IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE	
CRI-2018-088-440
[2019] NZHC 1566	

THE QUEEN	

v	

GARY BROUGHTON	

Hearing:	12 and 13 June 2019 (and later submissions)	
Appearances:	R B Annandale for the Crown
L J Postlewaight for the Defendant	
Judgment:	5 July 2019	

JUDGMENT OF GAULT J
(Disputed facts)

This judgment was delivered by me on 5 July 2019 at 4:00 p.m. pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Solicitors:
Mr R B Annandale, Marsden Woods Inskip Smith, Office of the Crown Solicitor, Whangarei Ms L J Postlewaight, Barrister, Waikanae

R v BROUGHTON [2019] NZHC 1566 [5 July 2019]

[1]	On 5 March 2019 Mr Broughton pleaded guilty to one charge of wounding Mr Sonny Manukau with intent to cause grievous bodily harm.1 That was an amended charge following the empanelling of a jury and the hearing of evidential matters on  4 March 2019 at the commencement of his trial on a charge of attempted murder.

[2]	Disputed facts emerged in the lead up to sentencing, which was adjourned pending a disputed facts hearing. In essence, the disputed facts relate to matters of provocation and excessive self-defence.2 At the conclusion of the evidence on 13 June 2019, counsel sought to file submissions in writing by 21 June 2019.

Summary of facts

[3]	On  12  February  2018  at  approximately  6:30  pm  Mr  Broughton  and   Mr Manukau were in the driveway of Mr Broughton’s home on Karakanui Road in Tinopai. They were having an argument over the theft of a pair of work boots that Mr Broughton alleged Mr Manukau had taken from him.

[4]	After the short argument Mr Broughton went into his house through his garage. He went to his bedroom, retrieved a samurai sword, and went outside back onto his drive. As Mr Manukau walked  down  the  drive  he  heard  someone  say  “yeah”. Mr Manukau turned around and immediately saw Mr Broughton coming towards him with blood coming from his head with an angry look on his face. Mr Manukau saw Mr Broughton was holding a samurai sword between his legs with the blade pointing upwards. By this point Mr Broughton was right in front of Mr Manukau. Mr Manukau believed he was about to be stabbed and moved to his left as Mr Broughton lunged towards him with the sword in a stabbing motion towards his neck. The sword pierced the front right of Mr Manukau’s neck and exited out the back right of his neck.      Mr Manukau did not immediately realise he had been stabbed. Mr Broughton then pulled the sword from Mr Manukau’s neck, planted his left foot forward and lunged forward with the sword going towards Mr Manukau’s stomach. Mr Manukau stepped back and grabbed Mr Broughton’s wrist. Mr Manukau says that in self-defence he grabbed the sword from Mr Broughton while using Mr Broughton’s momentum to

1	Crimes Act 1961, s 188(1), maximum 14 years imprisonment.
2	Matters which may be seen as leading to lower starting points in GBH offending: R v Taueki
[2005] 3 NZLR 372 (CA) at [32]. See [14] below.

throw him around to his right with some force. Mr Broughton landed on the ground where Mr Manukau says that he disarmed Mr Broughton and placed his knee onto Mr Broughton’s body to control him. Mr Manukau then realised that he had been stabbed in the neck by Mr Broughton and that blood was spurting from the wound.

[5]	Mr Broughton got off the ground and walked back to his house. Mr Manukau was assisted by his nephew, Daniel Wallace, who gave Mr Manukau a towel to put pressure on the wound in an attempt to stop the bleeding. Mr Manukau was taken to Dargaville Hospital where he was initially treated and then sent to Whangarei Hospital where he was operated on. Mr Manukau sustained an entry wound approximately three centimetres wide and an exit wound through the back of his neck approximately two centimetres wide. The sword stab caused internal damage, including a nicked vein that had to be by-passed and fixed.

[6]	The summary of facts also records that, in explanation, Mr Broughton stated that Mr Manukau had stolen his work boots and that after Mr Broughton had approached Mr Manukau about this Mr Manukau had assaulted him on the driveway of Mr Broughton’s house. Mr Broughton said that Mr Manukau had chased him into his house. Mr Broughton stated that the injuries that he had when he was taken into custody – a gash to the front of his forehead, a lump on the left side of his head, and a few other grazes on his arm and legs – were as a result of this assault.

[7]	Mr Broughton stated that as a result of the assault he was angry and that he wanted revenge. He went to his house thinking that he wanted to kill Mr Manukau, got the sword from his bedroom thinking to himself that he would go outside and hit Mr Manukau. He later said that he returned outside to hit Mr Manukau. He said that he was acting in self-defence. Once outside Mr Broughton lifted the sword above his head. He said Mr Manukau was coming towards him. Mr Broughton stated that there was a struggle and that the victim grabbed his arm in self-defence and took the sword from him. He said that he was defenceless.

