PRICE v R [2021] NZCA 568

PRICE v R [2021] NZCA 568 [29 October 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA258/2018[2021] NZCA 568BETWEEN MARTIN GRANT PRICEAppellantAND THE QUEENRespondentHearing: 27 September 2021Court: Cooper, Venning and Palmer JJCounsel: R M Mansfield QC for AppellantS K Barr for RespondentJudgment: 29 October 2021 at 11 amJUDGMENT OF THE COURTA The application to admit fresh evidence is declined.B The appeal against conviction is dismissed.C The appeal against sentence is allowed.D The minimum period of imprisonment of 17 years is quashed and replacedwith 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 foundMr Price guilty of murder following a trial in the Nelson High Court. In doing so thejury rejected Mr Price's defence of self-defence. Dobson J found that s 104 of theSentencing Act 2002 was engaged and sentenced Mr Price to life imprisonment witha 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 atNelson Haven. Mr Price and Mr Morton were known to each other. They had fallenout over a relatively minor debt. Both used alcohol and drugs. In the early hours ofthe morning on 4 August 2016, Mr Price went from the Nelson CBD, where he hadbeen drinking, to the estuary where Mr Morton lived on his boat. Mr Price thought hemight 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 boatbut progressed to the ground around the boat. During the course of the fightMr Morton suffered seven stab wounds and a number of blunt force injuries. Mr Priceleft the scene and returned to the Nelson CBD. He was seen on CCTV footage backin Nelson at 3.20 am. He appeared to have blood on his pants and to have a slightlimp. 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 boatsmoored in the estuary. He was curled up in a foetal position on his right-hand side inthe 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 leftside of his chest, two stab wounds to the back of his neck, lacerations to his left jawline between the ear and chin, a large wound to his right upper wrist, and lacerationsto 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 startedon the deceased's boat, it moved to an adjacent derelict boat, also owned by the1 R v Price [2018] NZHC 811 [High Court judgment].deceased. From there the blood trail led to a third vessel owned by a friend of thedeceased which was where his body was ultimately found.[6] When the police first spoke to Mr Price, he denied killing Mr Morton and saidhe 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 anarrative 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 thatMr Morton had reacted aggressively to his arrival and had punched him. Mr Pricesaid that he then punched Mr Morton back, and at that stage Mr Morton had produceda 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 hedropped the knife. A wrestle on the ground followed. Mr Morton ended on top ofMr Price, choking him. Mr Price then grabbed the knife and struck out at Mr Mortonwhich he said must have been when the stab wounds were inflicted. Mr Morton thengrabbed a piece of wood to attack Mr Price again. Mr Price defended himself againwith 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 Mortonwas 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 blowsto Mr Morton.[9] The pathologist's evidence suggested Mr Morton could have been alive forquite some time from when the stab wounds and other injuries were inflicted until hedied. That was supported by the deceased's attempt to forcibly enter the cabin of theboat where he was found.[10] The defence case closed to the jury on the basis Mr Price was acting inself-defence. If the jury considered his use of force was not reasonable then it wassubmitted 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 ofMr McCreath, a prisoner who had been in custody at Christchurch Prison withMr Price while he was on remand awaiting trial. Mr McCreath gave evidence thatMr Price had confessed to him that he had stabbed Mr Morton and described the knifethat he had used. He also said that he had kicked and stomped Mr Morton while hewas 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 andMr McCreath. Mr Drake said that Mr McCreath had told him he was going to setMr 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,2Mr McCreath's evidence should not have been admitted at trial;(b) if Mr Drake's evidence had been called at trial, it would have provideda further basis for ruling Mr McCreath's evidence inadmissible; and(c) the trial Judge's directions to the jury about Mr McCreath's evidencewere inadequate.[14] Mr Mansfield submitted that the admission of Mr McCreath's evidence and theinadequacy of the directions led to a miscarriage of justice. In terms of s 232(4) of theCriminal Procedure Act 2011 there was a real risk that the outcome of the trial wasaffected. 