Burke v R
[2024] NZSC 37
•22 April 2024
| 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 |
| AND | THE KING |
| Hearing: Further Submissions: | 20–21 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 |
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.
____________________________________________________________________
REASONS
| Para No | |
| Summary of Reasons | [1] |
| O’Regan, Williams and Kós JJ | [12] |
| Winkelmann CJ | [177] |
| Glazebrook J | [247] |
SUMMARY OF REASONS
(Given by 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 be allowed, but for different reasons. The majority allow the appeal under the first ground. The minority would have allowed the appeal under the second ground.
First ground
The majority found that, in the circumstances of this case, the jury should have been directed that they had to be satisfied that Mr Burke foresaw as a probable consequence of the prosecution of the common purpose that Mr Webber would assault Mr Heappey in the manner that actually occurred. To do that, they should also have been directed that they needed to be satisfied Mr Burke knew Mr Webber had a weapon.
The majority also found that the trial Judge’s directions were flawed in other respects. First, because the trial Judge had described the common purpose as involving a lesser degree of harm: a “hiding” rather than a “mean hiding”, meaning an assault likely to cause serious harm. Second, because the way the Judge’s question trail was framed meant that the jury may have wrongly understood the requirement for the act causing Mr Heappey’s death to be “in the prosecution of” the common purpose as meaning “at the same time as” and not “in the course of implementing” the common purpose of giving Mr Heappey a mean hiding.
Second ground
The majority rejected the contention that, to be guilty as a party to manslaughter under s 66(2), an accused has to foresee an unlawful killing as a probable consequence of the prosecution of the common purpose. They considered that foresight of death is not required of a principal offender and should not be required of the secondary party either. They did not consider this approach would lead to over‑criminalisation given their conclusion on the first ground.
Winkelmann CJ and Glazebrook J each concluded that the probable consequence Mr Burke needed to foresee was that an unlawful killing would occur. They considered this was consistent with the authorities and with policy, and reflected the actual wording of s 66(2), which requires foresight of the offence (culpable homicide) committed. An unlawful killing is an essential ingredient of a culpable homicide.
Probable consequence
The Court was also asked to revisit the meaning of “probable consequence” in s 66(2). The majority and Glazebrook J refused to do so and endorsed the wording adopted in the present case and in earlier authorities, which defines “probable consequence” as “a substantial or real risk” and something that “could well happen”. Winkelmann CJ disagreed, finding that those other expressions were not synonyms for “probable consequence”, instead preferring “likely” as a synonym for “probable”. All of the Judges agreed that there was merit in the guidance given to juries in Victoria, Australia, which emphasises that the word “probable” is in contrast to merely “possible”.
O’REGAN, WILLIAMS AND KÓS JJ
(Given by O’Regan J)
Table of Contents
| Para No | |
| Introduction | [12] |
| Facts | [13] |
| Charges | [21] |
| Section 66 | [22] |
| Trial Judge’s question trail for the jury | [26] |
| The case under s 66(2) | [31] |
| The relevant offence | [34] |
| Appeal to the Court of Appeal | [36] |
| Appeal to this Court | [37] |
| Recent common law developments | [38] |
| Grounds of appeal | [44] |
| First ground of appeal | [47] |
| Issues | [47] |
| How should the common purpose have been defined in this case? | [50] |
| What direction should have been given on whether the offence was committed in the prosecution of the common purpose? | [58] |
| Guidance on “in the prosecution of the common purpose” was required in this case | [74] |
| What is the meaning of “probable consequence”? | [79] |
| What direction should have been given on Mr Burke knowing the offence was a probable consequence of the prosecution of the common purpose? | [90] |
| Appellant’s submissions | [90] |
| Respondent’s submissions | [94] |
| New Zealand cases | [97] |
| (a) Rapira | [98] |
| (b) Hartley | [103] |
| (c) Vaihu | [114] |
| (d) Edmonds | [124] |
| Overseas authorities | [136] |
| Our approach | [137] |
| Second ground of appeal | [145] |
| Edmonds | [149] |
| Division of views in the Court of Appeal | [151] |
| New Zealand cases | [154] |
| Canadian cases | [162] |
| Australian cases | [163] |
| Our approach | [171] |
| Disposition of appeal | [173] |
Introduction
This appeal raises for consideration some difficult issues about the scope of s 66(2) of the Crimes Act 1961 in relation to culpable homicide. Section 66(2) provides for joint enterprise liability—that is, liability in defined circumstances for the criminal acts of another with whom the defendant has joined to pursue an unlawful purpose. Given the nature of the issues, the Court invited the Criminal Bar Association New Zealand and Te Matakahi | Defence Lawyers Association New Zealand to intervene. Both accepted the invitation, and we record our gratitude for their counsel’s contribution to the hearing.
Facts[1]
[1]A more detailed account of the facts is contained in the judgment under appeal: Burke v R [2022] NZCA 279, (2022) 30 CRNZ 387 (Brown, Mallon and Moore JJ) [CA judgment] at [5]–[25].
Shayne Heappey was an associate of the Nomads gang in Christchurch. He was in a dispute with Leonie Cook regarding his use of a stolen car claimed by Ms Cook and a sum of money that he owed to Ms Cook (about $300). Ms Cook was the stepdaughter of the president of the Christchurch Nomads, Randall Waho. Mr Heappey ignored repeated attempts to meet to discuss the dispute, in circumstances which were seen as a sign of disrespect for Mr Waho. It was decided that Mr Heappey needed to be punished. Mr Heappey appeared to accept this, and told Mr Waho that he would come over to collect his punishment.
After some false starts when Mr Heappey failed to appear, he was eventually brought to the address of Richard Sim, another member of the gang, on the night of 8 December 2018. The plan was that the Nomads’ disciplinarian, Matthew Webber, and the appellant, Justin Burke, would give Mr Heappey a “hiding”.[2]
[2]In his police statement, Mr Burke admitted the purpose was to give Mr Heappey a “mean hiding”.
Although Mr Burke was an associate of the Nomads elsewhere, he had recently arrived in Christchurch when the events leading to Mr Heappey’s death unfolded. He aspired to becoming a patched member of the Christchurch Nomads.
Mr Webber had a reputation as a violent and unpredictable man, a characteristic exacerbated by methamphetamine use. There was some dispute about how much Mr Burke knew of Mr Webber’s reputation, but the jury was not asked to resolve this in the Judge’s directions and we do not think we need to form a view on it to resolve the legal issues arising on the appeal.[3]
[3]The Judge found Mr Burke knew Mr Webber was “prone to violence” and “often crazy and out of control”: R v Burke [2021] NZHC 136 (Osborne J) [HC sentencing notes] at [13].
There was evidence that, earlier in the evening, Mr Sim gave knives to Mr Waho and Mr Webber in Mr Burke’s presence and Mr Webber showed Mr Burke how duct tape could be added to the blade to prevent it bending when used. The Crown case was that Mr Burke was aware that Mr Webber was armed with a knife at the time of the planned hiding. The defence disputed this: its case was that Mr Burke did not know Mr Webber had a knife at the relevant time. In sentencing Mr Burke, the Judge accepted that the Crown had not established Mr Burke knew for sure that Mr Webber had a knife on him at the time, but that he knew his possession of a knife was a “distinct possibility”.[4]
[4]At [14].
After Mr Heappey was brought to Mr Sim’s house late on 8 December 2018, there was some evidence that Mr Burke accompanied Mr Webber out of the house to administer the hiding.[5] Given that Mr Heappey was associated with the same gang as the other protagonists, the appellant asked us to assume that there was no intention that the hiding Mr Heappey was to receive would involve more than a punishment commensurate with the minor infractions involved. We were asked to contrast this with other gang violence cases where the two sides are from different gangs hostile to each other, where an escalation of violence may well happen.
[5]There was some disagreement about whether Mr Burke went outside with Mr Webber to administer the hiding or whether he remained inside and came outside at a later point. At sentencing, Osborne J proceeded on the basis that Mr Burke accompanied Mr Webber when Mr Heappey was escorted outside for punishment: at [14] and [28]. Nothing in this judgment turns on this factual point.
What in fact happened then was that Mr Webber stabbed Mr Heappey repeatedly. Mr Burke punched and put Mr Heappey in a chokehold. There was evidence that Mr Burke stopped attacking when he realised that Mr Heappey had been stabbed. In sentencing Mr Burke, the Judge accepted the Crown had not established Mr Burke had been able to see Mr Webber had stabbed Mr Heappey.[6]
[6]At [15].
Ms Cook took Mr Heappey to hospital, but he died soon after arrival.
Charges
Mr Webber was charged with murder under s 167 of the Crimes Act. He pleaded guilty and was sentenced to life imprisonment with a minimum period of imprisonment of 15 years.[7] Mr Burke was charged as a party to murder under ss 66(1), 66(2) and 167 of the Crimes Act. After a jury trial, Mr Burke was found not guilty of murder but guilty of manslaughter. He was sentenced to a term of imprisonment of five years and two months.[8] Mr Waho, Ms Cook and Mr Sim were charged as parties to causing Mr Heappey grievous bodily harm with intent to injure. They all pleaded guilty and were sentenced to terms of imprisonment of between approximately two and three years.[9]
Section 66
[7]R v Webber [2020] NZHC 2328.
[8]HC sentencing notes, above n 3, at [59].
[9]R v Waho [2020] NZHC 112 and, on appeal, Waho v R [2020] NZCA 526; R v Cook [2019] NZHC 2890; and R v Sim [2019] NZHC 2361.
Section 66 of the Crimes Act provides:
66 Parties to offences
(1) Every one is a party to and guilty of an offence who—
(a) actually commits the offence; or
(b)does or omits an act for the purpose of aiding any person to commit the offence; or
(c) abets any person in the commission of the offence; or
(d)incites, counsels, or procures any person to commit the offence.
(2)Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.
Although s 66 does not characterise the offender who actually committed the offence and the other parties differently, we will differentiate them in this judgment for ease of comprehension. We will refer to the person who actually commits the offence as the “principal offender” and anyone who becomes liable under
s 66(1)(b)–(d) or s 66(2) as a “secondary party”.Under s 66(2), a secondary party who has subscribed to a common purpose to commit an offence is liable where the principal offender commits that offence. But the secondary party is also liable in relation to every other offence committed by anyone else who has joined the common unlawful purpose, provided (a) that offence was also committed in the prosecution of the common purpose and (b) the secondary party knew such offence was a probable consequence of prosecuting the common purpose. It is not a requirement that the secondary party intended the principal (or other) offender to commit the other offence; liability is based on knowing that such an offence was a probable consequence of the prosecution of the common purpose.