[8]	When questioned Mr Broughton initially denied stabbing Mr Manukau through the neck but later stated that he could not remember if he had, and it was possible he did but could not remember doing it.

Disputed facts

[9]	The issues to be determined were summarised in Ms Postlewaight’s memorandum on behalf of Mr Broughton:

(a)	Whether the verbal argument over the theft of a pair of work boots on 12 February 2018 started in the driveway near Mr Manukau’s home on Karakanui Road.

(b)	Whether Mr Manukau followed Mr Broughton to his home across the road and assaulted Mr Broughton on the driveway outside his home causing Mr Broughton physical injury to his head.

(c)	Whether the assault by Mr Manukau, as alleged by Mr Broughton, involved the pushing of Mr Broughton’s head into the stones of the driveway on two or three occasions causing injury.

(d)	Whether Mr Manukau followed Mr Broughton into his house and sought to gain entry through an internal door into the house.

(e)	When in the house, whether Mr Broughton feared Mr Manukau was intending to break into the house and use further violence against him based on:

(i)	the first assault;

(ii)	noises Mr Broughton heard in the area of the garage;

(iii)	whether Mr Manukau in an unprovoked assault had pushed  Mr Broughton off a deck in 2014 causing Mr Broughton physical injury to his head; and

(iv)	whether Mr Broughton reasonably believed Mr Manukau had a reputation for violence.

(f)	Whether Mr Broughton in an initial response in coming to the entry of the garage door with the sword did so to protect himself.

(It is conceded for sentencing purposes at that point Mr Manukau had turned  to  walk  away  and  the   threat   of   violence   was   less.   The subsequent assault on Mr Manukau was excessive.)

[10]	Ms Postlewaight’s memorandum also recorded other matters raised in the Crown’s submissions:

(a)	Whether Mr Broughton was intoxicated.

(b)	Whether Mr Broughton left the driveway and went into his home for the purpose of retrieving the samurai sword.

(c)	Whether Mr Manukau’s actions, as alleged by Mr Broughton, were an operative cause of Mr Broughton’s actions against Mr Manukau.

Legal principles

[11]	Section 9 of the Sentencing Act 2002 (the Act) requires the Court in sentencing to take into account specified aggravating and mitigating factors. Relevantly, for example, the Court must consider, where applicable, violence and use of a weapon  as aggravating factors (s 9(1)(a)) and the conduct of the victim as a mitigating factor (s 9(2)(c)).

[12]	Where a defendant has pleaded guilty but there are disputed facts affecting aggravating or mitigating factors relevant to sentencing, those aggravating or mitigating facts must be proved in accordance with s 24 of the Act. Section 24 provides:

24	Proof of facts

(1)	In determining a sentence or other disposition of the case, a court—

(a)	may accept as proved any fact that was disclosed by evidence at the … trial and any facts agreed on by the prosecutor and the offender; and

(b)	must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt.

(2)	If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by one party and disputed by the other,—

(a)	the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case:

(b)	if a party wishes the court to rely on that fact, the parties may adduce evidence as to its existence unless the court is satisfied that sufficient evidence was adduced at the … trial:

(c)	the prosecutor must prove beyond a reasonable doubt the existence of any disputed aggravating fact, and must negate beyond a reasonable doubt any disputed mitigating fact raised by the defence (other than a mitigating fact referred to in paragraph (d)) that is not wholly implausible or manifestly false:

(d)	the offender must prove on the balance of probabilities the existence of any disputed mitigating fact that is not related to the nature of the offence or to the offender's part in the offence:

(e)	either party may cross-examine any witness called by the other party.

(3)	For the purposes of this section,—

aggravating fact means any fact that—

(a)	the prosecutor asserts as a fact that justifies a greater penalty or other outcome than might otherwise be appropriate for the offence; and

(b)	the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case

mitigating fact means any fact that—

(a)	the offender asserts as a fact that justifies a lesser penalty or other outcome than might otherwise be appropriate for the offence; and

(b)	the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case.

[13]	In Archer v R, the Court of Appeal stated:3

It will be seen that the sentencing court must accept as proved all facts essential to a guilty plea or verdict and may accept as proved any fact that was disclosed by evidence at the trial or agreed by the parties, and the prosecutor must prove, or negative as the case may be, beyond reasonable doubt the existence of (a) any disputed aggravating fact or (b) any disputed mitigating fact that (i) relates to the offence or the defendant’s role in it and (ii) is not wholly implausible or manifestly false. A fact qualifies as an aggravating or mitigating fact when the court accepts that it may, if proved, affect the sentence.

