Price v R [2021] NZCA 568 (29 October 2021)

Last Updated: 2 November 2021

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA258/2018 [2021] NZCA 568

	BETWEEN	MARTIN GRANT PRICE Appellant
	AND	THE QUEEN Respondent

Hearing:	27 September 2021
Court:	Cooper, Venning and Palmer JJ
Counsel:	R M Mansfield QC for Appellant S K Barr for Respondent
Judgment:	29 October 2021 at 11 am

JUDGMENT OF THE COURT

1. The application to admit fresh evidence is declined.
2. The appeal against conviction is dismissed.

100. The appeal against sentence is allowed.

4. The minimum period of imprisonment of 17 years is quashed and replaced with a minimum period of imprisonment of 14 years.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

• [1] Martin Price killed John Morton in Nelson on 4 August 2016. A jury found Mr Price guilty of murder following a trial in the Nelson High Court. In doing so the jury rejected Mr Price’s defence of self-defence. Dobson J found that s 104 of the Sentencing Act 2002 was engaged and sentenced Mr Price to life imprisonment with a minimum period of imprisonment (MPI) of 17 years.^[1]
• [2] Mr Price appeals against conviction and sentence.

Background facts

• [3] Mr Morton lived on a boat moored in the inter-tidal zones of the estuary at Nelson Haven. Mr Price and Mr Morton were known to each other. They had fallen out over a relatively minor debt. Both used alcohol and drugs. In the early hours of the morning on 4 August 2016, Mr Price went from the Nelson CBD, where he had been drinking, to the estuary where Mr Morton lived on his boat. Mr Price thought he might be able to get some cannabis from Mr Morton. He went onto Mr Morton’s boat. There was a dispute which turned violent. The fighting started on Mr Morton’s boat but progressed to the ground around the boat. During the course of the fight Mr Morton suffered seven stab wounds and a number of blunt force injuries. Mr Price left the scene and returned to the Nelson CBD. He was seen on CCTV footage back in Nelson at 3.20 am. He appeared to have blood on his pants and to have a slight limp. He was also observed by members of the public at that time to have a cut lip. He was given a lift back to his home. Once at his home he disposed of his clothing, shoes, and a knife. Those items were never located.
• [4] Mr Morton’s body was found the following morning on another of the boats moored in the estuary. He was curled up in a foetal position on his right-hand side in the rear corner of the other boat. It seemed he had tried to break into its cabin. Forensic examination confirmed that Mr Morton had suffered a stab wound to the left side of his chest, two stab wounds to the back of his neck, lacerations to his left jaw line between the ear and chin, a large wound to his right upper wrist, and lacerations to his right upper thigh. He also had abrasions all over his body.
• [5] The forensic evidence from the scene suggested that after the fight had started on the deceased’s boat, it moved to an adjacent derelict boat, also owned by the deceased. From there the blood trail led to a third vessel owned by a friend of the deceased which was where his body was ultimately found.
• [6] When the police first spoke to Mr Price, he denied killing Mr Morton and said he had not seen him for months.

The defence at trial

• [7] By the time of the trial, and despite his earlier denial of any involvement, Mr Price accepted that he had killed Mr Morton. He gave evidence to support a narrative of self-defence or, in the alternative, a lack of murderous intent.
• [8] Mr Price said he went to Mr Morton’s boat to buy drugs. He said that Mr Morton had reacted aggressively to his arrival and had punched him. Mr Price said that he then punched Mr Morton back, and at that stage Mr Morton had produced a knife. Mr Price got off the boat, but Mr Morton jumped off it and followed him. Mr Price said he defended himself by hitting at Mr Morton with his backpack until he dropped the knife. A wrestle on the ground followed. Mr Morton ended on top of Mr Price, choking him. Mr Price then grabbed the knife and struck out at Mr Morton which he said must have been when the stab wounds were inflicted. Mr Morton then grabbed a piece of wood to attack Mr Price again. Mr Price defended himself again with the knife and then retreated. Mr Price did not consider that any of the injuries, even when taken together, were necessarily fatal. When he left the scene, Mr Morton was still alive, and he had no reason to be concerned that Mr Morton might die. He suggested someone else could have come on the scene and delivered further blows to Mr Morton.
• [9] The pathologist’s evidence suggested Mr Morton could have been alive for quite some time from when the stab wounds and other injuries were inflicted until he died. That was supported by the deceased’s attempt to forcibly enter the cabin of the boat where he was found.
• [10] The defence case closed to the jury on the basis Mr Price was acting in self‑defence. If the jury considered his use of force was not reasonable then it was submitted that he lacked the necessary murderous intent for murder.