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 theSentencing Act applied. He considered that both s 104(c), the home invasion2 Roigard v R [2020] NZSC 94, [2020] 1 NZLR 338.provision, and s 104(e), the brutality provision, were engaged. The Judge did notconsider 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 toengage s 104 were made out. The murder had not involved the unlawful entry onto orunlawful presence in a dwelling place. Nor had the murder involved the necessaryhigh 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 notavailable at the time of Mr Price's trial.3 The issue before the Supreme Court inRoigard was whether the evidence of Mr F and Mr W (both of whom were prisoninformants) should have been excluded under the Evidence Act 2006. In grantingleave to appeal, the Court had confirmed it was not revisiting its decision in Hudson vR that there was no presumption of inadmissibility of such evidence.4[18] In both appeals the Court did, however, consider the approach to the exclusionof evidence from prison informants and particularly to what extent issues of reliabilitycould be considered in determining whether under s 8(1) of the Evidence Act theprobative value of the evidence was outweighed by the risk of unfair prejudice.5 Themajority in Roigard concluded there had been no illegitimate prejudice from theadmission of the evidence of Messrs F and W. Whether the disputed part of Mr F'saccount was credible and reliable was a matter for the jury, who had the full pictureabout his incentives and history of dishonesty before them. Much of Mr F's evidencehad 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 likewise3 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; andW (SC38/2019) v R, above n 3, at [87]–[89] per Glazebrook, O'Regan and Ellen France JJ.for the jury and the probative value of the evidence favoured its admission in terms ofthe s 8 analysis.[19] In W (SC38/2019) v R the Court confirmed that exclusion of evidence under s7 of the Evidence Act on the basis of lack of reliability was to be confined to caseswhere the evidence was so unreliable that it could not be accepted or given any weightat all by a reasonable jury. This could be because: (a) it would be speculative to acceptthe evidence; or (b) even taken at its highest, the fact-finder could not reasonablyaccept the evidence as tending to prove or disprove anything that was of consequenceto the determination of the proceeding.6[20] Mr Mansfield's high-level submission that the current approach was aninadequate response to a "gross and prolific infection of evidence that strikes at thecore of an individual's fair trial rights" is a direct challenge to the decision of theSupreme Court in Hudson. This Court must apply Hudson.[21] Mr Mansfield then submitted that the cross-examination of Mr McCreathestablished that he had manufactured his meetings with Mr Price with a view toreporting to police entirely for his own advantage and that Mr McCreath had access toMr Price's disclosure which he used to bolster his evidence. While accepting that hehad not challenged the admission of the evidence prior to trial, Mr Mansfieldsubmitted that, after cross-examination, Mr McCreath's reliability had beenundermined to the point where the jury should have been told to disregard hisevidence. It was so unreliable it could not satisfy the test for admission as relevant.[22] Mr Mansfield noted that Mr McCreath's evidence assumed particularimportance because Mr McCreath's narrative had provided the Crown with a basis forcross-examination of Mr Price. Without it, there was no narrative other thanMr Price's explanation for what had occurred that night. There were no othercircumstances in the evidence to rebut self-defence. That submission howeveroverlooks the extent of the injuries to Mr Morton that were confirmed by forensicevidence and the comparison of those injuries with the rather limited injuries sustainedby Mr Price himself (the limp and scratches to his face and lip).6 W (SC38/2019) v R, above n 3, at [41].[23] Mr Mansfield supported that submission by noting that the pathologist,Dr Sage, had accepted under cross-examination that a number of the injuries sustainedby 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 lesionsI think makes it unlikely that simply somebody falling from a standing heightand landing on their back, there is likely to have been more force than thatinvolved in those, but some of the abrasions on the back of his arms or backof 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 hiscross-examination of Mr McCreath established he had access to at least 80 or 90per cent of police disclosure and was thus able to add a degree of credibility to hisstatement to the police. Mr Mansfield suggested that Mr McCreath's attempts toimprove his position were apparent from the evidence of the detectives who spoke tohim.