Mr Burke was charged as a party under both s 66(1) and s 66(2) of the Crimes Act. It was unclear whether Mr Burke was convicted under the former or the latter. However, the Judge sentenced Mr Burke on the basis that he had been convicted under s 66(2).[10] As we come to, it is for this reason that this appeal focuses upon issues arising under s 66(2).
Trial Judge’s question trail for the jury
[10]HC sentencing notes, above n 3, at [13].
The specific wording and order of the questions that the trial Judge put to the jury are particularly relevant. This is because, in our view, they led the jury to reach certain conclusions about the relevance of Mr Burke knowing that Mr Webber had a knife, which were then relevant to determining if the stabbing was in the prosecution of, and a probable consequence of, the common purpose.
The Crown case against Mr Burke at the trial was that he was guilty of murder either under s 66(1) or under s 66(2). The prosecutor did not address the possibility of a manslaughter verdict in closing, but defence counsel did, though he argued the correct verdict was that Mr Burke was not guilty of either murder or manslaughter. The question trail provided by the Judge to the jury dealt with both s 66(1) and s 66(2), in relation to both murder and manslaughter. Given the jury’s verdict, we are concerned only with the directions in relation to manslaughter. In the case of s 66(2), the jury was directed on alternative bases—that Mr Burke knew Mr Webber was in possession of a knife, and that he did not know this. The question trail asked the following questions in relation to the possibility of liability under s 66(2) for manslaughter:[11]
[11]Italicised emphasis added.
16.Are you sure that there was a shared understanding or agreement (common goal) between Mr Burke and Mr Webber to inflict a physical beating or “hiding” on Mr Heappey for his disrespect to the gang?
…
17.Are you sure that Mr Burke and Mr Webber had agreed to help each other and participate to achieve their common goal?
…
18.Are you sure that Mr Webber’s stabbing of Mr Heappey was committed in the course of carrying out his and Mr Burke’s common goal?
…
19.Are you sure that Mr Burke knew it was a probable consequence of carrying out that common goal that Mr Webber would assault Mr Heappey?
…
20.Are you sure that Mr Burke knew that Mr Webber was in possession of a knife at the time of the assault on Mr Heappey?
If yes, go to question 21.
If no, go to question 22.
21.Are you sure that Mr Burke knew that Mr Webber knew the assault would be dangerous, being likely to cause harm that was more than trivial?
…
22.Are you sure that Mr Burke, despite not knowing that Mr Webber possessed a knife, knew that Mr Webber knew the assault would be dangerous, being likely to cause harm that was more than trivial?[[12]]
…
[12]The words “that Mr Webber knew” in this question seem superfluous because the question is whether Mr Burke knew the assault was, in fact, likely to cause non-trivial harm, not whether Mr Burke knew that Mr Webber knew that. However, nothing turns on this.
The jury was required to answer questions 16–19 and 22 affirmatively to reach a guilty verdict under s 66(2). If they answered question 20 in the negative, they were told not to address question 21 and to proceed straight to question 22. We assume they did, consistent with the Judge’s observation in his sentencing notes that he was not satisfied the Crown had proved that Mr Burke knew Mr Webber had a knife.
We have emphasised aspects of questions 18, 19 and 22 in the quotation above. This is because of the relevance of the fact that question 18 referred to a “stabbing”, while question 19 referred to an “assault” and question 22 referred to an “assault … likely to cause harm that was more than trivial”. If the Judge’s factual finding that the Crown had not proved Mr Burke knew Mr Webber had a knife reflected the view of the jury, the affirmative answer to question 18 would indicate the jury found the stabbing was carried out in the course of the common purpose, even though Mr Burke did not know Mr Webber had a knife. And question 22 assumes the assault that was known by Mr Burke to be a probable consequence of the prosecution of the common purpose was something other than the stabbing, because it is predicated on the jury having found that Mr Burke did not know Mr Webber had a knife.
It is helpful to contrast this to questions 12–14, which dealt with the possibility that Mr Burke could be liable for manslaughter under s 66(1) on the basis that he assisted or encouraged Mr Webber. The Judge asked whether the jury was sure Mr Burke had assisted or encouraged Mr Webber to stab Mr Heappey, whether Mr Burke intended to do so, and whether Mr Burke knew that Mr Webber was going to stab, or was stabbing, Mr Heappey. These questions could have been answered affirmatively only if the jury found that the Crown had proved that Mr Burke knew Mr Webber had a knife. Unlike the directions in relation to s 66(2), the directions in relation to s 66(1) did not deal with the possibility that Mr Burke could be liable under s 66(1) even though he did not know Mr Webber had a knife. Counsel for the respondent argued that, consistent with question 22, the reference in these questions should have been to an assault causing non‑trivial harm, not to a stabbing. We do not agree.
The case under s 66(2)
In this Court’s decision in Ahsin v R, the majority summarised the elements of s 66(2) as follows:[13]
[102]To summarise, in order to establish party liability under s 66(2), the Crown must prove beyond reasonable doubt that:
(a)the offence to which the defendant is alleged to be a party was committed by a principal offender;
(b)there was a shared understanding or agreement to carry out something that was unlawful;
(c)the person(s) accused of being parties to that agreement had all agreed to help each other and participate to achieve their common unlawful goal;
(d)the offence was committed by the principal in the course of pursuing the common purpose; and
(e)the defendant intended that the offence that eventuated be committed, or knew that the offence was a probable consequence of carrying out the common purpose. This requires foresight of both the physical and mental elements of the essential facts of the offence.
[13]Ahsin v R [2014] NZSC 153, [2015] 1 NZLR 493 per McGrath, Glazebrook and Tipping JJ. We do not propose to depart from this analysis in the present case; rather, we explain the application of the elements as articulated in Ahsin to the facts of the present case.
Based on the question trail provided to the jury by the Judge and the factual findings set out above, and applying the Ahsin criteria, the case against Mr Burke regarding manslaughter as a s 66(2) party that was put to the jury by the Judge can be summarised as follows:
(a)Offence was committed by Mr Webber: Mr Webber committed the offence of culpable homicide. Under s 171 of the Crimes Act, manslaughter is culpable homicide that is not murder.[14] In this case, the killing was a culpable homicide under s 160(2)(a) of the Crimes Act: a killing by an unlawful act. The unlawful act was an assault that was likely to cause harm that was more than trivial.[15]
(b)Common intention to prosecute an unlawful purpose: Mr Webber and Mr Burke formed a common intention to prosecute the unlawful purpose of giving Mr Heappey a physical beating or hiding. The Crimes Act categorises assaults into different levels of seriousness by reference to the defendant’s intention and to the harm inflicted. In his summing up, the Judge set the level of assault at the less serious end of that scale—as an assault that would cause non-trivial harm, but not an assault that would cause serious harm. The way the Judge defined the common purpose was problematic, as we explain below.[16]
(c)Assist each other: Mr Webber and Mr Burke also agreed to assist each other in the prosecution of the common purpose.
(d)Offence committed in the prosecution of the common purpose: The culpable homicide was committed by Mr Webber in the prosecution of the common (unlawful) purpose of giving Mr Heappey a physical beating or hiding. As noted earlier, the Judge directed the jury that they had to be sure that the stabbing of Mr Heappey by Mr Webber was committed in the prosecution of the common purpose.[17] If the jury convicted on the basis of s 66(2), they must have found it was. However, it is not clear what the jury’s basis for this finding was. As we discuss further below, this direction, too, was problematic.[18]
(e)Known to be a probable consequence: The commission of culpable homicide was known by Mr Burke to be a probable consequence of the prosecution of the common purpose of giving Mr Heappey a physical beating or hiding; that is, Mr Burke knew Mr Webber could well assault Mr Heappey in a manner likely to cause non‑trivial harm.[19] Mr Heappey died as a result of the violence Mr Webber inflicted upon him.
[14]In R v Tomkins [1985] 2 NZLR 253 (CA), the Court of Appeal said in s 66(2) cases involving murder or manslaughter the offence is to be seen broadly as culpable homicide: at 256.
[15]In fact, Mr Webber committed murder but, given Mr Burke was found not guilty of murder, the focus of the present appeal is on manslaughter. We explain why below at [34].
[16]Below at [50]–[57].
[17]Above at [26]–[30].
[18]Below at [58]–[78].
[19]The offence of manslaughter involves the undertaking of an unlawful act that is dangerous in the sense that it is likely to cause more than trivial harm: R v Lee [2006] 3 NZLR 42 (CA) at [137]–[138].
As we will come to, there is a close connection between the last two requirements. If the offence was not committed in the prosecution of the common purpose, it would not be a known probable consequence of the prosecution of the common purpose either. The converse is also likely to be true in almost every case: if the offence was not a known probable consequence, it would not have been committed in the prosecution of the common purpose. This highlights the need for trial judges to give clear directions on these elements of s 66(2) and on what the Crown says is the common purpose in the particular case.
The relevant offence
As noted above, the Crown case against Mr Burke was that Mr Burke knew that a murder under s 167(b) was a probable consequence of the prosecution of the common purpose of giving Mr Heappey a hiding; that is, that it was probable that Mr Webber would kill Mr Heappey with intent to cause bodily injury known to be likely to cause death, being reckless as to whether death ensued or not. But the jury’s verdict, finding Mr Burke not guilty of murder, indicates this aspect of the Crown case was rejected. In considering the alternative of Mr Burke being guilty of manslaughter (a culpable homicide that was not murder), the issue becomes whether Mr Burke knew that a probable consequence of the prosecution of the common purpose was the commission of a culpable homicide different in nature from that actually committed by Mr Webber.
On the respondent’s approach in this Court, and that of the majority of the Court of Appeal, Mr Burke would be guilty of manslaughter as a secondary party under s 66(2) even though the common purpose to which he subscribed was merely to assault Mr Heappey in a way that was likely to cause non-trivial harm, as opposed to serious harm, and he did not know Mr Webber had a knife.[20]
Appeal to the Court of Appeal
[20]As we will come to, the prosecution said there was a common purpose to give a mean hiding (which would equate with an assault intended to cause serious harm). But the Judge used the term “hiding” in his summing up. See below at [50].
Mr Burke appealed to the Court of Appeal against conviction and sentence. The Court of Appeal dismissed the appeals.[21] Although a number of discrete grounds of appeal were pursued in the Court of Appeal, the only one which remains of relevance is the issue of what the Crown needed to prove to establish Mr Burke’s guilt for manslaughter under s 66(2). The Court of Appeal proceeded on the basis that Mr Burke’s conviction must have been under s 66(2), not s 66(1). The majority also evaluated the issue on the basis that Mr Burke did not know Mr Webber had a knife when the attack on Mr Heappey occurred.[22] The Court of Appeal was unanimous in dismissing the appeal, but the reasons of Brown and Moore JJ differed from those of Mallon J. We will revert to this later.[23]
Appeal to this Court
[21]CA judgment, above n 1.
