Self-defence claim in brother murder trial

Patrick Allan Daken acted in self-defence when he stabbed his brother 12 times in the chest, back and head in a fight at the family home in Canterbury, his counsel said today.

Daken is appearing in the High Court at Christchurch accused of murdering Kelly at Port Levy, 45km south-east of Christchurch, on June 10 last year.

Daken's defence team told the court today he was attacked with lethal force by his brother who was wielding a metal poker and threatening to kill him.

Defence counsel Andrew McKenzie said the defence of self-defence was available to every citizen.

"Killing is not murder and this crown case is based on that central flaw."

Patrick Daken was sitting at home when Kelly launched his attack, thrashing him around the leg with a metal fire poker, Mr McKenzie said.

Kelly Daken then started to choke his brother, all the while chanting: "I'm going to kill you Patrick."

Prosecutor Tim Mackenzie said the crown accepted that Kelly Daken attacked Patrick and said he was going to kill him, but the only injuries he inflicted were a couple of red marks on the leg and a bite mark on the finger.

He said that after the attack began, another brother – Warren Daken – took the poker off Kelly and threw it on the couch.

The attack continued, and Warren pulled Kelly off his brother again and threatened to call police.

He was outside getting the phone from a camper van when Patrick came out of the house and said he had just killed Kelly.

They went back inside and Patrick kicked, yelled, and stomped on his brother as he lay on the floor.

He did not check him or try to get help, Mr Mackenzie said.

He told the court pathologist Martin Sage would say there were 12 stab wounds in Kelly's body. Five wounds were in the upper chest and penetrated the chest cavity.

One wound to the skull was 5.5cm deep and penetrated the brain. Abrasions from kicking and stomping were also evident.

Mr Mackenzie said Patrick Daken would be guilty of murder if it was proved beyond reasonable doubt that he intended to kill his brother when he stabbed him.

He would also be guilty of murder if he intended to cause bodily injury that was likely to cause death and was reckless as to whether death ensued.

A person was permitted to use reasonable force in defence of themselves or another person.

The trial is continuing.

- NZPA