Accordingly, the legislation distinguishes between material facts already proved by trial evidence or implicit in the finding of guilt, on the one hand, and material facts the parties may agree or prove for sentencing purposes, on the other. It also distinguishes mitigating facts about the offence or the defendant’s part in it, which the prosecutor must negative beyond reasonable doubt, from other mitigating facts, which the defendant must prove on the balance of probabilities.

Proof of disputed facts requires a sentencing hearing, which is triggered through a process beginning when one party asserts a fact and the other disputes it. The disagreement having been identified and drawn to the court’s attention, the judge indicates whether, if proved, it may affect sentence and in what way. For a mitigating fact about the offence or the defendant’s role in it, the court also decides whether the fact is wholly implausible or manifestly false, a threshold that must be crossed before the prosecutor may be called upon to negative it. If the fact qualifies as an aggravating factor as a mitigating fact necessitating proof and the party wanting to rely on it persists, both parties may adduce evidence as to its existence “unless the court is satisfied that sufficient evidence was adduced at the trial”.

[14]	In relation to mitigating factors in GBH offending, in R v Taueki a Full Court of the Court of Appeal stated:4

Matters reducing the seriousness of GBH offending

Matters which may be seen as leading to lower starting points are:

(a)	Provocation: Where the offender has been provoked, that may justify a lower starting point. It is not enough simply to claim to have been incensed by the actions of the victim or another: rather, the sentencing Judge will need to be satisfied that there was serious provocation which was an operative cause of the violence inflicted by the offender, and which remained an operative cause throughout the commission of the offence.

3	Archer v R [2017] NZCA 52 at [10]-[12].
4	R v Taueki [2005] 3 NZLR 372 (CA) at [32].

(b)	Excessive self-defence: Similarly, where a party has acted out of self-defence but has gone too far, the fact that the attack initially commenced as an effort to defend himself or herself (or another) may be seen as reducing the seriousness of the offending.

[15]	In Wairau v R the Court of Appeal referred to Hamidzadeh v R concerning provocation in murder cases and stated:5

… Bearing that context in mind, the decision is of assistance in the context of violent offending below the level of murder when considering provocation as a factor in the conduct of the victim under s 9(2)(c). The following essential points may be drawn from it:

(a)	It is no longer essential to establish that the provocative conduct of the victim would have deprived an ordinary person, with the attributes of the defendant, of the power of self-control.

(b)	Loss of control is still a factor relevant to culpability. Offending resulting from a “sudden and justified loss of self-control “may, depending on the circumstances, be viewed as less culpable than one involving a “calculated and controlled response”.

(c)	A flexible approach is required; the evaluation in provocation sentencing is fact dependent. Relevant factors may include (non-exhaustively):

[T]he nature, duration and gravity of the alleged provocative conduct; the timing of any response by the offender; whether the response was proportionate to the nature, duration and gravity of the provocation; whether the provocation was (or remained) an operative cause of the offender’s response; and whether the provocative conduct was such as to reduce the offender’s culpability in all the circumstances.

Other factors identified by the Court of Appeal in Hamidzadeh as potentially arising include whether the offending occurred through fear rather than anger, whether there is any issue of intellectual impairment involved, and whether the offender has previously been the subject of physical or sexual abuse bearing on overall culpability.

[16]	The weight to be attached to any proved aggravating or mitigating facts is to be assessed at sentencing.

The hearing

[17]	Both Mr Manukau and Mr Broughton gave evidence at the disputed facts hearing, as did several other witnesses.

5	Wairau v R [2015] NZCA 215 at [29] (footnotes omitted); and Hamidzadeh v R [2012] NZCA 550, [2013] 1 NZLR 369.

Mr Manukau’s account

[18]	Mr Manukau gave evidence that he and a number of extended family members lived in various houses on family land at Karakanui Road in Tinopai. He lived in a house across the road from Mr Broughton and his wife, Amy, who is Mr Manukau’s niece.

[19]	On 12 February 2018, before Mr Manukau left to go to work in the morning, Mrs  Broughton  came  and  accused  him   of   stealing   Mr Broughton’s   boots.  Mr Manukau said he did not steal Mr Broughton’s boots, and that he got his own work boots the Friday before.

[20]	Soon after Mr Manukau came home from work, he went over to a nearby portacom  where  his  nephew,   Malcolm  Wallace,   was   staying.   While   there, Mr Manukau saw Mr Broughton come down and walk past, towards another portacom, where Daniel Wallace was staying. Daniel Wallace is Mr Manukau’s grand- nephew. Mr Manukau said that he noticed that Mr Broughton was intoxicated, carrying a Steinlager and stumbling. Mr Broughton went into Daniel Wallace’s portacom. He came out after a minute with his boots and fell over, off the balcony. He picked up his bottle and boots and came over towards where Mr Manukau and Malcolm Wallace were sitting. Mr Broughton started abusing them. Malcolm Wallace tried to explain that he had taken the boots and Mr Broughton said “nah, I don’t believe your shit” and pointed at Mr Manukau and said “you, you’re gone”.