[22]At [12], n 2 and [70].
[23]See below at [151]–[153].
Mr Burke now appeals to this Court against conviction. This Court granted leave to appeal on 21 October 2022, the approved question being “whether the Court of Appeal correctly interpreted and applied s 66(2) of the Crimes Act 1961”.[24] We will proceed on the same assumptions as those adopted by the majority in the Court of Appeal: that Mr Burke was convicted under s 66(2) and that the Crown had not proved that Mr Burke knew Mr Webber was in possession of a knife when the plan to give Mr Heappey a hiding was implemented. The approved question in this Court’s leave judgment anticipated this approach.
Recent common law developments
[24]Burke v R [2022] NZSC 124 (Glazebrook, Williams and Kós JJ).
There have been significant common law developments in relation to party liability in other jurisdictions since the issue was last before this Court. Those developments were the focus of some of the submissions made to us and are important background to the appeal. We therefore address those developments now, before turning to the grounds on which the present appeal was advanced.
Two earlier decisions of this Court have addressed the scope of s 66(2): Edmonds v R and Ahsin.[25] In Edmonds, this Court discussed the historical origins of s 66 and the operation of its common law equivalent in England and Wales.[26] We have set out above the summary of the elements of s 66(2) in Ahsin.[27] Since the Edmonds and Ahsin judgments were delivered, however, there has been a significant change in the common law relating to joint criminal enterprises in England and Wales and some other jurisdictions.
[25]Edmonds v R [2011] NZSC 159, [2012] 2 NZLR 445; and Ahsin, above n 13.
[26]Edmonds, above n 25, at [22]–[40].
[27]Above at [31].
In the judgment of Regina v Jogee and Ruddock v The Queen, a consolidated decision of the United Kingdom Supreme Court and the Privy Council on appeal from Jamaica (sitting in a joint hearing) (Jogee), the combined Court effectively abolished the common law equivalent of s 66(2), extended joint criminal enterprise.[28] The Jogee Court said that the common law had taken a wrong turn in the earlier decision of Chan Wing‑Siu v The Queen, a decision of the Privy Council on appeal from Hong Kong.[29] Jogee also effectively overruled the decision of the House of Lords in Regina v Powell.[30]
[28]Regina v Jogee [2016] UKSC 8, [2017] AC 387.
[29]At [62] and [87], discussing Chan Wing‑Siu v The Queen [1985] AC 168 (PC).
[30]For example see Jogee, above n 28, at [74]–[75] and [100], discussing Regina v Powell [1999] 1 AC 1 (HL).
Despite this significant development in the common law of the jurisdictions affected by Jogee (England and Wales, and Jamaica), both the High Court of Australia (in relation to the common law of New South Wales)[31] and the Hong Kong Court of Final Appeal declined to follow Jogee.[32]
[31]Miller v The Queen [2016] HCA 30, (2016) 259 CLR 380 at [2] per French CJ, Kiefel, Bell, Nettle and Gordon JJ and [131] per Keane J. The common law also continues to apply in South Australia: see Halsbury’s Laws of Australia (2022, online ed) vol 130 Criminal Law at [130-7200].
[32]HKSAR v Chan Kam Shing [2016] HKCFA 87, (2016) 19 HKCFAR 640 at [58].
These developments in the common law emphasise the point made by this Court in Edmonds that the common law is “more susceptible to judicial development and adaptation than s 66(2)”.[33] The approach of the courts in this country to common purpose liability must be based firmly on the wording of s 66(2).[34] Therefore, there is a need for care in applying decisions in common law jurisdictions and jurisdictions with legislative equivalents of s 66(2) that have differing wording.
[33]Edmonds, above n 25, at [23].
[34]At [47].
In its submissions, the Criminal Bar Association traced the legislative history of s 66(2) and argued that the provision represents a restatement of the common law. Its counsel, Mr Wilkinson-Smith, argued that the concerns expressed in Jogee apply also to the way s 66(2) is applied in this country. He argued that correcting this would not be overriding a statute but correcting an erroneous interpretation of it. This Court previously declined to give leave in a case where a party proposed to make a similar argument on appeal, on the basis that the point was not arguable.[35] As the leave panel noted in that case, “[t]he Court is not free to depart from the clear language of s 66(2)”.[36] We add that, as Jogee abolished the common law equivalent of s 66(2) in the jurisdictions affected by the decision, achieving the same result in New Zealand would require the repeal of s 66(2).
Grounds of appeal
[35]Uhrle v R [2016] NZSC 64, (2016) 28 CRNZ 270 at [5].
[36]At [5].
The appeal was advanced on two grounds:
(a)Known probable consequence had to be a stabbing or similarly grave assault: The first ground of appeal was that the Judge should have directed the jury that a conviction under s 66(2) was open only if the jury was satisfied that Mr Burke knew that a stabbing (or an act of its type) was a probable consequence of the prosecution of the common purpose.
(b)Known probable consequence had to be a killing: The alternative ground of appeal (in the event that the first ground was not accepted) was that the Judge should have directed the jury that a conviction under s 66(2) was open only if the jury was satisfied that Mr Burke knew that an unlawful killing was a probable consequence of the prosecution of the common purpose.
As is apparent, there is a degree of overlap between these grounds. We ultimately allow the appeal under the first ground, for two reasons:
(a)First, the jury directions left open the possibility that the requirement for the offence to be committed “in the prosecution of” the common purpose was decided on an incorrect basis. The wording and order of the trial Judge’s question trail may have erroneously suggested to the jury that “in the course of” carrying out the common purpose meant “at the same time as”, rather than “as part of the process of implementing”. The Judge should have directed the jury that they had to be satisfied Mr Burke knew about the knife before they could address whether the stabbing was in the prosecution of the common purpose of inflicting a physical beating or hiding on Mr Heappey. Instead, the question trail first asked the jury whether the stabbing occurred in the prosecution of the common purpose, before asking about knowledge of the knife.[37]
(b)Second, the trial Judge’s directions did not conform with what we see as the correct approach to the issue of what the secondary party in a culpable homicide case needs to know is a probable consequence of the prosecution of the common purpose under s 66(2). It is unwise to stray too far from the actual words of s 66(2) and the specific facts of the case. It was necessary for the jury to be directed that they had to be satisfied Mr Burke knew the assault that actually occurred was a probable consequence of the prosecution of the common purpose of giving Mr Heappey a hiding. To reach that conclusion, the jury needed to be satisfied that Mr Burke knew Mr Webber had a weapon. The Judge’s directions erroneously allowed for the jury to find Mr Burke guilty of manslaughter even if he did not know about the weapon. The jury was told that Mr Burke could be found guilty if the jury was satisfied he knew that an assault merely causing more than trivial (but not necessarily serious) harm was a probable consequence of carrying out the common purpose of giving Mr Heappey a hiding.[38]
[37]Below at [74]–[77].
[38]Below at [141]–[142].
Although our conclusion on the first ground makes it unnecessary to consider the second ground, we discuss it nonetheless, given the point was argued in detail before this Court and was the subject of Mallon J’s separate reasons in the Court of Appeal.[39] We conclude that it is not necessary to expand the interpretation of the term “offence” in the “probable consequence” context of s 66(2) beyond the acts or omissions of the principal offender, to the extent that they are known by the secondary party to be a probable consequence of the prosecution of the common purpose.[40]
First ground of appeal
Issues
[39]Winkelmann CJ and Glazebrook J in this Court would have allowed the appeal under the second ground. See below at [177] and [248].
[40]Below at [171]–[172].
To address the first ground of appeal, we will deal with the following issues:
(a)How should the common purpose have been defined in this case?
(b)What direction should have been given on whether the offence was committed in the prosecution of the common purpose?
(c)What is the meaning of “probable consequence”?
(d)What direction should have been given on whether Mr Burke knew the offence was a probable consequence of the prosecution of the common purpose?
As we have said, the factors identified above at [32](b), [32](d) and [32](e) are the key elements in this case, as in most s 66(2) cases. Those factors (defining the common purpose, determining whether the actions fall within the prosecution of it and analysing whether the outcome was a known probable consequence) are closely interlinked. The relationship between them was analysed in these terms by this Court in Edmonds:[41]
[49] The common purpose which is left to the jury is largely for the prosecutor to define. In a group violence case, there will often be a decision to be made as to where to pitch the alleged common purpose in terms of criminality. In this case, the common purpose was pitched at a high level of criminality – an intention to inflict serious violence. But the prosecutor could also have pitched it much lower, for instance to assault the deceased and the other members of his group. The lower the criminality of the alleged common purpose, the easier it will be to establish, but perhaps the harder it will be to show that the ultimate offence was recognised to be a probable consequence of its implementation. The higher the criminality of the alleged common purpose (and thus the closer it is to the offence eventually committed), the more difficult it may be to establish that particular defendants formed the intention to prosecute that common purpose, but the easier it will be to infer that such defendants (that is, those who did form that intention) knew that the ultimate offence was a probable consequence of its implementation.
[41]Edmonds, above n 25.
The requirement that the offence be committed in the prosecution of the common purpose is an especially important component in some s 66(2) cases, given the connection between determining whether an offence was committed in the prosecution of the common purpose and whether it was known to be a probable consequence of the prosecution of the common purpose.
How should the common purpose have been defined in this case?
In this Court, the respondent argued that the common purpose was to give Mr Heappey a “mean hiding”; that is, to assault Mr Heappey in a manner likely to cause serious harm. This reflected the Crown case at the trial. At the trial, the prosecutor used the phrases “mean hiding” and “serious violence” in describing the common purpose. By contrast, the question trail described a different, less serious common purpose—to inflict violence causing non-trivial harm.[42] In light of that, we cannot assume the jury found the common purpose was to cause serious violence. The trial Judge consulted counsel about the question trail, so the reason for the definition of the common purpose in the question trail differing from that put forward by the prosecutor in her closing address is unclear.
[42]See questions 16, 19 and 21 in the question trail quoted above at [27].
As we noted earlier, the prosecutor did not address the possibility of a manslaughter verdict in her closing address. This was unfortunate because it left the Judge to direct the jury on the possibility of a manslaughter verdict under s 66(2) without there being a clear indication of the competing cases of the Crown and the defence on the issue. In fact, the case presented to the jury by the prosecutor to support its position that murder was the right verdict was that Mr Burke knew Mr Webber had a knife; this was an important element of the Crown’s case for a murder conviction.
