A man who fired four gunshots, at least two fatal, into another man who had assaulted him gave no evidence to show he had been provoked then lost control out of fear and panic, the Court of Appeal has ruled.
Sickness beneficiary Colin Richard Warren, who used a shotgun he hadunder his bed, was found guilty of murdering Norman Lama near Ruawai in Northland last November 25.
In his appeal, Warren, aged 36, claimed the trial judge did not direct the jury on the state of Warren's mind, the meaning of recklessness, the need for unanimity about the cause of death, whether the second of the four shots could have killed Lama, and that the defence of provocation was not restricted to loss of self-control out of anger and could be from fear or panic.
The Appeal Court said it was impossible for a pathologist to say whether Lama, 32, was still alive when he was shot for the fourth time.
The jury must have concluded that Warren appreciated the risk, intended to harm Lama and was "reckless in the extreme" in firing the second shot.
There was nothing in his evidence to show self-control was lost from fear and nothing in his description of firing the third and fourth shots to suggest he was acting from anything but anger.
The Crown said nothing said or done from the time of the second shot could have provoked Warren, and the last two could not have been fired into an unconscious man in self-defence.
Warren claimed the first two shots were fired as warnings and the last two under provocation.
Warren, who had muscular dystrophy, said Lama, a large powerful man, asked him for a $7000 loan to buy a car.
When he refused, Warren said, Lama hit him, then threatened to kill him with a knife.
Warren said he started to panic and grabbed the loaded shotgun.