Conviction appeal

• [11] As part of its case against Mr Price, the Crown called the evidence of Mr McCreath, a prisoner who had been in custody at Christchurch Prison with Mr Price while he was on remand awaiting trial. Mr McCreath gave evidence that Mr Price had confessed to him that he had stabbed Mr Morton and described the knife that he had used. He also said that he had kicked and stomped Mr Morton while he was on the ground.
• [12] To support his appeal, the appellant obtained an affidavit from Brett Drake. Mr Drake was another remand prisoner who had been with both Mr Price and Mr McCreath. Mr Drake said that Mr McCreath had told him he was going to set Mr Price up to get an early release.
• [13] Mr Mansfield QC submitted that:

(a) having regard to the decision of the Supreme Court in Roigard v R,^[2] Mr McCreath’s evidence should not have been admitted at trial;

(b) if Mr Drake’s evidence had been called at trial, it would have provided a further basis for ruling Mr McCreath’s evidence inadmissible; and

(c) the trial Judge’s directions to the jury about Mr McCreath’s evidence were inadequate.

• [14] Mr Mansfield submitted that the admission of Mr McCreath’s evidence and the inadequacy of the directions led to a miscarriage of justice. In terms of s 232(4) of the Criminal Procedure Act 2011 there was a real risk that the outcome of the trial was affected. The appeal against conviction should be allowed.

Sentence appeal

• [15] In sentencing Mr Price to an MPI of 17 years Dobson J found that s 104 of the Sentencing Act applied. He considered that both s 104(c), the home invasion provision, and s 104(e), the brutality provision, were engaged. The Judge did not consider that it would be manifestly unjust to impose an MPI of 17 years on Mr Price.
• [16] Mr Mansfield submitted that neither of the limbs relied on by the Judge to engage s 104 were made out. The murder had not involved the unlawful entry onto or unlawful presence in a dwelling place. Nor had the murder involved the necessary high level of brutality or callousness required to engage s 104(e).

The admissibility of Mr McCreath’s evidence

• [17] The Supreme Court decisions in Roigard v R and W (SC38/2019) v R were not available at the time of Mr Price’s trial.^[3] The issue before the Supreme Court in Roigard was whether the evidence of Mr F and Mr W (both of whom were prison informants) should have been excluded under the Evidence Act 2006. In granting leave to appeal, the Court had confirmed it was not revisiting its decision in Hudson v R that there was no presumption of inadmissibility of such evidence.^[4]
• [18] In both appeals the Court did, however, consider the approach to the exclusion of evidence from prison informants and particularly to what extent issues of reliability could be considered in determining whether under s 8(1) of the Evidence Act the probative value of the evidence was outweighed by the risk of unfair prejudice.^[5] The majority in Roigard concluded there had been no illegitimate prejudice from the admission of the evidence of Messrs F and W. Whether the disputed part of Mr F’s account was credible and reliable was a matter for the jury, who had the full picture about his incentives and history of dishonesty before them. Much of Mr F’s evidence had not been challenged and his evidence was consistent with other evidence at trial. The questions about the reliability and credibility of Mr W’s evidence were likewise for the jury and the probative value of the evidence favoured its admission in terms of the s 8 analysis.
• [19] In W (SC38/2019) v R the Court confirmed that exclusion of evidence under s 7 of the Evidence Act on the basis of lack of reliability was to be confined to cases where the evidence was so unreliable that it could not be accepted or given any weight at all by a reasonable jury. This could be because: (a) it would be speculative to accept the evidence; or (b) even taken at its highest, the fact-finder could not reasonably accept the evidence as tending to prove or disprove anything that was of consequence to the determination of the proceeding.^[6]
• [20] Mr Mansfield’s high-level submission that the current approach was an inadequate response to a “gross and prolific infection of evidence that strikes at the core of ... an individual’s fair trial rights” is a direct challenge to the decision of the Supreme Court in Hudson. This Court must apply Hudson.
• [21] Mr Mansfield then submitted that the cross-examination of Mr McCreath established that he had manufactured his meetings with Mr Price with a view to reporting to police entirely for his own advantage and that Mr McCreath had access to Mr Price’s disclosure which he used to bolster his evidence. While accepting that he had not challenged the admission of the evidence prior to trial, Mr Mansfield submitted that, after cross-examination, Mr McCreath’s reliability had been undermined to the point where the jury should have been told to disregard his evidence. It was so unreliable it could not satisfy the test for admission as relevant.
• [22] Mr Mansfield noted that Mr McCreath’s evidence assumed particular importance because Mr McCreath’s narrative had provided the Crown with a basis for cross-examination of Mr Price. Without it, there was no narrative other than Mr Price’s explanation for what had occurred that night. There were no other circumstances in the evidence to rebut self-defence. That submission however overlooks the extent of the injuries to Mr Morton that were confirmed by forensic evidence and the comparison of those injuries with the rather limited injuries sustained by Mr Price himself (the limp and scratches to his face and lip).
• [23] Mr Mansfield supported that submission by noting that the pathologist, Dr Sage, had accepted under cross-examination that a number of the injuries sustained by Mr Morton could have been caused other than by a blow from a fist or a kick. However, while Dr Sage did accept that general proposition, he went on to say:

... my reservation is that the extent of deep bruising over the back lesions I think makes it unlikely that simply somebody falling from a standing height and landing on their back, there is likely to have been more force than that involved in those, but some of the abrasions on the back of his arms or back of his legs could result from that, yes.

The submission also overlooks the significance of the stab wounds.

• [24] Mr Mansfield further supported his argument by pointing to the fact that his cross-examination of Mr McCreath established he had access to at least 80 or 90 per cent of police disclosure and was thus able to add a degree of credibility to his statement to the police. Mr Mansfield suggested that Mr McCreath’s attempts to improve his position were apparent from the evidence of the detectives who spoke to him.
• [25] We consider there is force in the Crown’s response to this point that it appears from the cross-examination that counsel and Mr McCreath were at cross-purposes when referring to the first meeting. It appears Mr McCreath was referring to a meeting with Detective Brad Greenstreet, while Mr Mansfield was referring to the first of two meetings Mr McCreath had with Detective Hauschild.
• [26] As Mr Barr pointed out, Mr McCreath dealt with two detectives. He initially contacted the police via Crimestoppers and he spoke first to an officer known as “Brad” (Detective Greenstreet) on 3 July 2017. At that meeting Mr McCreath provided handwritten notes dated between 23 June and 30 June 2017 to the detective. Later, on 11 August, Mr McCreath met with Detective Hauschild for the first time. He later spoke again to Detective Hauschild by telephone before meeting with him on another occasion, on 11 September 2017. By the date of that first meeting with Detective Hauschild, Mr McCreath had seen the disclosure, but he said he had not seen it before he met with Detective Greenstreet in July. In the statement taken from Mr McCreath on 11 September 2017, Mr McCreath is recorded as saying it was about a week after his meeting with “Brad” that he saw Mr Price’s disclosure.
• [27] Further, as in the case of witness Mr F in Roigard, there can be no dispute that at least some of the information Mr McCreath recounted had come directly from Mr Price. Aspects of Mr Price’s case which Mr McCreath told the police about were not available from disclosure, such as Mr Price’s statement that the deceased had punched him to the face and that he had stabbed Mr Morton four times. Mr McCreath referred to both matters in his statements to the police. He could not have obtained that information from reading Mr Price’s disclosure because Mr Price had not made a statement to the police when spoken to initially. Mr Price must have told Mr McCreath about both those matters.
• [28] Mr Barr submitted that Mr McCreath’s evidence had not been undermined by cross-examination and made the point that, while Mr McCreath had a history of dishonesty and was incentivised to give evidence (he ultimately received a six-month reduction in sentence for his assistance) the same features were present in the case of witness Mr F in Roigard. The relevant information about Mr McCreath was before the jury.
• [29] Mr McCreath’s evidence was directly relevant to Mr Price’s defence of self‑defence.
• [30] Whether Mr McCreath’s account was credible and reliable was a matter for the jury who had the full picture about Mr McCreath’s motivation for giving evidence, the actual incentive for doing so and his history of dishonesty.
• [31] For completeness, we record that the Crown had also intended to call evidence from another prisoner. This was a Mr Singh who had provided a statement to police and had apparently received a 19-month reduction in his sentence for sexual violation in exchange. However, ultimately the Crown elected not call Mr Singh so his evidence did not feature in the trial. Mr Mansfield was able to make good use of that fact in his closing address to the jury as part of his challenge to Mr McCreath’s evidence. He noted that the Crown had referred to Mr Singh in opening but had not called him. He submitted that Mr McCreath had “stuck his hand up” and wanted to speak to the police knowing the benefits he might get because he had seen the benefits derived by Mr Singh.
• [32] In summary, however, for the above reasons we reject the submission that Mr McCreath’s evidence was undermined by cross-examination to the extent that it was so unreliable it was inadmissible and the jury should have been directed to disregard it entirely.