[25] We consider there is force in the Crown's response to this point that it appearsfrom the cross-examination that counsel and Mr McCreath were at cross-purposeswhen referring to the first meeting. It appears Mr McCreath was referring to a meetingwith Detective Brad Greenstreet, while Mr Mansfield was referring to the first of twomeetings Mr McCreath had with Detective Hauschild.[26] As Mr Barr pointed out, Mr McCreath dealt with two detectives. He initiallycontacted the police via Crimestoppers and he spoke first to an officer known as"Brad" (Detective Greenstreet) on 3 July 2017. At that meeting Mr McCreathprovided 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. Helater spoke again to Detective Hauschild by telephone before meeting with him onanother occasion, on 11 September 2017. By the date of that first meeting withDetective Hauschild, Mr McCreath had seen the disclosure, but he said he had notseen it before he met with Detective Greenstreet in July. In the statement taken fromMr McCreath on 11 September 2017, Mr McCreath is recorded as saying it was abouta 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 thatat least some of the information Mr McCreath recounted had come directly fromMr Price. Aspects of Mr Price's case which Mr McCreath told the police about werenot available from disclosure, such as Mr Price's statement that the deceased hadpunched him to the face and that he had stabbed Mr Morton four times. Mr McCreathreferred to both matters in his statements to the police. He could not have obtainedthat information from reading Mr Price's disclosure because Mr Price had not made astatement to the police when spoken to initially. Mr Price must have told Mr McCreathabout both those matters.[28] Mr Barr submitted that Mr McCreath's evidence had not been undermined bycross-examination and made the point that, while Mr McCreath had a history ofdishonesty and was incentivised to give evidence (he ultimately received a six-monthreduction in sentence for his assistance) the same features were present in the case ofwitness Mr F in Roigard. The relevant information about Mr McCreath was beforethe jury.[29] Mr McCreath's evidence was directly relevant to Mr Price's defence ofself-defence.[30] Whether Mr McCreath's account was credible and reliable was a matter for thejury who had the full picture about Mr McCreath's motivation for giving evidence, theactual incentive for doing so and his history of dishonesty.[31] For completeness, we record that the Crown had also intended to call evidencefrom another prisoner. This was a Mr Singh who had provided a statement to policeand had apparently received a 19-month reduction in his sentence for sexual violationin exchange. However, ultimately the Crown elected not call Mr Singh so his evidencedid not feature in the trial. Mr Mansfield was able to make good use of that fact in hisclosing address to the jury as part of his challenge to Mr McCreath's evidence. Henoted that the Crown had referred to Mr Singh in opening but had not called him. Hesubmitted that Mr McCreath had "stuck his hand up" and wanted to speak to the policeknowing the benefits he might get because he had seen the benefits derived byMr Singh.[32] In summary, however, for the above reasons we reject the submission thatMr McCreath's evidence was undermined by cross-examination to the extent that itwas so unreliable it was inadmissible and the jury should have been directed todisregard it entirely.The new evidence[33] Mr Mansfield's next submission was that, even if the Court rejected his firstchallenge to Mr McCreath's evidence, Mr Drake's evidence completely underminedMr McCreath's credibility so that it can now be concluded the admission of hisevidence had occasioned a miscarriage.[34] The appellant obtained an affidavit from Mr Drake to support his case thatMr McCreath was a dishonest witness and had given a false account of his discussionwith 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 setMartin up.Mark told me he was going to make up information about Martin's case andthat he would take that information to the Police in the hope of getting an earlyrelease.[36] And later:I am aware from conversations that I had with Mark that he was intending tolie about the knife and tell the Police that Martin admitted taking the knifewith him to where the guy was killed.Using the information that Mark got from Martin directly and through readingthe disclosure, Mark was able to mix in a certain amount of truth with the liesto 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 someof his offending. In addition, by consent, the Court was presented with the notes thatMr McCreath had made before speaking to Police. Both Mr Drake andDetective Hauschild were cross-examined before us.