[21]	Mr Broughton walked off and Mr Manukau got up and started following him up towards Mr Broughton’s house. Mr Manukau said he asked Mr Broughton: “Why do you always hate me when you’re under the influence of alcohol? If you have issues with  me,  bring  it  up  but  not  when  you’re  under  the  influence  of   alcohol.”  Mr Broughton kept saying “you’re gone, you’re gone”. Mr Manukau then said to him: “Well you’ve got 10 minutes to pack your stuff and get out of my grandfather’s house.” As Mr Broughton went under his garage roller door, Mr Manukau said: “Did you hear me Gary?” Mr Broughton turned around and said “yeah”. Mr Manukau said “yeah, you’ve got 20 minutes”. Mr Broughton slammed the door from the garage into the house.

[22]	Less than a minute later, Mr Manukau was walking back down the driveway and heard “yeah, effin”.   He spun around and the samurai sword was right there.   He saw a sparkle. Mr Broughton was holding something in both hands with his hands outstretched in a combat stance. Not realising that it went through his neck, when Mr Broughton pulled it back it felt like a cigarette burn. Mr Manukau said “you missed – put the blade down”. Mr Broughton took a step forward, going for Mr Manukau’s chest. Mr Manukau grabbed Mr Broughton’s hand. He noticed that Mr Broughton had blood all  over  his  face  and  that  he  had  no  boots  on.  Mr Manukau  used  Mr Broughton’s forward momentum and pulled Mr Broughton down. Mr Broughton was on the ground for a good 10 minutes and then crawled up towards his house.

[23]	In cross-examination, Mr Manukau denied earlier pushing Mr Broughton over and pushing his head into the ground. He also denied following Mr Broughton into the garage and pulling on the door into the house until Mr Broughton was able to lock it and denied trying to get in the ranchslider doors. He denied seeing Mr Broughton as he came out the garage door and denied walking towards him.

[24]	In cross-examination about the incident at New Year 2014, Mr Manukau accepted that Mr Broughton came over and rudely interrupted and Mr Manukau said: “What  gives  you  the  right  to  talk  to  me  like  that?”  But  he  denied  pushing  Mr Broughton off the deck.

Daniel Wallace’s account

[25]	Daniel Wallace also  gave evidence.  He is Mrs Broughton’s son, aged 20.  Mr Manukau is his great uncle. Mr Wallace said he was in his cabin and his stepdad Mr Broughton came in the room in shorts with no t-shirt, holding a “Steiny”. He was drunk. Mr Broughton said, “if Uncle Son doesn't give my effin boots back then I'm going to stab him”, and, “I don’t care if I go to jail for murder”. Daniel got up and ran inside his grandparents’ house because he did not want to hear what Mr Broughton had to say and started  making a Milo.  He looked up and saw Mr Broughton  and  Mr Manukau in the driveway, looking like they were arguing. He said Mr Broughton “went inside to the shed and then ran out with the sword in a stabbing motion and then

that’s when I ran and I seen the sword go in and then I ran up…”. He indicated an upwards stabbing motion.

[26]	In cross examination, it was suggested Mr Wallace didn’t see much and his evidence was based on what other people said. He denied talking to Mr Manukau or his mother about his evidence. He also denied saying to his mother that he had not told the Police the whole truth, and that he once said sorry to Mr Broughton because he had seen Mr Manukau assault Mr Broughton that afternoon.

Deborah Wallace’s account

[27]	Deborah Wallace is Mrs Broughton’s sister and Mr Manukau’s niece. She said she was in the garden when she heard Mr Manukau and Mr Broughton arguing over a pair of work boots, for probably 20 to 30 minutes. She heard Malcolm Wallace say to Mr Broughton that the boots were in his (car) boot but Mr Broughton was adamant Mr Manukau had them. They started arguing by Malcolm Wallace’s cabin and carried on walking up to Mr Broughton’s house. She went inside and didn’t see them after that until Daniel Wallace called out “uncle’s bleeding”.

Police interview evidence

[28]	Mr Broughton was interviewed by a police constable at about 8:25 pm that evening. Mr Broughton said to the constable that about 6:00 pm his wife told him that Mr Manukau had got angry at  her  in  the  morning  when  she  saw  him  wearing Mr Broughton’s boots. He went down to Daniel Wallace’s house to ask him about his boots. Daniel did not know anything about them. Mr Broughton was walking up his drive and Mr Manukau came up and pushed him over. Mr Broughton fell over and hit his head and elbow on the ground. He got up and ran inside and got his sword. He said he wanted to kill him; he was defenceless. He also said: “I got angry so I grabbed the  sword.  I  was  scared.”  He  also  said  it  was  not  the  first  altercation  with  Mr Manukau, “last time he pushed me off the balcony”.