The new evidence

• [33] Mr Mansfield’s next submission was that, even if the Court rejected his first challenge to Mr McCreath’s evidence, Mr Drake’s evidence completely undermined Mr McCreath’s credibility so that it can now be concluded the admission of his evidence had occasioned a miscarriage.
• [34] The appellant obtained an affidavit from Mr Drake to support his case that Mr McCreath was a dishonest witness and had given a false account of his discussion with him for the purpose of obtaining a benefit.
• [35] Mr Drake deposed that:

One evening while in the cell with Mark he told me that he was going to set Martin up.

Mark told me he was going to make up information about Martin’s case and that he would take that information to the Police in the hope of getting an early release.

• [36] And later:

I am aware from conversations that I had with Mark that he was intending to lie about the knife and tell the Police that Martin admitted taking the knife with him to where the guy was killed.

Using the information that Mark got from Martin directly and through reading the disclosure, Mark was able to mix in a certain amount of truth with the lies to blend it all together.

• [37] The Crown responded with an affidavit from Detective Hauschild. Detective Hauschild produced Mr Drake’s criminal history including details of some of his offending. In addition, by consent, the Court was presented with the notes that Mr McCreath had made before speaking to Police. Both Mr Drake and Detective Hauschild were cross-examined before us.
• [38] The first issue is whether the evidence of Mr Drake should be admitted for the purposes of the appeal. The principles dealing with admissibility of further evidence on appeal are settled. In Lundy v R the Privy Council approved the approach of this Court in R v Bain:^[7]

... [T]he proper basis on which admission of fresh evidence should be decided is by the application of a sequential series of tests. If the evidence is not credible, it should not be admitted. If it is credible, the question then arises whether it is fresh in the sense that it is evidence which could not have been obtained for the trial with reasonable diligence. If the evidence is both credible and fresh, it should generally be admitted unless the court is satisfied at that stage that, if admitted, it would have no effect on the safety of the conviction. If the evidence is credible but not fresh, the court should assess its strength and its potential impact on the safety of the conviction. If it considers that there is a risk of a miscarriage of justice if the evidence is excluded, it should be admitted, notwithstanding that the evidence is not fresh.

• [39] Mr Mansfield submitted Mr Drake’s evidence was fresh, credible and cogent.

Was Mr Drake’s evidence fresh?

• [40] It seems Mr Price was aware of the suggestion that Mr McCreath had made an allegedly false statement about him before his trial. During the course of his evidence Mr Price said:

... another chap [had] come up to me in [prison], he [said] to me you know, “McCreath told me he was going to set you up.”

The issue was shut down by defence counsel. But consistent with that reference in Mr Price’s evidence, Mr Drake said that before the trial he had told Mr Price that Mr McCreath might give evidence against him.

• [41] Further, the tone of the letters written by Mr Drake to Mr Price following the trial suggests Mr Drake had prior knowledge that Mr McCreath was going to give evidence against Mr Price. It is consistent with both Mr Drake and Mr Price having been aware of that issue prior to trial.
• [42] With reasonable diligence, Mr Price could have had Mr Drake called as a witness at his trial. He had the opportunity to raise the matter with his counsel and to call Mr Drake if it was thought that might assist him. However, despite it not being fresh, if the evidence had otherwise been credible and sufficiently cogent, we would have admitted it in the interests of justice.

Was the evidence credible?