On the basis of what the prosecutor said to the jury about the common purpose, it would seem that the Crown’s case in relation to manslaughter would have been that the common purpose was to give Mr Heappey a mean hiding (and in the question trail, the Judge gave alternative directions based on whether the jury found that Mr Burke did know, or did not know, Mr Webber was armed). This relatively generic framing carried risks for the Crown. Be that as it may, it is for the prosecutor to pitch the common purpose.[43] The Judge should have directed the jury to that effect and then considered whether a weapons direction (that is, a direction that the jury needed to determine whether Mr Burke knew Mr Webber was armed) was required. This highlights the need for counsel and the judge to focus on the way the common purpose will be described to the jury, given its importance in the application of s 66(2).
[43]Edmonds, above n 25, at [49], quoted above at [48]. An exception would be if the judge was not satisfied the evidence established that there was such a common purpose.
That said, the reality is that in the present case the common purpose as put to the jury by the Judge was simply the purpose of inflicting a physical beating or hiding; that is, inflicting more than trivial harm but not necessarily serious harm. Whatever the prosecution’s position at the trial was, the position of the respondent in this Court was that, on the directions given by the trial Judge, the requirements for a conviction for manslaughter under s 66(2) were met. The appeal was argued on that basis, and we must evaluate the arguments made by counsel before us against that background.
On the basis of the description of the common purpose in the question trail, the jury may well have thought the Judge was telling them that it was open to them to find Mr Burke guilty of manslaughter if the common purpose of giving Mr Heappey a hiding was to involve the infliction of only non-trivial harm, well short of grievous bodily harm, and if Mr Burke did not know Mr Webber had a knife. Of course, we do not know whether the jury did reach their verdict of guilty of manslaughter on this basis, but the question trail left open that possibility. We must therefore consider the points made on appeal on the assumption that the verdict may have been reached on that basis.
In addition, we note that the intra-gang context and the fact that there were only two protagonists involved in the assault on Mr Heappey distinguishes this case from cases dealing with confrontations between large rival groups, where an escalation of violence may be predictable. In this case, the violence was in an orchestrated environment where the victim had (albeit reluctantly) submitted to being “disciplined” (that is, assaulted) and the common purpose was, as represented by the Judge in the question trail, to give him a hiding involving non-trivial harm, not to cause the victim serious harm.[44]
[44]As noted earlier, the Crown case at the trial was that the planned violence was of a greater seriousness than reflected in the question trail. Before us, the respondent argued that seriously violent retribution was reflective of gang culture. But, as noted earlier, we are proceeding on the basis that the jury’s verdict reflected the instructions to it in the question trail.
These factors are important because the evaluation of cases involving allegations of liability under s 66(2) must be firmly grounded in the facts of the case.[45] To reiterate, it is important that there is clarity about the nature of the common purpose alleged by the Crown and the offence said by the Crown to be a known probable consequence of the implementation of that common purpose. Observations made in decisions about s 66(2) and its overseas analogues need to be carefully assessed against the facts of the case in which they are made.
[45]As noted by this Court in Edmonds, above n 25, at [46].
To conclude on this point, the Crown’s case was that the common purpose was to give Mr Heappey a mean hiding—ie, to assault him in a manner likely to cause serious harm. Because there was a proper evidential basis for that case, the Judge should have directed the jury accordingly. But because he did not, we assess this appeal on the basis that the jury convicted Mr Burke in accordance with the Judge’s directions (that is, that the common purpose was to assault Mr Heappey in a manner involving the infliction of non-trivial harm), and on the basis that Mr Burke did not know that Mr Webber was armed with a knife.
What direction should have been given on whether the offence was committed in the prosecution of the common purpose?
One of the elements of s 66(2) that the Crown was required to prove was that the culpable homicide in this case was committed by Mr Webber in the prosecution of the common (unlawful) purpose of giving Mr Heappey a physical beating or hiding.
To recap, the question trail addressed this by asking:[46]
Are you sure that Mr Webber’s stabbing of Mr Heappey was committed in the course of carrying out his and Mr Burke’s common goal?
[46]Emphasis added.
The Judge did not elaborate on the question he posed in the question trail as set out above, either in the question trail itself or in his summing up.
We have already referred to the Judge’s finding that the Crown did not prove Mr Burke knew Mr Webber had a knife when they began administering the hiding. The Judge qualified this by adding that Mr Burke knew possession of the knife was a distinct possibility, but, as already noted, the argument before us proceeded on the basis that Mr Burke did not know about the knife. There was evidence to the contrary, but we must proceed on the basis that this evidence to the contrary was rejected.
Mr Rapley KC, who argued this aspect of the appeal for Mr Burke, submitted that under the common law of England and Wales prior to Jogee, a secondary party would not be guilty of manslaughter on the present facts. He referred to a number of cases that applied in England prior to the decision in Jogee, which were seen as establishing the concept of “fundamental difference”.[47] Mr Rapley asked us to apply these cases by analogy in determining the scope of s 66(2) to facts like those of the present case (though he did not expressly advance a defence based on fundamental difference in this case).
[47]Davies v Director of Public Prosecutions [1954] AC 378 (HL); Regina v Anderson [1966] 2 QB 110 (Crim App); Regina v Lovesey [1970] 1 QB 352 (CA); Chan Wing-Siu, above n 29; Powell, above n 30; and Regina v Rahman [2008] UKHL 45, [2009] 1 AC 129. Some of these cases were referred to in the Court of Appeal’s judgment in R v Hartley [2007] NZCA 31, [2007] 3 NZLR 299, which we discuss below at [103]–[113].
The leading case was Regina v Anderson, which was decided in 1966.[48] The key passage in the judgment of the English Court of Criminal Appeal in that case, delivered by Lord Parker CJ, is this:[49]
It seems to this court that to say that adventurers are guilty of manslaughter when one of them has departed completely from the concerted action of the common design and has suddenly formed an intent to kill and has used a weapon and acted in a way which no party to that common design could suspect is something which would revolt the conscience of people today.
[48]Anderson, above n 47.
[49]At 120.
Lord Parker then responded to the submission that if the offenders had a common design to commit an unlawful act, from which death resulted, they would both be guilty of manslaughter, but the secondary party would not be guilty if the principal offender decided to kill the victim in a moment of passion. Lord Parker rejected the submission that this approach would be illogical. His Honour said:[50]
Considered as a matter of causation there may well be an overwhelming supervening event which is of such a character that it will relegate into history matters which would otherwise be looked upon as causative factors.
[50]At 120.
The words “overwhelming supervening event” were treated as significant in Jogee, as we will come to. It is not entirely clear whether the fact the ultimate offence resulted from an overwhelming supervening event relates to the requirement (in s 66(2) terms) that the Crown must prove the offence was committed in the prosecution of the common purpose, or the requirement that the offence was a probable consequence of the prosecution of the common purpose. In truth it relates to both. As noted earlier, the jury must have considered the stabbing in the present case was committed in the prosecution of the common purpose.[51]
[51]See above at [32](d).
There are two impediments to adopting, in the present case, the “fundamental difference” approach arising from the decision in Anderson, namely:
(a)it was rejected in Jogee; and
(b)in Edmonds, this Court said there was no room for its application in s 66(2) cases.
Some elaboration on these impediments is required.
The Jogee Court rejected the “fundamental difference” concept (albeit in the context of abolishing common law joint criminal enterprise liability and confining accessory liability to the common law equivalent of s 66(1), which arguably reduced the need for the fundamental difference concept).[52] In its place the Jogee Court adopted a variation of the expression “overwhelming supervening event” used by Lord Parker in Anderson. Jogee put it this way:[53]
... it is possible for death to be caused by some overwhelming supervening act by the perpetrator which nobody in the defendant’s shoes could have contemplated might happen and is of such a character as to relegate his acts to history; in that case the defendant will bear no criminal responsibility for the death.
[52]Jogee, above n 28, at [98]. See Beatrice Krebs “Overwhelming Supervening Acts, Fundamental Differences, and Back Again?” (2022) 86 JCL 420 at 430–431.
[53]Jogee, above n 28, at [97]. See also at [12].
It is clear from case law in England and Wales since Jogee that the scope of the overwhelming supervening event concept is limited in practice and, if it had applied in this case, would not have assisted Mr Burke. This is because of authority that the unforeseen use of a knife alone is not an overwhelming supervening event.[54] In any event, we consider that introducing this concept into the law in New Zealand would add complexity without any real benefit. So, as we see it, neither “fundamental difference” nor “overwhelming supervening event” has any place in the application of s 66(2). Section 66(2) requires a finding by the jury that the offence committed by the principal offender was committed in the prosecution of the common purpose and that the secondary party knew that the offence was a probable consequence of the prosecution of the common purpose. As already noted, these two requirements are connected. The wording of s 66(2) does not leave any room for the “fundamental difference” or “overwhelming supervening event” concepts, and under s 66(2) there is no necessity for them.
[54]Regina v Tas [2018] EWCA Crim 2603, [2019] 4 WLR 14; Regina v Harper [2019] EWCA Crim 343, [2019] 4 WLR 39; Lanning v R [2021] EWCA Crim 450; and R v Smith [2022] EWCA Crim 1808.
Our position is supported by the earlier decision of this Court in Edmonds. William Young J, giving the reasons of the Court, traced through the development of fundamental difference in the United Kingdom[55] and said:
[47] The approach of New Zealand courts to common purpose liability must be firmly based on the wording of s 66(2). That section recognises only one relevant level of risk, which is the probability of the offence in issue being committed. If the level of risk recognised by the secondary party is at that standard, it cannot matter that the actual level of risk was greater than was recognised. It follows that there can be no stand-alone legal requirement that common purpose liability depends on the party’s knowledge that one or more members of his or her group were armed or, if so, with what weapons. As well, given the wording of s 66(2), there is no scope for a liability test which rests on concepts of fundamental difference associated with the level of danger recognised by the party. All that is necessary is that the level of appreciated risk meets the s 66(2) standard.
[55]Edmonds, above n 25, at [31]–[42].
However, shortly after rejecting the “fundamental difference” concept the Court said:[56]
… there may be cases where the use by one member of a group of a weapon which other members of the group had not known about may conceivably justify the conclusion that the offence committed involved such a departure from the common purpose as not properly to be regarded as occurring in the course of its implementation.
[56]At [51].
The Court went on to add that this did not extend to cover the situation where the secondary party knew of a weapon but not what type of weapon. That is not the situation here.
This observation from Edmonds suggests that an acquittal of the secondary party may be appropriate where the principal offender uses a weapon that the secondary party does not know about (for example, stabs the victim with a knife when the secondary party did not know any kind of weapon was being carried by a member of the group). Edmonds suggests this would involve a finding by the jury that the stabbing offence was not committed in the prosecution of the common purpose. Although that has some resemblance to the fundamental difference concept as explained in Anderson and adopts similar logic to it, it is not a judicial gloss on the statutory wording, but rather an application of the words of s 66(2); that is, it is “firmly based on the wording” of s 66(2), to use the words of this Court in Edmonds.