[38] The first issue is whether the evidence of Mr Drake should be admitted for thepurposes of the appeal. The principles dealing with admissibility of further evidenceon appeal are settled. In Lundy v R the Privy Council approved the approach of thisCourt in R v Bain:7 [T]he proper basis on which admission of fresh evidence should be decidedis by the application of a sequential series of tests. If the evidence is notcredible, it should not be admitted. If it is credible, the question then ariseswhether it is fresh in the sense that it is evidence which could not have beenobtained for the trial with reasonable diligence. If the evidence is bothcredible and fresh, it should generally be admitted unless the court is satisfiedat that stage that, if admitted, it would have no effect on the safety of theconviction. If the evidence is credible but not fresh, the court should assessits strength and its potential impact on the safety of the conviction. If itconsiders that there is a risk of a miscarriage of justice if the evidence isexcluded, 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 anallegedly false statement about him before his trial. During the course of his evidenceMr 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 inMr Price's evidence, Mr Drake said that before the trial he had told Mr Price thatMr McCreath might give evidence against him.7 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120]. See also at [117]–[119], citing R v Bain[2004] 1 NZLR 638 (CA).[41] Further, the tone of the letters written by Mr Drake to Mr Price following thetrial suggests Mr Drake had prior knowledge that Mr McCreath was going to giveevidence against Mr Price. It is consistent with both Mr Drake and Mr Price havingbeen aware of that issue prior to trial.[42] With reasonable diligence, Mr Price could have had Mr Drake called as awitness at his trial. He had the opportunity to raise the matter with his counsel and tocall Mr Drake if it was thought that might assist him. However, despite it not beingfresh, if the evidence had otherwise been credible and sufficiently cogent, we wouldhave 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 hisaffidavit, on a number of occasions Mr Drake has attempted to conceal or destroyevidence and given false details to the police.[44] During cross-examination Mr Drake declined to answer when the propositionwas put to him by Mr Barr that he had in the past attempted to have others give falseaccounts in order to improve his position or avoid criminal liability. The evidence ofrecorded calls made by Mr Drake suggested strongly that he had tried to haveassociates make false statements or affidavits on his behalf to provide a defence to thecharges he faced at the time. While Mr Drake was within his rights not to answer thequestion, the Court is entitled to (and does) draw an adverse inference from his refusalto answer those questions.[45] Next, Mr Drake candidly admitted that he had in the past given false detailsand information to pretend calls he was receiving were from a lawyer in order to avoidhaving the calls recorded.[46] Finally, although Mr Drake did not accept it, his letters to Mr Price could beopen 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 toMr McCreath's evidence. As Mr Barr submitted, if Mr Drake had been called thedefence would have been inviting the jury to rely on Mr Drake's evidence about thecell mate discussions he had with Mr McCreath but urging them to rejectMr McCreath's evidence about his cellmate discussions with Mr Price. The jurywould have been drawn into a battle of credibility between the two which is unlikelyto have assisted the defence. In the absence of Mr Drake's evidence, the focus at trialwas 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 toone side.Directions[50] The Judge dealt with the warning regarding Mr McCreath's evidence asfollows:[86] The next thing I want to say to you is a caution about the cell mateconfession. Mr Mansfield spent some time both criticising the fact that theCrown called Mr McCreath and urging you that you couldn't believe a wordof it. And I give you these cautions. You should look at his evidence withcare 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 McCreathfrankly acknowledged that there was such an incentive. You should bear inmind that there may be an incentive to give evidence that's not true.[88] Secondly, did you find there to be any animosity betweenMessrs McCreath and Price? If so, you should be wary of evidence that mighthave been given as a form of pay-back. Getting even may include evidencewhich is untrue.[89] Thirdly, do the circumstances of Mr Price's statements toMr McCreath sound genuine, or was it – if you do accept what Mr McCreathattributes to Mr Price – was it just foolish bravado? And believe me, it's notunknown for people remanded in custody to claim involvement in seriouscriminal activities that they have nothing to do with as a way of increasingtheir status within the prison. So assess whether any statements that you findMr Price did make to Mr McCreath were any more than a matter of himshowing off.