[29]	Mr Broughton also had a DVD recorded interview with a detective later that night, commencing at 1:38 am, for approximately an hour and a half. In that interview as well, Mr Broughton said that Mr Manukau had asked him for work boots for his

new job and then when he got up to go to work that morning his boots were gone. He and his wife thought Mr Manukau had pinched them. When he got home from work his wife said that she went down to ask Mr Manukau in the morning and he “got ugly”. Mr Broughton said he went down to ask Daniel Wallace if he had seen them and he said no. As he was walking back, he saw Mr Manukau and said “Oh, fuckin’ got my boots bro”. He said Mr Manukau “got real looped [or worked] up … he followed me and pushed me over”. He was injured and it made him angry. He went inside and retrieved the sword. Upon further questioning, he said that his head was pushed down into the stones, and the attack went on for a couple of minutes.

[30]	In that interview, Mr Broughton also referred to the previous altercation in 2014.

Mr Broughton’s account

[31]	In his evidence, Mr Broughton said that on the Sunday afternoon Mr Manukau came up and asked if he had a spare pair of work boots. When he got home from work his wife said she had gone down to see Mr Manukau and he was wearing the boots. Mr Broughton saw Daniel outside his bach and went down to have a word with him. He started to walk  back  and  Mr  Manukau  said  “Malcolm’s  got  your  boots”.  Mr Broughton said “whatever, you’re a fucking liar”. Mr Broughton kept walking up the driveway. He knew Mr Manukau was behind him and he started to walk a bit faster. He said:

I felt a, a thud or push at the back of me and I stumbled, fell forward and landed on the ground … Mr Manukau jumped on my back … and lifted my head and slammed it into the ground. He was lifting my head up and then slamming it into the ground … it happened three times before I said to myself I, I have to get out of here because I felt like he was gonna kill me so … when he lifted up to go for the fourth time I put my arms, my arms in front of me and pushed back on my torso and he, he fell off and I got up and I ran inside the garage.

[32]	He also said that before he fell, Mr Manukau said “you’ll have to pack up your stuff and get outta here”.

[33]	When he ran inside Mr Manukau was behind him. He tried to lock the door from the garage into the house, but Mr Manukau was trying to get in. Finally, he

locked it and went to his bedroom. He heard a noise outside on the veranda. He got the sword. He thought Mr Manukau was going to come in through the ranchslider. He was scared because he thought Mr Manukau was trying to kill him. In less than a minute, he went back out through the garage and looked to see whether Mr Manukau was on the veranda or inside the house. He thought he might escape. He turned around and saw Mr Manukau standing in the driveway facing away. Mr Broughton said “yeah fuck off otherwise I’ll kill you”. Mr Manukau turned around and started walking towards Mr Broughton. Mr Broughton had the sword up in the air. Mr Manukau came up and grabbed Mr Broughton’s arm. They wrestled with the sword. Mr Manukau had his hands around Mr Broughton’s hands and the sword was going everywhere. Mr Broughton could feel Mr Manukau’s hands getting his grip off the sword so     Mr Broughton let go and turned around and ran back through the garage into the house.

[34]	He also referred to the 2014 incident, which allegedly happened soon after they met in November 2013. On New Year’s Day 2014 Mr Manukau said “you need to get off my grandfather’s property” and pushed Mr Broughton in the chest. Mr Broughton fell over the balcony and hit his head on two motorbike ramps on the grass splitting the back of his head. In cross examination, it was put to him that he had a problem with alcohol and was drunk at the time of the 2014 incident, which he denied.

[35]	He was also asked about the work boots that were back in his garage when police arrived. He said someone must have put them there.

Mrs Broughton’s evidence

[36]	Mrs Broughton confirmed that she asked Mr Manukau in the morning if he had her husband’s boots, and it  “got  ugly”.  She  was  out  when  Mr  Broughton  and Mr Manukau had their argument.

Mr Tana’s evidence

[37]	Mr Tana gave evidence regarding the 2014 incident. He said Mr Manukau was belittling Mr Broughton because he was  in  Mr  Manukau’s  grandfather’s  house. He saw Mr Manukau getting ready to do something. Later, he walked down to get

Mrs Broughton because he could feel something was building up. When he looked back, Mr Broughton was pushed off the deck but he did not see who pushed him.