Guidance on “in the prosecution of the common purpose” was required in this case
As noted earlier, the jury in the present case appears to have answered affirmatively the question in the question trail to the effect that the stabbing was committed by Mr Webber in the course of pursuing the common purpose.[57] The Judge did not provide guidance on what that required. “In the course of” carrying out the common purpose could mean “at the same time as” or it could mean “as part of the process of implementing” the common purpose. It is clear from the quotation from Edmonds set out above at [71] that the correct interpretation is the latter, and in most cases this will be obvious to a jury without further explanation. But, in this case, given the inconsistency between the jury’s apparent findings that (a) a stabbing was in the pursuit of the common purpose and (b) Mr Burke did not know Mr Webber had a knife, it may be the jury thought it was sufficient that Mr Heappey was stabbed during the assault.
[57]Above at [32](d).
If the jury had been told the correct interpretation was “part of the process of implementing”, and they considered Mr Burke did not know about the knife, they may have found the stabbing was, in the words of Edmonds, “such a departure from the common purpose as not properly to be regarded as occurring in the course of its implementation”. That, in turn, means the jury needed to be told that they had to decide whether they were satisfied that Mr Burke knew about the knife before addressing whether the stabbing was in the prosecution of Mr Webber’s and Mr Burke’s common purpose of inflicting a physical beating or “hiding” (that is, an assault causing more than trivial harm) on Mr Heappey.
As noted earlier, the question trail did pose the question to the jury as to whether Mr Burke knew about the knife. But that question came after the question about whether the stabbing occurred in the prosecution of the common purpose. This would have suggested to the jury that whether Mr Burke knew Mr Webber had a knife was not important in answering the question of whether the stabbing was in the prosecution of the common purpose, when in fact it was very important. So, the question as to whether Mr Burke knew about the knife needed to come before the question about whether the stabbing occurred in the prosecution of the common purpose.
As the direction given to the jury left open the possibility that the jury found that the offence was committed in the prosecution of the common purpose on an incorrect basis, we consider the appeal needs to be allowed on this ground.
But, as much of the argument before us focused on the known probable consequence requirement, we go on to consider that on the assumption that the jury needed to address that issue (that is, that they were satisfied that the “prosecution of the common purpose” requirement was met). As will become obvious, there is a close correlation between the ambit of the group’s common purpose and the issue of whether other offending is a probable consequence of pursuing it. Problems tend to arise under s 66(2) when there is not a close fit between the way the common purpose is defined and the facts of the ultimate offending that is the focus of the trial.
What is the meaning of “probable consequence”?
As mentioned earlier, a significant issue in this case was whether the stabbing of Mr Heappey by Mr Webber was known by Mr Burke to be a probable consequence of the prosecution of their common plan to give Mr Heappey a hiding. In his question trail for the jury, the Judge told the jury that “probable consequence” means “there was a ‘substantial or real risk’, or that it could well happen”. He repeated this in his summing up. In doing so, the Judge was following a longstanding authority.[58]
[58]See Ahsin, above n 13, at [100]–[101].
Neither party took issue with this aspect of the Judge’s directions to the jury, given that this Court has previously confirmed that meaning as being correct. However, the interveners sought to argue that we should depart from earlier authority. The argument on this issue was presented by Mr Stevens for Te Matakahi, but explicitly supported by Mr Wilkinson-Smith for the Criminal Bar Association.
In R v Gush, the Court of Appeal acknowledged that “probable consequence” could have different meanings, depending on the context.[59] One possibility was “more probable than not”.[60] Another was a consequence that “could well happen”.[61] The Court ruled that the “more probable than not” standard was inappropriate for the purposes of s 66(2).[62] It found the correct meaning was “could well happen”.[63]
[59]R v Gush [1980] 2 NZLR 92 (CA).
[60]At 94.
[61]At 94.
[62]At 95.
[63]At 94. Note this formulation is not merely that the consequence could happen, but that it could well happen.
In Darkan v The Queen, the High Court of Australia also concluded that “could well happen” was an appropriate interpretation of “probable” in the context of the equivalent provision in Queensland.[64] We note that some of the Australian statutes that are equivalent to s 66(2) now adopt a recklessness standard.[65]
[64]Darkan v The Queen [2006] HCA 34, (2006) 227 CLR 373 at [79] per Gleeson CJ, Gummow, Heydon and Crennan JJ, citing Gush, above n 59, at 94, and [132]–[133] per Kirby J. The majority said it was not necessary in every case to explain the meaning of “probable consequence” to the jury, but where it was necessary or desirable a correct direction would be “probable in the sense that it could well have happened”: at [81]. They also said probable “means more than a real or substantial possibility or chance”: at [78].
[65]Section 11.2A(3) of the Criminal Code Act 1995 (Cth) provides that a secondary party is liable for an offence committed by the principal offender if they are reckless about the commission of the offence by the principal offender. Section 5.4(1) provides that a person is reckless if they are aware of a substantial risk and, having regard to the circumstances known to them, it is unjustifiable to take the risk. See also the Criminal Code 2002 (ACT), s 45A(3).
This Court has declined to revisit the law as stated in Gush in the past.[66] In Ahsin, the trial Judge used the phrase “could well happen” and “real or substantial risk” in his summing up.[67] Counsel before the Supreme Court argued the trial Judge should have used the statutory words “probable consequence” and elaborated only if asked to do so by the jury.[68] The majority in Ahsin rejected that submission in these terms:[69]
[100] Counsel’s criticism [of the direction] is directed at established law on the requirements of s 66(2). In R v Gush, the Court of Appeal, construing the words “probable consequence” in the provision purposively and in their context, held that they meant an event that could well happen rather than one which is more probable than not. In R v Piri, Cooke P reiterated that “the words do not require proof that the accused thought that the result which in fact eventuated was more likely than not”. He added that while no single formula is “preferable or adequate”, the degree of foresight required to be proved may be referred to as “a real risk, a substantial risk, … [or] something that might well happen”.
[101] These decisions have been consistently followed since in New Zealand. The Judge’s direction in this case is entirely in accordance with them and the present case does not require reconsideration of this aspect of the law.
[66]Ahsin, above n 13.
[67]At [98].
[68]At [99].
[69]Per McGrath, Glazebrook and Tipping JJ (footnotes omitted). See also at [17] per Elias CJ. This was reiterated by a leave panel in Stretch v R [2020] NZSC 128 at [9] and referred to in Uhrle, above n 35, at [5], n 7. In R v Piri [1987] 1 NZLR 66 (CA) at 78–79, the Court of Appeal dealt with the meaning of “likely” in s 167(d) of the Crimes Act 1961, but cited Gush,above n 59, as authority.
The standard question trail for s 66(2) asks the jury whether they are sure the secondary party knew the principal offender’s offence was a probable consequence (thus using the statutory wording), then refers to a “probable consequence” as “a substantial or real risk” or that it “could well happen”.[70] Counsel for Te Matakahi, Mr Stevens, submitted the standard question should explain “probable consequence” as follows:
Knowing something to be a probable consequence means that the secondary party knew the offence was a likely outcome on the facts known to him or her at the time.
[70]Ngā Kōti o Aotearoa | Courts of New Zealand “Hybrid section 66(1) and (2) Crimes Act 1961- No unanimity required” < and Ngā Kōti o Aotearoa | Courts of New Zealand “Party to wounding with intent to cause grievous bodily harm (Sections 66(2), 188 Crimes Act 1961)” <
Support for that position (and the position advanced by counsel in Ahsin) can be derived from the bench book guidance to trial judges used by the courts in Victoria, Australia in relation to the equivalent provision in the Crimes Act 1958 (Vic), s 323(1)(d). That provision refers to the secondary party being “aware that it was probable” that the principal offence would be committed. The guidance is in these terms:[71]
It is likely, as a matter of statutory interpretation, that the word “probable” is an ordinary English word and it is a matter for the jury to give the word meaning. If necessary, a judge may suggest that “likely” is an acceptable synonym (see, e.g. Crabbe v R (1985) 156 CLR 464). If the jury requires further guidance, it may be permissible to explain that the word “probable” is used in contrast to what is merely “possible”. When directing the jury, the judge should not equate the word “probable” with a “balance of probabilities” test.
[71]Judicial College of Victoria Bench Book/Criminal Charge Book (2023) at ch 5.2, [95].
In R v Piri, the Court of Appeal rejected an argument that judges should refrain from expanding on the meaning of probable or likely.[72] It found that a jury may be “entitled to more guidance” in cases where the degree of likelihood or probability is a critical issue.[73]
[72]Piri, above n 69.
[73]At 79.
Mr Stevens referred to the definition of “probable” in the Oxford Dictionary (“[l]ikely to happen or be the case”)[74] and submitted that “likely outcome” was a middle ground between “possible consequence” and “more probable than not”. We do not consider that substituting “likely” for “probable” provides much assistance to a jury. It simply substitutes one open‑textured word for another. It is also not clear that “likely” adds any additional clarification to “probable”. Indeed, in Gush, the Court of Appeal expressed the view that “likely to cause death”, as it appears in s 167(b) of the Crimes Act, could be interpreted as “such as could well cause death”, thus giving the same meaning to “likely” in s 167(b) as to “probable” in s 66(2).[75] Mr Stevens acknowledged that the use of “likely” instead of “probable” retains an element of vagueness, but said “likely” was preferable to “could well happen”, which he submitted was a standard that was below the normal understanding of “probable”.
[74]As cited in Julia Tolmie “Uncertainty and Potential Overreach in the New Zealand Common Purpose Doctrine” (2014) 26 NZULR 441 at 463. Currently, the Oxford English Dictionary uses the phrase “reasonably expected to happen or be the case; likely”: Oxford English Dictionary “probable” (April 2024) <
[75]Gush, above n 59, at 96. Piri also equated likely with “might well happen”: Piri, above n 69, at 78.
We do not consider directing a jury that “probable” means “likely” will provide them with much assistance. The law in this area has been clear and constant since Gush, and we do not consider there is any more of a case for revisiting it now than there was when Ahsin was decided in 2014. We decline to do so. However, we see merit in the Victorian bench book suggestion that it may be helpful to a jury for the direction to state that the word used in s 66(2), “probable”, is used in contrast to merely “possible”.
Finally, it is worth reiterating that “probable” simply describes the required nexus between the alleged ultimate offending and the common purpose that triggered it. Its open texture is reduced when the fit between purpose and consequence is carefully articulated. Problems arise when “probable” is being asked to close a gap between purpose and consequence that is too wide. In such cases, “probable” risks being asked to do the work of the merely “possible”.
What direction should have been given on whether Mr Burke knew the offence was a probable consequence of the prosecution of the common purpose?