[90] Fourthly, how reliable was Mr McCreath's recollection of what wasin fact said? How long was it before there was any record in writing and howinternally consistent were the recollections of the statements made to him byMr Price? In weighing this up, you should consider whether Mr McCreathcould, at the time he reported the conversations to the Police, have obtainedthe details from other sources. And in particular what I'm referring to there isMr Mansfield pressing him about how long he had the disclosure and waseverything that he said attributed to Mr Price – was everything attributed toMr Price available to him from the disclosure. That's probably a difficultquestion for you but it is a factor.[921] So, as with all the evidence, what you make of the evidence of theso-called cell mate confession is entirely for you, but before placing relianceon it, I'd ask you to test it against those additional cautions – those four I'vejust outlined.[51] Mr Mansfield submitted that in light of this Court's comments in Baillie v Rthe 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 morethan summarising the propositions to be extracted from the decisions of the SupremeCourt in Roigard and W (SC38/2019) v R. Not all the considerations will apply in eachcase. Importantly, the introduction to the various considerations stated:For such witnesses [prison informants] a trial judge should consider whetherto direct the jury:[53] Then at [60] this Court confirmed that it remains the case that directions arenot mandatory and in particular there is no general requirement that juries be warnedthat prison informant evidence may lead to miscarriages of justice.[54] Mr Mansfield's submission on this point was largely one of emphasis. Heargued that the Judge should have referred to the true nature of the incentive andemphasised the point that Mr McCreath had access to Mr Price's disclosure. He alsorepeated his submission under the first ground of appeal that the jury should have beentold to put the evidence to one side.8 Baillie v R [2021] NZCA 458.[55] As noted, this Court set out the jury directions a judge should consider inBaillie.9 In brief, these are the effect of promises or expectations, delay or incentivesin any disclosure, weaknesses in the evidence including implausibility andinconsistency, the source of the witness' information in the context of police dealingswith that person, mistakenly attributing veracity to the witness' evidence withoutappropriate regard for incentives, and exercising caution in the ultimate assessment ofreliability.[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 didapply in the present case or may have expressed them differently, the relevant pointsand the cautions that applied particularly to Mr McCreath's evidence in this case werecovered in the Judge's direction.[58] Importantly, Dobson J's direction to the jury focused on the two principalpoints made in the cross-examination of Mr McCreath, namely that he wasincentivised 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 havehad a reason to falsely make up allegations against Mr Price and whether Mr Pricehimself, 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 ofMr McCreath's evidence and reminded the jury they should treat the evidence withcare.[60] Finally, we also note that counsel did not raise any issue with the Judgefollowing the summing up on this point.[61] For the reasons given above, this was not a case where it was necessary todirect the jury to ignore the evidence of the witness.[62] This ground of appeal also fails.9 At [59].Sentence Appeal[63] In finding that s 104(1)(c) of the Sentencing Act was engaged, the Judge notedMr Price had gone to Mr Morton's boat at around 3.00 am, a time when Mr Mortonwould not have been expecting a visitor and would have been taken by surprise. Whileaccepting it was not a classic "home invasion", the Judge treated the whole of the boatas a dwelling place.10 Dobson J was also satisfied that s 104(1)(e) was engaged aswell. While it was not at the highest level of brutality or callousness, the killing was asavage and prolonged beating which involved a high degree of brutality. He noted thesignificant difference in the level of wounds inflicted on the deceased compared withthe minor injuries apparently sustained by Mr Morton.11 Dobson J did not consider itwould 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. Hesubmitted that Mr Price had an implied licence to go to Mr Morton's boat. There wasno unlawful entry and nor was his presence there unlawful. While the fight may havestarted on the boat it was initiated by Mr Morton and it seemed clear that the fatalinjuries had been struck off the boat. Further, there was nothing in the circumstancesof the killing that qualified this as being particularly brutal or callous. He referred thisCourt to a number of other homicide cases involving multiple stab wounds wheres 104 had not been applied.