• [43] More fundamentally, we do not accept Mr Drake’s evidence is credible. Mr Drake has a significant criminal history with, in excess of 80 convictions, including several for dishonesty. Further, as Detective Hauschild highlighted in his affidavit, on a number of occasions Mr Drake has attempted to conceal or destroy evidence and given false details to the police.
• [44] During cross-examination Mr Drake declined to answer when the proposition was put to him by Mr Barr that he had in the past attempted to have others give false accounts in order to improve his position or avoid criminal liability. The evidence of recorded calls made by Mr Drake suggested strongly that he had tried to have associates make false statements or affidavits on his behalf to provide a defence to the charges he faced at the time. While Mr Drake was within his rights not to answer the question, the Court is entitled to (and does) draw an adverse inference from his refusal to answer those questions.
• [45] Next, Mr Drake candidly admitted that he had in the past given false details and information to pretend calls he was receiving were from a lawyer in order to avoid having the calls recorded.
• [46] Finally, although Mr Drake did not accept it, his letters to Mr Price could be open to the interpretation that he was offering to give evidence to help Mr Price out, as opposed to coming forward to tell the truth.
• [47] Mr Drake was not a credible witness.

Was the evidence cogent?

• [48] Nor was Mr Drake’s evidence at all cogent. It was not a convincing answer to Mr McCreath’s evidence. As Mr Barr submitted, if Mr Drake had been called the defence would have been inviting the jury to rely on Mr Drake’s evidence about the cell mate discussions he had with Mr McCreath but urging them to reject Mr McCreath’s evidence about his cellmate discussions with Mr Price. The jury would have been drawn into a battle of credibility between the two which is unlikely to have assisted the defence. In the absence of Mr Drake’s evidence, the focus at trial was properly on Mr McCreath and the defence’s robust attack on his credibility.
• [49] The evidence of Mr Drake does meet the tests for admissibility. We put it to one side.

Directions

• [50] The Judge dealt with the warning regarding Mr McCreath’s evidence as follows:

[86] The next thing I want to say to you is a caution about the cell mate confession. Mr Mansfield spent some time both criticising the fact that the Crown called Mr McCreath and urging you that you couldn’t believe a word of it. And I give you these cautions. You should look at his evidence with care and a number of factors arise because of the circumstances.

[87] First, did he have incentives to give evidence against Mr Price? Relevant incentive was the prospect of a shorter sentence. Mr McCreath frankly acknowledged that there was such an incentive. You should bear in mind that there may be an incentive to give evidence that’s not true.

[88] Secondly, did you find there to be any animosity between Messrs McCreath and Price? If so, you should be wary of evidence that might have been given as a form of pay-back. Getting even may include evidence which is untrue.

[89] Thirdly, do the circumstances of Mr Price’s statements to Mr McCreath sound genuine, or was it – if you do accept what Mr McCreath attributes to Mr Price – was it just foolish bravado? And believe me, it’s not unknown for people remanded in custody to claim involvement in serious criminal activities that they have nothing to do with as a way of increasing their status within the prison. So assess whether any statements that you find Mr Price did make to Mr McCreath were any more than a matter of him showing off.

[90] Fourthly, how reliable was Mr McCreath’s recollection of what was in fact said? How long was it before there was any record in writing and how internally consistent were the recollections of the statements made to him by Mr Price? In weighing this up, you should consider whether Mr McCreath could, at the time he reported the conversations to the Police, have obtained the details from other sources. And in particular what I’m referring to there is Mr Mansfield pressing him about how long he had the disclosure and was everything that he said attributed to Mr Price – was everything attributed to Mr Price available to him from the disclosure. That’s probably a difficult question for you but it is a factor.

[921] So, as with all the evidence, what you make of the evidence of the so‑called cell mate confession is entirely for you, but before placing reliance on it, I’d ask you to test it against those additional cautions – those four I’ve just outlined.

• [51] Mr Mansfield submitted that in light of this Court’s comments in Baillie v R the direction was inadequate.^[8] In particular he referred to [59] of that decision.
• [52] With respect to that submission, in [59] of Baillie this Court was doing no more than summarising the propositions to be extracted from the decisions of the Supreme Court in Roigard and W (SC38/2019) v R. Not all the considerations will apply in each case. Importantly, the introduction to the various considerations stated:

For such witnesses [prison informants] a trial judge should consider whether to direct the jury:

• [53] Then at [60] this Court confirmed that it remains the case that directions are not mandatory and in particular there is no general requirement that juries be warned that prison informant evidence may lead to miscarriages of justice.
• [54] Mr Mansfield’s submission on this point was largely one of emphasis. He argued that the Judge should have referred to the true nature of the incentive and emphasised the point that Mr McCreath had access to Mr Price’s disclosure. He also repeated his submission under the first ground of appeal that the jury should have been told to put the evidence to one side.
• [55] As noted, this Court set out the jury directions a judge should consider in Baillie.^[9] In brief, these are the effect of promises or expectations, delay or incentives in any disclosure, weaknesses in the evidence including implausibility and inconsistency, the source of the witness’ information in the context of police dealings with that person, mistakenly attributing veracity to the witness’ evidence without appropriate regard for incentives, and exercising caution in the ultimate assessment of reliability.
• [56] Not all of those factors will necessarily apply in each case.
• [57] While a different judge may have placed more emphasis on the factors that did apply in the present case or may have expressed them differently, the relevant points and the cautions that applied particularly to Mr McCreath’s evidence in this case were covered in the Judge’s direction.
• [58] Importantly, Dobson J’s direction to the jury focused on the two principal points made in the cross-examination of Mr McCreath, namely that he was incentivised to make the statement and that he had had access to Mr Price’s disclosure. In addition, the Judge directed the jury to consider whether Mr McCreath may have had a reason to falsely make up allegations against Mr Price and whether Mr Price himself, if he did make the statements, may have done so out of bravado.
• [59] In the course of the direction the Judge also raised the issue of the reliability of Mr McCreath’s evidence and reminded the jury they should treat the evidence with care.
• [60] Finally, we also note that counsel did not raise any issue with the Judge following the summing up on this point.
• [61] For the reasons given above, this was not a case where it was necessary to direct the jury to ignore the evidence of the witness.
• [62] This ground of appeal also fails.

Sentence Appeal

• [63] In finding that s 104(1)(c) of the Sentencing Act was engaged, the Judge noted Mr Price had gone to Mr Morton’s boat at around 3.00 am, a time when Mr Morton would not have been expecting a visitor and would have been taken by surprise. While accepting it was not a classic “home invasion”, the Judge treated the whole of the boat as a dwelling place.^[10] Dobson J was also satisfied that s 104(1)(e) was engaged as well. While it was not at the highest level of brutality or callousness, the killing was a savage and prolonged beating which involved a high degree of brutality. He noted the significant difference in the level of wounds inflicted on the deceased compared with the minor injuries apparently sustained by Mr Morton.^[11] Dobson J did not consider it would be manifestly unjust for Mr Price to serve an MPI of 17 years.^[12]
• [64] Mr Mansfield challenged the Judge’s conclusion that s 104 applied. He submitted that Mr Price had an implied licence to go to Mr Morton’s boat. There was no unlawful entry and nor was his presence there unlawful. While the fight may have started on the boat it was initiated by Mr Morton and it seemed clear that the fatal injuries had been struck off the boat. Further, there was nothing in the circumstances of the killing that qualified this as being particularly brutal or callous. He referred this Court to a number of other homicide cases involving multiple stab wounds where s 104 had not been applied.
• [65] Section 104 as relevant provides:

(1) The court must make an order under section 103 imposing a minimum period of imprisonment of at least 17 years in the following circumstances, unless it is satisfied that it would be manifestly unjust to do so:

...

(c) if the murder involved the unlawful entry into, or unlawful presence in, a dwelling place; or

...

(e) if the murder was committed with a high level of brutality, cruelty, depravity, or callousness; or

...