Appellant’s submissions
Mr Rapley said the unlawful act that caused the death of Mr Heappey was the stabbing of Mr Heappey by Mr Webber. That being the case, he argued Mr Burke could not be guilty of manslaughter unless the Crown proved that Mr Burke knew a stabbing or an assault of similar gravity was a probable consequence of prosecuting the common purpose as defined by the Judge.
Mr Rapley said the directions given by the Judge incorrectly allowed for the jury to find Mr Burke guilty of manslaughter on the basis that Mr Burke knew a different offence (the assault that would constitute a hiding), which did not cause Mr Heappey’s death, was a probable consequence of the prosecution of the common purpose. The Court of Appeal failed to differentiate the stabbing (which did cause death) and the hiding (which did not). The result was that Mr Burke was found liable for homicide when the offence he knew to be a probable consequence of the prosecution of the common purpose was only the assault involved in giving Mr Heappey a hiding. Foresight of acts that did not cause death are legally irrelevant to liability for manslaughter.
Mr Rapley accepted it was not necessary that Mr Burke knew the “exact concatenation of events” leading to Mr Heappey’s death (the stabbing) was a probable consequence of the prosecution of the common purpose,[76] but he did need to foresee the type of offence that Mr Webber committed. As the majority of this Court said in Ahsin, s 66(2) requires “foresight of both the physical and mental elements of the essential facts of the offence”.[77] In the present case, it was a requirement that the Crown proved that Mr Burke knew an assault causing grievous bodily harm or really serious harm was a probable consequence of the prosecution of the common purpose.[78]
[76]Edmonds, above n 25, at [54].
[77]Ahsin, above n 13, at [102(e)] per McGrath, Glazebrook and Tipping JJ.
[78]However, Mr Rapley accepted that, if Mr Heappey had died as a result of a punch, Mr Burke would have been guilty of manslaughter because he knew a punch was a probable consequence of the prosecution of the common purpose to give Mr Heappey a hiding. This concession was made in the context of the first issue and subject to the argument presented on the appellant’s behalf in relation to the second issue.
Mr Rapley said this argument led to two things. First, it meant the jury directions were wrong because the jury was not asked to determine whether Mr Burke knew a stabbing or other assault causing grievous bodily harm was a probable consequence of the prosecution of the common purpose. Secondly, it meant a verdict of manslaughter was not open on these facts unless the jury found that Mr Burke knew Mr Webber had a knife, which it did not. So, if the jury had been directed correctly, a verdict of not guilty of manslaughter would have resulted.
Respondent’s submissions
Mr Sinclair, who addressed this aspect of the case for the respondent, said accepting the argument advanced for Mr Burke would blur the distinction between murder and manslaughter. If Mr Burke had foreseen a stabbing, this implies that he would be acting with something close to murderous intent and suggests he may have been guilty of murder. On the appellant’s case, if he did not foresee the stabbing, he would be guilty of neither murder nor manslaughter. Mr Sinclair said the appellant’s position was at odds with authorities in both New Zealand and Canada.[79]
[79]Mr Sinclair cited to R v Jackson [1993] 4 SCR 573; and R v Rapira [2003] 3 NZLR 794 (CA).
Mr Sinclair rejected the proposition that the Court of Appeal’s approach would lead to over-criminalisation. He noted there was a wide discretion in sentencing for manslaughter, so any case where the level of criminality of the s 66(2) party is low can be met with a commensurately low sentence. However, he acknowledged that concern has also been expressed about the stigma attaching to a conviction for manslaughter. He said this needs to be kept in perspective. He noted the Supreme Court of Canada addressed this in R v Creighton.[80] In that case, McLachlin J, writing for the majority, addressed the issue of stigma in some detail and concluded that the mens rea requirement for manslaughter (foreseeability of harm) was “entirely appropriate to the stigma associated with the offence of manslaughter”.[81]
[80]R v Creighton [1993] 3 SCR 3.
[81]At 48 per L’Heureux-Dubé, Gonthier, Cory and McLachlin JJ: the converse of the stigma of a conviction for manslaughter is the risk that the victim’s death is not sufficiently recognised by the criminal law unless those involved are convicted for culpable homicide, as opposed to a lesser charge such as causing grievous bodily harm with intent to injure. See also at 56 per L’Heureux‑Dubé, Gonthier, Cory and McLachlin JJ. The High Court of Australia adopted a different approach in Wilson v The Queen (1992) 174 CLR 313. The majority in that case found the act done by the principal offender must have exposed the victim to an appreciable risk of “serious injury” as judged by a reasonable person: at 333–334 per Mason CJ, Toohey, Gaudron and McHugh JJ.
Mr Sinclair said attempts to address the risk of over-criminalisation, such as by limiting the scope of manslaughter or the approach addressed in the first ground, are inappropriate and add complexity. A simple approach, allowing for simple jury directions, is called for. He said the “overwhelming supervening event” approach adopted in Jogee could provide a safety valve to avoid unfair attribution of homicide liability, but it would not have availed Mr Burke on the facts of this case.
New Zealand cases
Counsel traversed several New Zealand authorities in the course of argument. We concentrate on four cases that we see as important in the analysis of the way in which s 66(2) should be applied.
(a) Rapira
The first case in chronological order is R v Rapira.[82] The respondent argued this case supported its position as to the correctness of the approach of the majority in the Court of Appeal in this case.
[82]Rapira, above n 79.
Rapira involved a group robbery of a pizza deliverer. One of the group hit the victim on the head with a baseball bat and he died as a result. The principal offender and others were charged with murder under s 168 of the Crimes Act (where death results from the infliction of grievous bodily injury for the purpose of facilitating the commission of another specified offence).[83] A person is guilty of murder under s 168 whether or not they meant death to ensue, or knew death was likely to ensue, from the infliction of harm.[84]
[83]Section 168(1)(a).
[84]Section 168(1).
In Rapira, the trial Judge directed the jury that secondary parties would be guilty of manslaughter in a case where the principal offender committed murder under s 168 if the secondary party knew that it was a probable consequence of the prosecution of the common purpose that the principal offender would intentionally strike someone (and death in fact resulted from that unlawful act).[85]
[85]Rapira, above n 79, at [20].
The Court of Appeal found the direction was correct;[86] if the secondary party knew the infliction of physical harm that was more than trivial or transitory was a probable consequence of prosecuting the common purpose, that party was guilty of manslaughter.[87] This aspect of Rapira was expressly approved by this Court in Edmonds in relation to situations where the principal offender is guilty of murder under s 168.[88] It is also consistent with the approach to liability under s 66(1).[89]
[86]At [35].
[87]At [31].
[88]Edmonds, above n 25, at [27], n 25. At [10], the Court said it would leave for another day whether foresight of a killing was a requirement in other culpable homicide cases. See below at [149].
[89]As discussed in R v Renata [1992] 2 NZLR 346 (CA) at 349; and noted by this Court in Edmonds, above n 25, at [27], n 22. See below at [105].
On its face, Rapira appears to add support to the respondent’s case and the approach of the majority in the Court of Appeal in this case. But the Court of Appeal has previously distinguished Rapira in R v Hartley (which we discuss next), on the basis that the common purpose in Rapira (robbery) included the use of a baseball bat to silence or incapacitate the robbery victim.[90] That also clearly distinguishes Rapira from the present case.
(b) Hartley
[90]Hartley, above n 47, at [31].
The second case is the decision of the Court of Appeal in Hartley.[91] Hartley was in fact a s 66(1) case, but Mr Rapley argued it was also relevant in the context of s 66(2).
[91]Hartley, above n 47.
In Hartley, Mr Hartley and his associates assaulted several victims on three separate occasions over a period of some hours. In the course of the second assault, Mr Hartley and the principal offender approached a victim’s car. Mr Hartley punched the victim through the window. The principal offender then pushed Mr Hartley away, pulled out a knife, and stabbed the victim. Mr Hartley did not know that the principal offender had a knife. The Court of Appeal found that Mr Hartley could not be guilty of manslaughter under s 66(1) unless it was proved that he aided or abetted offending of the type that actually occurred.[92] As that offending was a stabbing, and Mr Hartley did not know the principal offender had a knife, a conviction for manslaughter was not open.[93] The Court saw knowledge of the knife as a “convenient proxy”, on the facts of the case before that Court, for the need to prove under s 66(1) that the secondary party aided or abetted offending of the type that actually happened.[94]
[92]At [19], [22], [32] and [40].
[93]At [53] and [70].
[94]At [19].
The Court in Hartley referred to an earlier s 66(1) case, R v Renata.[95] In Renata, the Court of Appeal set out the requirements for a conviction of manslaughter in relation to a principal offender and a secondary party charged under s 66(1)(b), (c) or (d). The Renata Court said:[96]
… where one person unlawfully assaults another by a dangerous application of force, the assailant is guilty of manslaughter if death is caused even in a most unexpected way. Unlikelihood of the result is relevant only to penalty, although it may be of great significance in that regard. No different principle applies to a person who is guilty of the assault as a secondary party under s 66(1)(b), (c), or (d).
[95]At [22]–[24], discussing Renata, above n 89.
[96]Renata, above n 89, at 349.
That statement of the law was approved by this Court in Edmonds.[97] However, the Hartley Court saw Renata as distinguishable. It described the outcome in Renata in these terms:[98]
[24] Although the fact death resulted in Renata was unexpected, the death was the result of an act (kicking or punching) within the contemplation of the parties. That is in contrast with the present case [Hartley] where the act contemplated was punching or hitting with the fists in some way but not stabbing.
[97]Edmonds, above n 25, at [27], n 22.
[98]Hartley, above n 47.
That distinction is significant given the facts of the present case, where giving Mr Heappey a hiding involved an assault, but the death was caused by a stabbing. The Court in Hartley found there was no foundation for a manslaughter verdict in that case because “the assault which occurred was completely different from that which the appellant was assisting”.[99] Later, the Court observed that, because the definition of assault is so all-embracing, it was necessary when applying s 66(1) “to capture the reality of what the [secondary] party was said to be involved in”.[100]
[99]At [53].
[100]At [54].
Mr Rapley argued the reasoning in Hartley applied equally to liability under s 66(2), noting that, in its reasoning, the Hartley Court had discussed cases under s 66(2)[101] and its common law equivalent in the United Kingdom.[102] However, as noted earlier, the position in common law jurisdictions has changed somewhat since Hartley was decided. It should be noted that one of the judges who decided Hartley pointed out in a later case that the “knowledge of the weapon” approach in Hartley is not necessarily applicable in s 66(2) cases.[103]
[101]At [27]–[36].
[102]At [41].
[103]R v Vaihu [2009] NZCA 111 at [86] per William Young P. See also [40]–[45] per Chisholm and Heath JJ.