[65] Section 104 as relevant provides:(1) The court must make an order under section 103 imposing a minimumperiod of imprisonment of at least 17 years in the followingcircumstances, unless it is satisfied that it would be manifestly unjustto do so:(c) if the murder involved the unlawful entry into, or unlawfulpresence in, a dwelling place; or10 High Court judgment, above n 1, at [20]–[22].11 At [26].12 At [34].(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 dwellingplace is a factual inquiry to be resolved in the particular circumstances of the case.13As a starting point, we accept that the deck of Mr Price's boat could be regarded aspart of his dwelling place. We would not restrict the dwelling place to the cabin onthe boat. The deck was partially enclosed. It had sides to it and Mr Price had to climbup on to it.[67] Dobson J considered Mr Price may have been unexpected and uninvited, butthat does not lead to the conclusion that he unlawfully entered Mr Morton's dwellingplace. There is no evidence that Mr Price went there intending to commit a crime orto cause Mr Morton harm. The more difficult issue is whether it could be said thatonce the fight broke out his presence there became unlawful or if it could be said thatthe murder which took place away from Mr Morton's boat "involved" his unlawfulpresence on the deck of the boat. As noted, the forensic evidence suggests that thefatal injuries were sustained after both had left Mr Morton's boat. The evidence aboutwhere exactly the injuries were inflicted is uncertain. All that is certain is that Mr Priceinflicted the fatal blows. However, for reasons we explain below, we do not considerit necessary, in the particular circumstances of this case, to definitively determinewhether 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 stabwounds and some of the blows were potentially fatal and then not immediately so.Given the relationship between the Messrs Price and Morton and their backgroundcircumstances, the escalation of a dispute into a fight may well have been nothingparticularly unusual.[69] There are a number of cases involving more serious assaults and stabbingswhere the Court has not applied s 104. It is sufficient to highlight the following. In13 R v Clarke [2000] 3 NZLR 354 (CA) at [12]; and Pahau v R [2011] NZCA 147 at [73].Fraser v R a 12-year MPI was imposed for a stabbing incident which involvedpremeditation and pre-emptive arming with a knife in a context where a Mr Selby andhis associates had hunted the deceased down and challenged them to a fight.14 Therewas no suggestion the level of brutality engaged s 104. In R v Hamiora the killinginvolved an unprovoked extensive beating from two people using a baseball bat beforethe victim was finally stabbed.15 The beating took place inside the house where thevictims had been playing scrabble. The Judge adopted an MPI of 13 and a half yearsbefore considering an allowance for a guilty plea. There are numerous furtherexamples where serious assaults, including stabbing, have not engaged s 104.16[70] Relevantly, the present case did not, on Dobson J's assessment, involvepremeditation. The Judge was also prepared to accept that the knife used wasMr Morton's own knife.17 Although it appears Mr Price did not suffer any significantinjury as a result of the altercation there was a fight between the two of them duringthe course of which Mr Price inflicted the fatal wounds. Unfortunately, such offendingis not uncommon, but in our assessment, it does not reach the level of brutality s 104is intended to address.[71] It is unnecessary to definitively find whether s 104(1)(c) applied in thecircumstances of this case, as we consider that, in any event, it would be manifestlyunjust to impose an MPI of 17 years. Looked at overall, this is not the type of case s104 was intended to apply to. As this Court said in R v Williams, an MPI of 17 yearswill be manifestly unjust where, as a matter of overall impression, the case falls outsidethe scope of the legislative policy that murders with specified features are sufficientlyserious 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 theneed to hold him accountable and to denounce his actions against Mr Morton can bemet by the imposition of an MPI of 14 years in this case.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 AucklandCRI-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 [2005] 2 NZLR 506 (CA) at [67].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 MPIof 14 years.Solicitors:Crown Law Office, Wellington for Respondent