration of the broomstick episode as well.
[61] The value of the background evidence was to place the deceased’s attack on his brother in realistic perspective. Taken out of context his conduct was inexplicable. While not of its nature lethal, Kelly’s behaviour was of such a high degree of violence that, without the background evidence there was human risk that the jury would view it as senseless and be tempted to feel that the troublemaker deserved all he received. It was appropriate for the background to be given with clarity and emphasis.
[62] We do not consider that the evidence went so far as to risk overwhelming the jury. If confined to one or two witnesses or one or two episodes it would have failed to convey the true background to the jury so they could evaluate the events of 10 June realistically, and would thus have failed to give the jury a true understanding of why Kelly attacked the appellant. The jury would have been unable to evaluate the appellant’s contention that he was acting in self defence without it. Nor would it have been sufficient to admit evidence to a lesser extent than that which was admitted at trial; it was necessary to recount the episodes of violence against the appellant’s father in their entirety as Kelly had made clear that he was reacting to what was merely the last in a succession of attacks on his father. Nor in our view does the addition of the broomstick episode create imbalance overall. The true picture was disagreeable. But the judge was right to allow the jury to see it as it was. The judge was entitled to admit the evidence.

Conclusion

[63] We dismiss the appeal against conviction.

The sentence appeal

[64] Section 102 of the Sentencing Act 2002 states that:

An offender who is convicted of murder must be sentenced to life imprisonment unless, given the circumstances of the offence and the offender, a sentence of life imprisonment would be manifestly unjust.

[65] Mr Garrett and Mr A J McKenzie submitted that the Judge erred in not departing from the presumption of life imprisonment for murder, citing R v O’Brien:[16]

There may be cases where the circumstances of a murder may not be so warranting denunciation and the mental or intellectual impairment of the offender may be so mitigating of moral culpability, that absent issues of future risk to public safety, it would be manifestly unjust to impose a sentence of life imprisonment.

[66] They cited also R v Rapira:[17]

The test is that the sentence of life imprisonment is manifestly unjust. That conclusion has to be made on the basis of the circumstances of the offence and the offender. It is an overall assessment. The injustice must be clear, as the use of “manifestly” requires. The assessment of manifest injustice falls to be undertaken against the register of sentencing purposes and principles identified in the Sentencing Act 2002 and in particular in light of ss 7, 8 and 9. It is a conclusion likely to be reached in exceptional cases only, as the legislative history of s 102 suggests was the expectation.

[67] They cited a number of authorities not submitted to the sentencing Judge which illustrate how in other jurisdictions excessive self-defence can mitigate criminal responsibility to such an extent as may reduce murder to manslaughter. They are marshalled in the Law Commission’s Preliminary Paper Battered Defendants: Victims of Domestic Violence who Offend[18] and Report Some Criminal Defences with Particular Reference to Battered Defendants.[19] Palmer v The Queen[20] on appeal from Jamaica, to the opposite effect was also, properly, cited. The former authorities form no part of New Zealand law.
[68] We accept the appellant’s basic thesis, consistent with or supported by these and other law reform materials, that excessive self-defence may fall within the second limb of s 102 so that a sentence of life imprisonment would be manifestly unjust. But the question for us is one of fact and judgment – whether in this case it does so fall. We have concluded it does not.
[69] Panckhurst J accepted that this is a case of excessive self-defence for which there was no relative precedent. His analysis was as follows:

[18] You are 42 years of age. The pre-sentence report, indeed the victim impact statements and some of the evidence at your trial as well, suggested you have a propensity to anger and violence. Yet, I note from your previous record, and to your credit, that you have only one relevant previous conviction and that was in 2005, a conviction for common assault upon which you were ordered to come up for sentence if called upon.

[19] The pre-sentence report, I note, indicates that you regard (in fact the word used in the report itself is that you are “fixated” on the belief) that the verdict reached by the jury is unjust and this, it seemed to me, has rather blocked your ability to have any proper insight into this tragedy and your ability to express remorse for your actions. But I wrote those comments before I had read your letter. It was only handed to me when I came onto the bench this afternoon. That letter, although in the main it seems to me to be very similar to what you said in the video interview, does perhaps evince some greater insight on your part and some signs of remorse. It is also well written, Mr Daken, so it confirms to me that you have a considerable level of intellect.