The significance of Hartley in the present case is that it reflects a careful delineation of what the secondary party was said to have aided or abetted, acknowledging that aiding a minor assault does not necessarily mean the aiding also applied to the much more serious assault that ensued. There is a question as to whether the same approach is applicable in a case involving s 66(2).
The respondent argued Hartley was wrongly decided. We do not agree. It reflects a correct concentration on the particular facts of the case that subsequent s 66 cases have adopted.
In relation to the common law of England and Wales, and Jamaica, the approach in Jogee contrasts starkly with that in Hartley. In Jogee, the Court made this obiter observation:[104]
[96] If a person is a party to a violent attack on another, without an intent to assist in the causing of death or really serious harm, but the violence escalates and results in death, he will be not guilty of murder but guilty of manslaughter. …
[104]Jogee, above n 28. The Court did, however, acknowledge that this may not be the case if death is caused by an overwhelming supervening act by the principal offender: at [97]. We discuss this above at [68].
As noted by the majority, the 2007 case of R v Hartley put a gloss on Renata in cases where the principal’s act is totally different from that which the party was assisting.[302]
[302]R v Hartley [2007] NZCA 31, [2007] 3 NZLR 299 at [53]. The gloss is discussed in more detail in the reasons of the majority above at [103]–[110].
Regarding s 66(1), New Zealand caselaw therefore proceeds on the basis that, to be a party to manslaughter under s 66(1), a party need only be intending to be a party to the unlawful act which caused the death (even if death from that unlawful act occurred in an unexpected manner), except in cases where the act causing death is “completely different from that which the [defendant] was assisting”.[303]
Section 168
[303]Hartley, above n 302, at [53].
The only cases qualifying the Tomkins line of authority requiring foresight of death under s 66(2) concern allegations that a defendant was a party to murder under s 168.
The Queen v Morrison was a s 168 case which concerned a plan formed by Mr Morrison and Mr Wilson to escape police custody.[304] A police constable was killed in the course of the escape. While both men had attacked the constable with weapons (Mr Morrison with a broken broom handle), Mr Wilson’s blows with a long‑handled scrubber were found by the Judge to be the “real and ultimate” cause of death.[305] Mr Wilson pleaded guilty to the murder. Mr Morrison was found guilty of murder as a party after trial. Mr Morrison appealed against his conviction. The first ground related to the scope of the common purpose. The second ground related to the adequacy of the directions on manslaughter.
[304]The Queen v Morrison [1968] NZLR 156 (CA).
[305]At 159.
The possibility of manslaughter was only raised briefly by the trial Judge.[306] The appellant submitted that the Judge should have directed the jury that manslaughter would be the appropriate verdict if the common intention had been to inflict harm short of grievous bodily harm.[307] The Court of Appeal found that there was no evidentiary basis for a finding such as this: once the common intention to use force to escape was accepted by the jury then it was clear that the force used would be such as to render the constable incapacitated via the infliction of grievous bodily harm.[308] The trial Judge had also directed that, if the common intention was not the infliction of grievous bodily harm, then the jury had to acquit altogether. The Court’s only specific comment on this statement was that it seemed, on the facts, to be favourable towards the appellant.[309] Despite these references to grievous bodily harm, the question of the necessary degree of foresight for manslaughter was not directly at issue.
[306]At 160.
[307]At 161.
[308]At 161.
[309]At 160–161.
R v October concerned two defendants who had been convicted as parties to s 168 murder under s 66(2).[310] Citing Morrison and Hardiman,[311] the Court of Appeal held that the convictions could be sustained given that the evidence supported a finding that the parties could have foreseen that one of the others could well cause grievous bodily injury for the purposes of committing the offence.[312] Professor Orchard commented that “it seems doubtful whether the evidence would have supported an inference that a killing was known to be a real risk”, such that the application of Morrison and Hardiman was “essential for the decision”.[313]
[310]R v October CA477/95, 31 July 1996.
[311]Morrison, above n 304; and Hardiman, above n 301.
[312]October, above n 310, at 13–14.
[313]Orchard, above n 301, at 94. Though Orchard also noted that there does not appear to have been argument on this question.
Similarly, R v Tuhoro concerned a s 168 murder charge.[314] It relied on Hardiman and Morrison to find that it was not necessary for a party to s 168 murder under s 66(2) to contemplate a risk of killing.[315] The Court of Appeal distinguished Tomkins on the basis that s 167 was not at issue.[316] Thus it saw the s 168 cases as different from the earlier line of authority and distinguished rather than overruled Tomkins.
[314]R v Tuhoro [1998] 3 NZLR 568 (CA).
[315]At 571–573.
[316]At 572.
R v Rapira also concerned a s 168 murder charge.[317] In that case, the Court of Appeal said that a secondary party under s 66(2) would be guilty of manslaughter if they knew that the infliction of physical harm (which was more than trivial or transitory) was a probable consequence of the prosecution of the common purpose (in that case to rob).[318] The Court said, referring to Renata and Hardiman, that it is not necessary for the offence of manslaughter that death be intended or foreseen by a secondary party.[319]
[317]R v Rapira [2003] 3 NZLR 794 (CA).
[318]At [31].
[319]At [32], referring to Renata, above n 281; and Hardiman, above n 301. The Court of Appeal in Rapira also relied on the definition of “offence” which was then located in Crimes Act 1961, s 2(1): at [31]. That definition was relied on to opposite effect by Cooke P in Tomkins, above n 274, at 256. In any event the definition was removed by the Crimes Amendment Act (No 4) 2011, s 6.
I comment that the passage which the Court of Appeal in Rapira cites from Hardiman is explicitly about s 66(1). Further, Renata only concerned s 66(1). Neither case, therefore, is authority for the proposition that foresight of death is not necessary for s 66(2).[320]
[320]But see the comments on Hardiman above at [278], n 301.
The Chief Justice is of the view that these decisions relating to s 168 are wrong and that, based on the statutory wording, foresight of death is required in the case of both s 167 and s 168.[321] The Crown submits that the fact of the principal being guilty under s 167 or s 168 cannot logically affect a party’s liability for manslaughter and that foresight of death is not necessary for either.
[321]See the reasons of Winkelmann CJ above at [200]–[203].
I reject the Crown’s proposition that foresight of death is not necessary where the principal is guilty under s 167 as this is contrary to the Tomkins line of cases and the statutory wording. I would prefer not to comment at this stage about the s 168 cases as this is not a s 168 case. There is force in what the Chief Justice says about the statutory wording applying equally to s 168 cases but it is also true that, under s 168, it is not necessary for the principal to intend death or even to possess subjective knowledge of the likelihood of death.[322] It may be arguable that the s 168 cases are distinguishable given that section’s status as a special section expanding the definition of murder.
Edmonds
[322]Rapira, above n 317, at [25]; and Edmonds, above n 273, at [26].
In Edmonds v R, this Court expressly affirmed that foresight of death was not needed in the case of s 66(1) parties (citing Renata)[323] and where the case related to murder under s 168.[324] The Court left open the issue of whether foresight of death might be required for manslaughter under s 66(2) where a principal is convicted of murder under s 167.[325]
Summary of caselaw
[323]Edmonds, above n 273, at [27], n 22, citing Renata, above n 281, at 349.
[324]Edmonds, above n 273, at [27].
[325]At [27].
Tomkins is part of a long line of authority holding that subjective foresight of killing is needed for s 66(2) party liability for manslaughter if a killing equating to murder is not foreseen. This line of authority has not been overruled by the Court of Appeal. This Court in Edmonds left the issue open. Later cases are either under s 66(1), which has a different basis of liability, or concern party liability where a principal is charged under s 168, not where the principal is charged under s 167.
Commentators
As indicated by the majority in the Court of Appeal, Adams on Criminal Law said at the time of the Court of Appeal decision, relying on Rapira, that foresight of death is not necessary for manslaughter liability under s 66(2).[326] Some other commentaries broadly agree with Adams.[327] However, an earlier version of Adams acknowledges that it used to be thought, prior to Rapira, Tuhoro, October and Hardiman, that knowledge of a possible killing was necessary under s 66(2).[328]
[326]CA judgment, above n 246, at [63] per Brown and Moore JJ, citing Simon France (ed) Adams on Criminal Law – Offences and Defences (looseleaf ed, Thomson Reuters, updated to 9 March 2022) at [CA66.28(3)(b)].
[327]Simon France and John Pike Laws of New Zealand Criminal Law (online ed) at [85]; and AP Simester and WJ Brookbanks A to Z of New Zealand Law (online looseleaf ed, Thomson Reuters) at [20.6.5.3(5)].
[328]Robertson, above n 275, at [CA167.23(2)].Similarly, Bruce Robertson (ed) Adams on Criminal Law (2nd student ed, Brookers, Wellington, 1998) at [167.23(2)] states that foresight of killing “may” be necessary and cites Tomkins, above n 274; Greening, above n 288; and Doctor, above n 292.
As noted above, the Tomkins line of authority has not been overruled. Renata and Hardiman were s 66(1) cases and the other cases cited, including Rapira, concerned s 168. To the extent that Adams and other commentators treat these cases as removing the statutory requirement for foresight of a killing under s 66(2) where s 167 is at issue, they are in error.
By contrast, Professor Orchard’s view was that, under s 66(2), foresight of a killing is necessary for both murder and manslaughter because the relevant offence is culpable homicide, and it is an essential ingredient of culpable homicide that there is a killing.[329] Professor Tolmie takes a similar view.[330] I agree.
[329]Orchard, above n 301, at 93.
[330]Julia Tolmie “Uncertainty and Potential Overreach in the New Zealand Common Purpose Doctrine” (2014) 26 NZULR 441 at 465–466. For a recent reiteration of the same claim see Julia Tolmie and others Criminal Law in Aotearoa New Zealand (LexisNexis, Wellington, 2022) at 584–585 and 587–588, although the text does say that the “overwhelming body of authority” is currently contrary to the position that foresight of death is required: at 585.
Professor Orchard saw the issue as different under s 66(1) (including where the principal is guilty under s 168) where, based on Renata, it is enough that a party is intentionally assisting or encouraging[331] an unlawful (and, he added, dangerous) act from which death results.[332] He argued that strict liability is expressly provided for principals under s 168 and parties under s 66(1), but that this is not true of s 66(2).[333]
[331]I use these terms to cover “aiding”, “abets”, “incites”, “counsels” or “procures” in s 66(1).
[332]Orchard, above n 301, at 93.
[333]At 94.
Garrow and Turkington on Criminal Law cites Tomkins (and the enumeration of its principles in Te Moni) in its discussion of the level of foresight necessary for manslaughter.[334] It cites Renata as emphasising that Tomkins was directed at s 66(2) rather than s 66(1).[335] It does not, however, cite Renata or Rapira as having overturned Tomkins in the case of manslaughter under s 66(2).