Analysis

[38]	A preliminary point is that at sentencing the Court must accept as proved all facts, express or implied, that are essential to a plea of guilty.6 Mr Broughton has pleaded guilty to wounding with intent to cause GBH. As Mr Annandale for the Crown submitted,  the  facts  essential  to  that  plea  in   the  summary  of  facts   are  that Mr Broughton lunged towards Mr Manukau with the sword in a stabbing motion and the sword pierced Mr Manukau’s neck.   This  must be accepted despite some of    Mr Broughton’s evidence suggesting the wound may have occurred while they were tussling with the sword.

[39]	Mr  Annandale  accepts  that  the  reference  in  the  summary  of  facts  to  Mr Broughton lunging a second time is not essential to the guilty plea. He submits, however, it could justify a greater penalty and is properly characterised as a disputed aggravating fact.   The Crown asserts that fact.   The Crown also now asserts that   Mr Broughton’s threat to kill according to Daniel Wallace’s evidence is a disputed aggravating fact. Mr Annandale acknowledged that these disputed aggravating facts must be proved beyond reasonable doubt.7 I will return to these disputed aggravating facts later.

[40]	I deal first with the disputed mitigating facts. As to approach, Mr Annandale accepts that the threshold has been crossed in relation to provocation such that the Crown is called upon to negate it beyond reasonable doubt.8 In relation to excessive self-defence, however, the Crown submits that Mr Broughton’s evidence is wholly implausible or manifestly false such that the threshold has not been crossed and the Crown is not required to negate it. For the reasons that follow, I consider the threshold has also been crossed in relation to excessive self-defence and the Crown is required to negate it.

6	Section 24(1).
7	Section 24(2)(c).
8	Section 24(2)(c); and Archer v R [2017] NZCA 52 at [12].

[41]	I  deal  with  the  disputed  mitigating  facts  in  the  sequence  set  out  in   Ms Postlewaight’s memorandum referred to at [9] and [10] above.

Whether the verbal argument over the theft of a pair of work boots on 12 February 2018 started in the driveway near Mr Manukau’s home on Karakanui Road

[42]	Although it was not mentioned in the agreed summary of facts, there is no doubt that the argument between Mr Broughton and Mr Manukau over the theft of a pair of work boots on 12 February 2018 started before they were on Mr Broughton’s driveway. Both protagonists referred to their earlier exchange outside Malcolm Wallace’s portacom, across the road from Mr Broughton’s house, which followed Mrs Broughton’s accusation about the boots that morning.

Whether Mr Manukau followed Mr Broughton to his home across the road on Karakanui Road and assaulted Mr Broughton on the driveway outside his home causing Mr Broughton physical injury to his head

[43]	Both Mr Broughton and Mr Manukau also referred to Mr Manukau following Mr Broughton to his home on Karakanui Road. However, their evidence differed starkly as to whether Mr Manukau then assaulted Mr Broughton, as Mr Broughton claims. Mr Manukau denies this.

[44]	Mr  Broughton’s  evidence  was  not   persuasive   in   material   respects.   For example, his evidence about how he was holding the sword up in the air was hard to reconcile with the wound Mr Manukau suffered. It also seems doubtful that he does not remember seeing Mr Manukau get stabbed, even though he had drunk at least three 330 ml Steinlagers by that time. Deborah Wallace thought he was somewhere between sober and intoxicated, whereas Mr Manukau and Daniel Wallace said he was drunk.

[45]	Despite these doubts, I consider the Crown has not negated beyond a reasonable doubt Mr Broughton’s evidence that Mr Manukau assaulted him on the driveway outside his home causing physical injury to his head. I cannot be sure for the following reasons:

(a)	Mr Manukau clearly reacted badly to the accusation over the work boots. Deborah Wallace’s evidence suggests the argument went on for

20 to 30 minutes. Despite Mr Manukau’s evidence that Mr Broughton was drunk, he followed Mr Broughton across the road and up his driveway and told Mr Broughton that he had “10 minutes to pack your stuff and get out of my grandfather’s house”.

(b)	While this statement may well have angered Mr Broughton, a physical assault such as that claimed by Mr Broughton would seem more likely to have caused Mr Broughton to get a weapon.

(c)	Mr Broughton’s injuries appeared to be consistent with the claimed assault. Police witnesses to the injuries did not suggest otherwise and there was no medical evidence. Mr Manukau noticed before he was stabbed that Mr Broughton had blood all over his face. Although the Crown suggested that Mr Broughton had injured himself earlier when he fell off Daniel Wallace’s deck, Mr Manukau was the only witness to any such fall and he did not say that he saw Mr Broughton injure himself or that he noticed any injuries or blood during their earlier argument. The Crown’s alternative suggestion that Mr Broughton injured himself after the stabbing before the Police arrived was not supported by any evidence.