[20] Turning to the offence, I am satisfied that the facts of the case are the decisive consideration. While you were subjected to a sudden and very serious attack, and while your brother was armed with a poker and while you were caught unawares, matters changed. Firstly the focus of the attack was upon your legs. You sustained some injuries but nothing of a significant, much less life-threatening nature. And, this is the important matter, at an early point in the struggle Warren intervened. Kelly was disarmed. You were by then both on your feet. The poker, as I have already noted, was on the couch. You were fighting without weapons involved. Although you told the police at interview that Kelly continued to attack you, that you were in genuine fear for your life because you were unable to breathe and that you had no option but to use the knife, the jury in my view did not accept that account. Nor do I. It is the silent evidence which speaks the loudest. The injuries sustained by Kelly attest best to what actually occurred.

[21] I am driven to the view, Mr Daken, that you were enraged and that you inflicted multiple stab wounds to his back and chest in anger. Indeed, the extent of your anger was rather confirmed by what happened immediately after the death when you went back inside with Warren and then, even at that point, subjected your brother to those further violent insults to which I have already referred.

[22] Even giving full recognition to how this tragedy began I am not persuaded it is a case to depart from the presumption in favour of life imprisonment.

[70] The Crown submitted that the jury’s verdict reflected a view there was no cause for the appellant to have resorted to the use of his knife in the sustained and ferocious way he did. The deceased was by then unarmed. The appellant was experienced with his knife and well knew its power. He inflicted 24 injuries ranging from deep wounds to surface cuts. Several of the knife wounds were capable on their own of causing death. The wounds were to Kelly’s torso and into his chest cavity, on his back, and also into his skull and brain. The “silent evidence” to which the Judge referred indicated that Kelly was stabbed several times after he had been incapacitated by the first stab wounds to the chest cavity. He was then lying helpless on the floor. The wounds to the back of the head were consistent with the appellant kneeling on Kelly or being above him. Once Kelly was apparently dead the appellant washed his hands, put his boots on, summoned his brother Warren and returned to kick and stomp the deceased a number of times in the head and torso.
[71] We accept the Judge’s assessment. Given the circumstances of the offence and the offender, we do not consider, despite Kelly’s attack, that a sentence of life imprisonment would be manifestly unjust to respond to the brutal sustained acts of slaughter committed by the appellant. We dismiss the appeal against sentence.

Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v R [2008] NZCA 342.
[2] R v Gooch [2009] NZCA 163.
[3] At [6]–[8].
[4] At [8].

[5] We record the materials cited: Emma Harding “Should New Zealand Put the Jury in the Picture? The Admission of ‘Background Evidence’” (LLB (Hons) Paper, Victoria University of Wellington, 2003); in England: Professor Diane Birch’s note [1995] Crim LR 651, R v M [2000] 1 All ER 148 (CA); in Australia: Pfennig v R [1995] HCA 7; (1995) 182 CLR 461, Conway v R [2000] FCA 461; (2000) 172 ALR 185 (FCA), Geoff Flatman QC and Mirko Bagaric Non-similar fact propensity evidence: admissibility, dangers and jury directions (2001) 75 ALJ 190, Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292, Makin v A-G for New South Wales [1894] AC 57 at 65 (PC);in Canada R v B(CR) [1990] 1 SCR 717, R v Robertson (1987) 39 DLR (4th) 321 (SCC), R v D(LE) [1989] 2 SCR 111, R v Klymson (1994) 91 CCC (3d) 161, R v Lahaie (2005) 193 Man R (2d) 215.

[6] At [48] (see [27] above).
[7] At [19] above.
[8] At [21] above.
[9] At [23] above.
[10] At [24] above.
[11] At [25] above.
[12] At [26] above.
[13] Stewart (Peter) v R [2008] NZCA 429, [2010] 1 NZLR 197 at [117].

[14] Richard Mahoney, Elisabeth McDonald, Scott Optican and Yvette Tinsley The Evidence Act 2006: Act and Analysis (Brookers, Wellington, 2007) at [7.02].
[15] At [7.4].
[16] R v O’Brien CA107/03 at [36], 16 October 2003.
[17] R v Rapira [2003] 3 NZLR 794 (CA) at [121].

[18] Law Commission Battered Defendants: Victims of Domestic Violence who offend (NZLC Preliminary Paper 41, 2000).

[19] Law Commission Some Criminal Defences with Particular Reference to Battered Defendants (NZLC R73, 2001).
[20] Palmer v The Queen [1970] UKPC 2; [1971] AC 814 (PC).

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