Possible issues with requiring foresight of killing
Crown submissions
[334]Stephanie Bishop and others Garrow and Turkington’s Criminal Law in New Zealand (online ed, LexisNexis) at [CRI66.14(i)].
[335]At [CRI66.14(i)].
The Crown submits that what it refers to as a “purposive” approach should be applied to s 66(2), such that foresight of death is not required. The Crown also raises four possible issues with requiring foresight of death:
(a)it would mean a different test for liability for principals and secondary parties under s 66(2);
(b)it would mean a distinction between s 66(2) liability for manslaughter and s 66(2) liability for s 168 murder;[336]
(c)it would mean a different test for liability under s 66(1) and (2); and
(d)it would mean that the mens rea requirement for manslaughter would approximate that for reckless murder under s 167(b) and (d).
[336]I have already discussed this point above in the context of caselaw.
There are also issues as to over‑criminalisation and under‑criminalisation.
Purposive interpretation
The Crown maintains that it is taking a purposive interpretation. I do not agree. It is of course true that part of the purpose of s 66(2) is to broaden the scope of liability in certain cases, criminalising parties who would not otherwise be criminalised by s 66(1). But this is only where there the statutory requirements are met: where there is a common purpose, where the offence occurred in the prosecution of the common purpose and where a party has subjective appreciation of the commission of the offence as a probable consequence. A broad notion of the purpose of s 66(2) being to expand criminal liability to include joint enterprises cannot be used to remove or water down these clear statutory requirements.Purposive interpretation still requires the words of a statute to be interpreted and therefore does not allow them to be overridden.[337]
Different tests for principals and secondary parties
[337]Legislation Act 2019, s 10(1).
The different test for principals and secondary parties under s 66(2) arises out of the statutory wording and the explicit mens rea requirement contained in s 66(2) of knowledge of the commission of the offence as a probable consequence, which in this context means knowledge of culpable homicide. As a matter of principle, it is not surprising that the secondary party, who did not cause the death, should only be convicted if there is foresight of death, unlike the principal, who committed the actual act that caused the death.
Different tests for liability under s 66(1) and (2)
It is also not necessarily surprising if there are different tests for liability under s 66(1) and (2). As Professor Simester has noted, accessory liability under s 66(1) is based on knowledge of the essential elements that constitute the principal’s offence and intent to assist or encourage the principal in light of that knowledge.[338] On the other hand, joint enterprise liability under s 66(2) effectively consists of two offences: the one committed by the principal and the party together and the further offence committed by the principal alone.[339] The basis of party liability in such a case is foreseeability.[340]
[338]AP Simester “The Mental Element in Complicity” (2006) 122 LQR 578 at 583–590; and see also Ahsin, above n 250, at [82]–[83] per McGrath, Glazebrook and Tipping JJ. See also the comments of Cooke P regarding the distinction between s 66(1) and (2) above at [278].
[339]Simester, above n 338, at 593.
[340]At 594.
Professor Orchard did not see different bases of liability under s 66(1) and (2) as anomalous:[341]
Section 66(2) codifies a “wider principle” governing secondary liability … and it would not be anomalous if it were held that its seemingly clear terms demand more knowledge of likely consequences than is required of a principal, or an aider, abettor, counsellor or procurer [under s 66(1)].
[341]Orchard, above n 301, at 94.
Professor Tolmie also does not see any anomaly in the different tests under s 66(1) and (2) either, due to the different bases of liability[342] and the fact that the secondary party’s role under s 66(2) is likely to be more remote:[343]
… the liability of the party is both more remote causally and may be considerably less in terms of mental culpability than the principal. Requiring foresight of death by the party limits liability for homicide (including … manslaughter) under s 66(2) to those cases where they committed to a course of offending in spite of knowing that they were risking, at the least, the accidental death of another human being. As it has been said, an “actus reus deficit is usually counterbalanced by a mens rea surplus”.[[344]] It is worth noting that even in the absence of a homicide conviction, if the party foresaw the violence that caused the victim’s death but not the death itself, they would still be liable as a party for the relevant interpersonal violence offence that resulted in death.
[342]Tolmie, above n 330, at 465–466.
[343]At 466 (footnote substituted).
[344]This quote is based on the original in Beatrice Krebs “Joint Criminal Enterprise” (2010) 73 MLR 578 at 590.
For similar reasons to Professors Tolmie and Orchard, I do not see the presence of different standards between s 66(1) and (2) and between principals and parties under s 66(2) as arbitrary, anomalous or inconsistent. Rather, this distinction is based on the need to tailor the requirements so that offenders are not exposed to criminal sanction beyond their level of individual culpability. As the majority of the High Court of Australia stated in Wilson v R, the law must develop toward a closer correlation between moral and legal responsibility and should seek to confine the scope of constructive crime to what is “truly unavoidable”.[345]
Reckless murder
[345]Wilson v R (1992) 174 CLR 313 at 327 per Mason CJ, Toohey, Gaudron and McHugh JJ.
On the issue of maintaining a distinction with reckless murder, I accept the submissions made by Te Matakahi | Defence Lawyers Association New Zealand that, to commit reckless murder, the offender must know that their actions are likely to cause death and still take the conscious decision to proceed. To be a party to reckless murder under s 66(2), the secondary party would need to know this was the mens rea of the principal. By contrast, for manslaughter the secondary party does not need to know anything about the principal’s thinking. The secondary party must simply foresee that death may ensue. This means that a meaningful distinction remains.
Adams suggests that the reckless element of s 167(b) is primarily useful in that it highlights that the risk taken must have no social utility.[346] My view is that the recklessness element is an added requirement and therefore provides a further basis of distinction with foresight of killing. The Court of Appeal has doubted the usefulness of the element, but it has also suggested that the recklessness element:[347]
… may have been included to emphasise that what is required in the way of knowledge on the part of the offender is a conscious appreciation of the likelihood of causing death rather than a degree of knowledge on his part in some lesser or vaguer sense, as for example, possession of the necessary general knowledge to have appreciated the risk if he had paused to think about it.
[346]Downs, above n 299, at [CA167.06].
[347]R v Dixon [1979] 1 NZLR 641 (CA) at 647.
But the issue of whether the word “reckless” adds a distinct element is to some extent beside the point. Reckless murder requires conscious awareness of a risk and a subsequent decision to act on that risk, beyond mere inadvertence.[348] It requires “proof of the accused’s actual appreciation of the risk at the material time”.[349] Regardless of whether this mens rea requirement is rooted in the word “reckless” or in s 167(b) as a whole, the fact that a secondary party must foresee this mens rea in a principal is sufficient to distinguish reckless murder from manslaughter under s 66(2).
[348]At 647; and R v Harney [1987] 2 NZLR 576 (CA) at 579–581.
[349]Harney, above n 348, at 579.
The same point holds with regard to s 167(d). A party to murder under that section would have to foresee that the principal was going to do an act for an unlawful object that the principal knows is likely to cause death. A party to manslaughter would, by contrast, not need to foresee anything about the principal’s mens rea.
Over-criminalisation and under‑criminalisation
The Crown submits that requiring knowledge of the weapon and adding a requirement to foresee serious violence may mean that it is difficult to secure a conviction in group violence cases where it is unclear who knew of or used a weapon (the same point presumably also applies to requiring foresight of death).
As to this, if the principal cannot be identified, then that is a failure of proof. The potential lack of a conviction of the principal through lack of evidence does not justify putting a gloss on the statutory wording to include all secondary parties. This would in fact lead to over-criminalisation. In any event, in cases such as this, the secondary party would be liable for the assault, which was the unlawful purpose agreed. This means that the secondary party would not be immune from criminal sanction. A secondary party might also be liable under s 66(1) based on the authorities outlined above.[350]
[350]See above at [278]–[280].
In any event, while policy considerations in relation to the dangers of group violence may be relevant, they cannot justify departing from the plain requirements of s 66(2) in this case.
The Crown replies to concerns about over-criminalisation by submitting first that manslaughter is flexible, encompassing varying degrees of culpability and allowing varying sentences to accommodate these degrees of culpability. Secondly it submits that the stigma attached to manslaughter should not be overstated: in particular, it is less than that attached to murder. It is also said that it is appropriate to recognise the seriousness attached to the taking of a human life.
In my view a component of the stigma of manslaughter is the deliberate performance of acts which cause the loss of a human life, not the bare fact of the death alone. This is reflected in the requirement that unlawful acts which cause death must be objectively dangerous.[351] By contrast, a conviction for manslaughter under s 66(2) (absent foresight of death) risks attaching the stigma of taking a human life to someone who did not kill, did not encourage or aid in killing and did not even anticipate death. The requirement of foresight of death reflects the relevant fact that the s 66(2) party did not directly cause death. Nor did they, absent foresight, deliberately perform acts which aided or abetted a killing.
Summary
[351]See above at [278], n 299.
Foresight of killing is required for a party to be convicted of manslaughter under s 66(2) where a principal has been convicted of murder under s 167. This follows from the plain wording of the statute: killing is an element of “the offence” (killing by an unlawful act)[352] for the purposes of s 66(2) and this is recognised (correctly) in the Tomkins line of cases and by some commentators, including Professors Tolmie and Orchard. The Tomkins line of cases has not been overruled. The New Zealand cases relied on by the Court of Appeal majority, the majority (in this case), the Crown and other commentaries like Adams concern different statutory provisions: s 66(1) and s 168.
[352]Where the killing by unlawful act does not amount to murder.
The position reached by the majority in this Court and that contended for by the Crown adds an unwarranted gloss to the statute. Any possible issues with requiring foresight of killing do not justify a departure from the plain wording of the statute. Indeed, a principled approach supports the opposite position.[353]
Result
[353]See above at [299]–[300].
As indicated above, I agree with the majority that the appeal must be allowed, but for different reasons. Like the Chief Justice, I would allow the appeal because the trial Judge did not direct that the jury would have to be satisfied that Mr Burke foresaw a killing as a probable consequence of the prosecution of the common purpose.[354]
[354]Above at [244]. Mallon J also would have required foresight of death but considered that Mr Burke would still have been found guilty even with this requirement: CA judgment, above n 246, at [185]. I agree with the Chief Justice’s criticisms of Mallon J’s approach: above atI do agree with the majority that it is not possible to be sure, based on the assumed findings of the jury,[355] that Mr Burke would nevertheless inevitably have been found guilty of manslaughter as a party under s 66(1).
[355]See above at [258]. I note that I agree that the s 66(1) direction was made correctly in accordance with Hartley.
I also agree with the majority that we should give the parties an opportunity to comment on any consequential orders.[356]
[356]Above at [174]–[176].
Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent
Woodward Chrisp, Gisborne for Criminal Bar Association New Zealand as Intervener
[244]–[246].
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