• [66] Whether a case involves unlawful entry into or unlawful presence in a dwelling place is a factual inquiry to be resolved in the particular circumstances of the case.^[13] As a starting point, we accept that the deck of Mr Price’s boat could be regarded as part of his dwelling place. We would not restrict the dwelling place to the cabin on the boat. The deck was partially enclosed. It had sides to it and Mr Price had to climb up on to it.
• [67] Dobson J considered Mr Price may have been unexpected and uninvited, but that does not lead to the conclusion that he unlawfully entered Mr Morton’s dwelling place. There is no evidence that Mr Price went there intending to commit a crime or to cause Mr Morton harm. The more difficult issue is whether it could be said that once the fight broke out his presence there became unlawful or if it could be said that the murder which took place away from Mr Morton’s boat “involved” his unlawful presence on the deck of the boat. As noted, the forensic evidence suggests that the fatal injuries were sustained after both had left Mr Morton’s boat. The evidence about where exactly the injuries were inflicted is uncertain. All that is certain is that Mr Price inflicted the fatal blows. However, for reasons we explain below, we do not consider it necessary, in the particular circumstances of this case, to definitively determine whether s 104(1)(c) applies in this case.
• [68] We do not consider the Judge was correct to find that s 104(1)(e) was engaged. Mr Morton was beaten and stabbed several times, although only two of the stab wounds and some of the blows were potentially fatal and then not immediately so. Given the relationship between the Messrs Price and Morton and their background circumstances, the escalation of a dispute into a fight may well have been nothing particularly unusual.
• [69] There are a number of cases involving more serious assaults and stabbings where the Court has not applied s 104. It is sufficient to highlight the following. In Fraser v R a 12-year MPI was imposed for a stabbing incident which involved premeditation and pre-emptive arming with a knife in a context where a Mr Selby and his associates had hunted the deceased down and challenged them to a fight.^[14] There was no suggestion the level of brutality engaged s 104. In R v Hamiora the killing involved an unprovoked extensive beating from two people using a baseball bat before the victim was finally stabbed.^[15] The beating took place inside the house where the victims had been playing scrabble. The Judge adopted an MPI of 13 and a half years before considering an allowance for a guilty plea. There are numerous further examples where serious assaults, including stabbing, have not engaged s 104.^[16]
• [70] Relevantly, the present case did not, on Dobson J’s assessment, involve premeditation. The Judge was also prepared to accept that the knife used was Mr Morton’s own knife.^[17] Although it appears Mr Price did not suffer any significant injury as a result of the altercation there was a fight between the two of them during the course of which Mr Price inflicted the fatal wounds. Unfortunately, such offending is not uncommon, but in our assessment, it does not reach the level of brutality s 104 is intended to address.
• [71] It is unnecessary to definitively find whether s 104(1)(c) applied in the circumstances of this case, as we consider that, in any event, it would be manifestly unjust to impose an MPI of 17 years. Looked at overall, this is not the type of case s 104 was intended to apply to. As this Court said in R v Williams, an MPI of 17 years will be manifestly unjust where, as a matter of overall impression, the case falls outside the scope of the legislative policy that murders with specified features are sufficiently serious to justify at least that term.^[18] This is one of those cases.
• [72] The aggravating features of Mr Price’s killing of Mr Morton which engage the need to hold him accountable and to denounce his actions against Mr Morton can be met by the imposition of an MPI of 14 years in this case.

Result

• [73] The application to admit fresh evidence is declined.
• [74] The appeal against conviction is dismissed.
• [75] The appeal against sentence is allowed.
• [76] The imposition of an MPI of 17 years is quashed. Mr Price is to serve an MPI of 14 years.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Price [2018] NZHC 811 [High Court judgment].

^[2] Roigard v R [2020] NZSC 94, [2020] 1 NZLR 338.

^[3] Roigard v R, above n 2; and W (SC38/2019) v R [2020] NZSC 93, [2020] 1 NZLR 382.

^[4] Roigard v R [2019] NZSC 63 at [3], citing Hudson v R [2011] NZSC 51, [2011] 3 NZLR 289.

^[5] Roigard v R, above n 2, at [53]–[54] per Glazebrook, O’Regan and Ellen France JJ; and W (SC38/2019) v R, above n 3, at [87]–[89] per Glazebrook, O’Regan and Ellen France JJ.

^[6] W (SC38/2019) v R, above n 3, at [41].

^[7] Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120]. See also at [117]–[119], citing R v Bain [2003] NZCA 294; [2004] 1 NZLR 638 (CA).

^[8] Baillie v R [2021] NZCA 458.

^[9] At [59].

^[10] High Court judgment, above n 1, at [20]–[22].

^[11] At [26].

^[12] At [34].

^[13] R v Clarke [2000] NZCA 143; [2000] 3 NZLR 354 (CA) at [12]; and Pahau v R [2011] NZCA 147 at [73].

^[14] Fraser v R [2010] NZCA 313.

^[15] R v Hamiora HC Rotorua CRI-2005-063-3367, 24 November 2006.

^[16] R v Karaka HC Wellington CRI-2007-091-4694, 15 May 2009; R v Fa’avae HC Auckland CRI‑2006-204-748, 10 July 2008; and R v Pepene HC Auckland CRI-2009-044-7883, 13 December 2010.

^[17] High Court judgment, above n 1, at [10].

^[18] R v Williams [2004] NZCA 328; [2005] 2 NZLR 506 (CA) at [67].