Gunman provoked into killing brother - jury

David Bourke. Photo / Supplied

A man who killed his brother and shot a farmer while on the run has been found not guilty of murder.

David Bourke, a 48-year-old Wanganui meatworker, killed his brother Timothy and wounded a farm worker in October last year.

Bourke pleaded not guilty to the murder, arguing that he was provoked when his brother begged him to end his life.

His use of the provocation defence could be the last time it is used in New Zealand's legal history.

It was repealed by Parliament last November but Bourke was still able to use it because his offending took place before the legislation was changed.

The jury returned its verdict at the Palmerston North High Court yesterday after eight hours of deliberations, finding David Bourke guilty of manslaughter.

During the trial, the Crown said David Bourke shot his brother three times at close range, twice in the chest and once under the chin while he was sitting in the back seat of a car.

He was stopped by police while driving through Dannevirke and pulled a shotgun on an officer.

Following a crash north of Norsewood in southern Hawke's Bay, David Bourke fled on foot carrying a shotgun, leaving his brother's body in the backseat.

He was found in a golf club toilet block 40 hours later.

The Crown argued his actions were planned and amounted to murder.

Prosecutor Ben Vanderkolk said that even if Timothy had asked to be killed, it still remained a deliberate killing.

"No matter how desperate he might have felt, it's still murder because he meant to kill."

However, the defence said both brothers had suffered from depression and David Bourke had been provoked into pulling the trigger following Timothy Bourke's continual pleas for his brother to end his life.

"He lost his power of self control, he could no longer restrain himself or keep his emotions or his will in check ... It was the relentless pressure from his brother Timothy, his constant unremitting pleas to put him out of his own pain and suffering," lawyer Mike Antunovic said.

The provocation defence was abolished by the Government last year but was available to David Bourke because the alleged offence took place before the law change.

- NZPA, staff reporter