(d)	Mr Broughton has consistently claimed he was pushed over since his first statement to police at the scene. Some discrepancies in his accounts to police may be explicable on the basis he had been awake for almost 24 hours by the time his recorded police interview finished and had been drinking.

(e)	Mr Manukau’s evidence was also not persuasive in some respects. First, he denied visiting Mr Broughton on the Sunday and asking to borrow his boots, but I consider it likely that he did. Otherwise, there would be no reason for the Broughtons to accuse him early on Monday morning. Secondly, when cross-examined about  his  evidence  that Mr Broughton came out of Daniel Wallace’s portacom with his boots, Mr Manukau said for the first time that Daniel Wallace’s girlfriend had

come over and grabbed the boots from Malcolm Wallace and took them to Daniel Wallace’s portacom while Mr Broughton was in there. Thirdly, Mr Manukau’s denial that in  2014  he  had  also  talked  to Mr Broughton about why he was still in Mr Manukau’s grandfather’s house  was  somewhat  undermined  by  Mr Tana’s   evidence   that Mr Manukau  was  belittling  Mr Broughton  because  he   was   in  Mr Manukau’s grandfather’s house.

(f)	Daniel Wallace’s eye-witness evidence of the argument on the driveway was not conclusive. He may have missed seeing the assault. It was also suggested that he had not seen anything and his evidence was based on what other people said. Mrs Broughton said that Daniel Wallace (her son) had told her that he never saw Mr Broughton do anything to Mr Manukau. Also, Daniel Wallace did not mention to the police when interviewed on the evening of the incident what he told them the next day and said in evidence, namely that Mr Broughton had said to him “if Uncle Son doesn't give my effin boots back then I’m going to stab him”, and, “I don’t care if I go to jail for murder”. If said, that was a significant omission in his police statement. Mr Broughton denied going into Daniel Wallace’s portacom and saying this.

(g)	The Crown suggested that if Mr Manukau had assaulted Mr Broughton as alleged, Mr Broughton would not have been able to get away. However, this assumes Mr Manukau did not let him get up after the assault.

Whether the assault by Mr Manukau, as alleged by Mr Broughton, involved the pushing of Mr Broughton’s head into the stones of the driveway on two or three occasions causing injury

[46]	I also have doubts that the assault by Mr Manukau involved the pushing of Mr Broughton’s head into the stones of the driveway on two or three occasions causing injury. Mr Broughton did not mention this in his first statement to police at the scene. Even so, for the same reasons as in the previous paragraph, I consider the Crown has not negated Mr Broughton’s evidence beyond a reasonable doubt.

Whether Mr Manukau followed Mr Broughton into his house and sought to gain entry through an internal door into the house

[47]	I doubt that Mr Manukau followed Mr Broughton into his house and sought to gain entry through an internal door into the house. Mr Broughton did not mention this in his first statement to police at the scene. It seems likely, if Mr Manukau had chased, he could have pushed the internal door open before it was locked.  Again, however,  I cannot be sure (to negate beyond a reasonable doubt), for the following reasons:

(a)	Mr Manukau’s evidence on this point is not intrinsically to be preferred over Mr Broughton’s.

(b)	I have some doubt whether Daniel Wallace could see the garage from his position in the kitchen across the road given the angle.

(c)	Deborah Wallace said she thought that Daniel called out “uncle’s bleeding” about 20 to 30 minutes after the argument on the driveway, substantially longer than the minimal period inside referred to by others.

(d)	Mr Broughton did mention this to the detective during his recorded interview later that night.

When in the house, whether Mr Broughton feared Mr Manukau was intending to break into the house and use further violence against him

[48]	I also doubt that, when in the house, Mr Broughton feared Mr Manukau was intending to break into the house and use further violence against him, but I cannot be sure, for the following reasons:

(a)	As indicated above, I cannot be sure that Mr Manukau did not assault Mr Broughton on the driveway and seek to follow him into his house.

(b)	I cannot entirely discount Mr Broughton’s evidence regarding the noise he said he heard when he was inside his house, although the ranchslider did not lock so it seems unlikely Mr Manukau tried to open it.

(c)	I cannot rule out that Mr Manukau pushed Mr Broughton off a deck in 2014 causing Mr Broughton physical injury to his head. As mentioned, Mr Manukau’s evidence about the 2014 incident was somewhat undermined by Mr Tana’s evidence that Mr Manukau was belittling Mr Broughton.

