NOTE: HIGH COURT SUPPRESSION ORDERS EXIST IN RELATION TO ASPECTS OF [2021] NZHC 136 PURSUANT TO S 205 OF THE CRIMINAL PROCEDURE ACT 2011: SEE PARAGRAPH [61].
IN THE SUPREME COURT OF NEW ZEALAND
I TE KŌTI MANA NUI O AOTEAROA
SC 75/2022 [2024] NZSC 37
BETWEEN
JUSTIN RICHARD BURKE Appellant
AND
THE KING Respondent
Hearing:
Further Submissions:
20–21 March 2023
24 March 2023
Court:
Winkelmann CJ, Glazebrook, O’Regan, Williams and Kós JJ
Counsel:
J R Rapley KC, S M Grieve KC and S J Bird for Appellant M F Laracy, F R J Sinclair and L C Hay for Respondent C B Wilkinson‑Smith and A M Simperingham for Criminal Bar Association New Zealand as Intervener R J Stevens and E E McClay for Te Matakahi | Defence Lawyers Association New Zealand as Intervener
Judgment:
22 April 2024
JUDGMENT OF THE COURT
A The appeal is allowed.
BWe seek submissions from counsel on the consequential orders that should follow, as set out at [175] of the reasons of the Court.
This is a summary of the reasons of the Court on the issues likely to have importance for other cases, but it must be read in conjunction with the full reasons. While the reasons of the minority judges (Winkelmann CJ and Glazebrook J) are summarised, the reasons of the majority (O’Regan, Williams and Kós JJ) are of course those to be applied in future cases.
Background
This appeal concerns the scope of joint enterprise liability under s 66(2) of the Crimes Act 1961 in relation to culpable homicide. In particular, at issue is what exactly a secondary party to manslaughter must foresee as a probable consequence of the prosecution of the common unlawful purpose they formed with the principal offender.
In this case the appellant, Mr Burke, and Mr Webber, both associated with the Nomads gang, were tasked with punishing the victim, Mr Heappey, who had been disrespectful to the President of the gang. The punishment was to consist of a “mean hiding” but, in fact, Mr Webber repeatedly stabbed Mr Heappey and he died as a result.
Mr Burke was found guilty of manslaughter. The directions given by the trial Judge meant a conviction under s 66(2) was possible if Mr Burke did not know that Mr Webber had a knife and if all Mr Burke foresaw was an assault likely to cause non‑trivial harm. The trial Judge sentenced Mr Burke on the basis that he had been found guilty as a s 66(2) party and that he did not know that Mr Webber had a knife.
The appeal was advanced on the basis that the probable consequence of the prosecution of the common purpose that Mr Burke needed to have foreseen was either:
(a)a stabbing or similarly grave assault; or
(b)an unlawful killing.
The Court is unanimous that the appeal should…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Burke v R [2024] NZSC 37
Case
[2024] NZSC 37
Decision Date
CaseChat Overview and Summary
The Supreme Court of New Zealand heard an appeal brought by Justin Burke against his conviction for manslaughter under section 66(2) of the Crimes Act 1961. The appeal raised questions about the scope of joint enterprise liability in relation to culpable homicide. The Court allowed the appeal on the basis that the trial judge had given incorrect directions to the jury regarding what Mr Burke needed to foresee as a probable consequence of the prosecution of the common unlawful purpose. The Court held that the jury should have been directed that Mr Burke needed to foresee that Matthew Webber would assault Mr Heappey in the manner that actually occurred, which was a stabbing. The Court also held that the jury should have been directed that Mr Burke needed to know that Mr Webber had a weapon. The Court concluded that the directions given were flawed and that the appeal should be allowed. The Court invited the parties to provide submissions on the consequential orders to be made.