Whether Mr Broughton in an initial response in coming to the entry of the garage door with the sword did so to protect himself

[49]	The final defence issue is whether Mr Broughton in an initial response in coming to the entry of the garage door with the sword did so to protect himself.9 I find this hard to believe. In Mr Broughton’s police interviews, he indicated a mix of anger and fear. He said he wanted to kill Mr Manukau. If he was actuated by fear rather than anger, it would seem more likely he would have stayed in his bedroom. If alcohol was  a  factor,  he may have felt  more  anger than  fear at  the  time.  In  any event,  if Mr Manukau thought he was drunk and saw him when he initially came out of the garage, rather than being surprised from behind, it seems unlikely Mr Manukau would have walked towards him while he was waving the sword. But I cannot be sure that Mr Broughton initially came out with an intention other than to protect himself.

Whether Mr Broughton was intoxicated

[50]	This disputed fact is neither aggravating nor mitigating and need not be addressed further.

Whether Mr Broughton left the driveway and went into his home for the purpose of retrieving the samurai sword

[51]	I consider it was not clearly established whether Mr Broughton decided to retrieve the samurai sword before he went inside. That could be inferred if he were only inside for as long as it took to retrieve it but, as indicated, Deborah Wallace’s evidence cast some doubt on the minimal time period Mr Broughton was inside.

9	Excessive self-defence reducing the seriousness of the GBH offending is where the attack initially commenced as an effort to defend oneself (or another): R v Taueki [2005] 3 NZLR 372 (CA) at [32](b).

Whether Mr Manukau’s actions, as alleged by Mr Broughton, were an operative cause of Mr Broughton’s actions against Mr Manukau

[52]	The Crown raises this final question as to whether Mr Manukau’s actions,    as alleged by Mr Broughton, were an “operative cause” of Mr Broughton’s actions against Mr Manukau. As indicated in Wairau,10 operative cause is a relevant factor but is not determinative of culpability in relation to provocation in sentencing. At this stage, it is sufficient to conclude that, for the reasons given above, I cannot rule out that there was provocation by  Mr  Manukau  which  was  an  operative  cause  of  Mr Broughton’s actions. As indicated, the weight to be attached to the proved facts is to be assessed at sentencing.

Mr Broughton’s second lunge towards Mr Manukau

[53]	Returning  to  the  disputed  aggravating  facts,   the   Crown   first   asserts Mr Broughton’s second lunge towards Mr Manukau after pulling the sword from his neck.  I cannot be sure this occurred  given the  conflict between the  accounts of   Mr Manukau and Mr Broughton. Daniel Wallace did not refer to this.

Threat to kill

[54]	The Crown also asserts as a disputed aggravating fact Mr Broughton’s threat to kill according to Daniel Wallace’s evidence: “if Uncle Son doesn't give my effin boots back then I’m going to stab him”, and, “I don’t care if I go to jail for murder”. Daniel Wallace was not challenged on that point, but Mr Broughton denied going into Daniel’s portacom and making the statement. As I have noted, Daniel Wallace did not mention this to police when interviewed on the evening of the incident. If the statement were made to him, that was a significant omission in his police statement. Given this and the other aspects of his evidence I have mentioned, his evidence does not make me sure that Mr Broughton made this statement.

Conclusion

[55]	I conclude in relation to the disputed facts that:

10	Wairau v R [2015] NZCA 215 at [29].

(a)	The verbal argument over  the  theft  of  a  pair  of  work  boots  on  12 February 2018 started across the road outside Malcolm Wallace’s portacom.

(b)	Mr Manukau followed Mr Broughton to his home on Karakanui Road. The Crown  has  not  negated  beyond   a   reasonable   doubt   that  Mr Manukau assaulted Mr Broughton on the driveway outside his home causing Mr Broughton physical injury to his head.

(c)	The Crown has not negated beyond a reasonable doubt that the assault by Mr Manukau involved the pushing of Mr Broughton’s head into the stones of the driveway on two or three occasions causing injury.

(d)	The Crown has not negated beyond reasonable doubt that Mr Manukau followed Mr Broughton into his house and sought to gain entry through an internal door into the house.

(e)	The Crown has not negated beyond reasonable doubt that, when in the house, Mr Broughton feared Mr Manukau was intending to break into the house and use further violence against him.

(f)	The  Crown  has   not   negated   beyond   reasonable   doubt   that   Mr Broughton, in an initial response in coming to the entry of the garage door with the sword, did so to protect himself.

(g)	It was not clearly established whether Mr Broughton decided to retrieve the samurai sword before he went inside.

(h)	I cannot rule out that there was provocation by Mr Manukau which was an operative cause of the violence inflicted by Mr Broughton.

(i)	The Crown has not proved beyond reasonable doubt that Mr Broughton lunged a second time at Mr Manukau.

(j)	The Crown has not proved beyond reasonable doubt that Mr Broughton threatened to kill Mr Manukau.

Gault J