Burke v R

Case [2022] NZCA 279


IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA65/2021
 [2021] NZCA 279

BETWEEN

JUSTIN RICHARD BURKE
Appellant

AND

THE QUEEN
Respondent

Hearing:

11 November 2021

Court:

Brown, Mallon and Moore JJ

Counsel:

J R Rapley QC and S M Grieve for Appellant
F R J Sinclair and A M Harvey for Respondent

Judgment:

29 June 2022 at 10.30 am

JUDGMENT OF THE COURT

A      The appeal against conviction is dismissed.
B      The appeal against sentence is dismissed.

____________________________________________________________________

REASONS

Brown and Moore JJ  [1]
Mallon J (dissenting)  [151]

BROWN AND MOORE JJ

(Given by Moore J)

Table of Contents

Para No

Introduction  [1]
Background  [5]
The trial  [26]
Approach to appeal  [31]
Appeal against conviction  [32]
  Appeal against sentence  [34]
Grounds of appeal against conviction  [35]
Did the Judge misdirect the jury in relation to the level of
foreseeability required for s 66(2) liability for manslaughter?                [36]
  Submissions  [37]
  Statutory framework  [42]
  Is foresight of death a requirement for secondary party liability for
  manslaughter under s 66(2)?  [45]
  Did the Judge misdirect the jury so as to give rise to a miscarriage
  of justice?  [67]
Did the Judge fail to give a propensity direction where one
was required?  [77]
  Submissions  [78]
  Did the Judge fail to give a propensity direction, so as to give rise to
  a miscarriage of justice?  [80]
Did the Judge fail to adequately direct the jury as to
Mr Burke’s right to silence?  [88]
  Submissions  [89]
  Did the Judge fail to adequately direct the jury as to Mr Burke’s right
  to silence, so as to give rise to a risk of a miscarriage of justice?              [91]
Did the Judge fail to adequately direct the jury as to previous
inconsistent statements?  [99]
  Submissions  [100]
  Did the Judge fail to direct the jury as to previous inconsistent statements,
  so as to give rise to a miscarriage of justice?  [102]
Did the Judge fail to give a direction about the admission of facts
document where one was required?  [108]
Did the prosecutor fail to present the Crown case in a measured and
dispassionate way?  [113]
  Duties of the prosecutor  [117]
  Did the prosecutor improperly refer to Mr Burke by his nickname?           [119] 
  Did the prosecutor improperly question a witness about a newspaper
  article reporting on the case?  [125]
  Did the prosecutor review the evidence in an unbalanced manner?           [129]
  Did the prosecutor improperly draw a nexus between Mr Burke and
  Mr Webber’s text message referring to Mr Heappey as a “weed
  in the garden”?  [131]
  Conclusion on the Crown’s conduct of the case  [136]
Did the sentencing Judge impose a sentence that was manifestly
excessive?  [138]
Result  [149]

Introduction

  1. Justin Burke was charged as a party to the murder of Shayne Heappey with the principal, Matthew Webber.  Mr Webber pleaded guilty to murder before trial.  At his trial in the Christchurch High Court, the jury acquitted Mr Burke of murder but found him guilty of manslaughter.  Osborne J sentenced Mr Burke to five…

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AGLC
Burke v R [2021] NZCA 279
Case
[2022] NZCA 279
Decision Date

CaseChat Overview and Summary

The appeal against conviction and sentence brought by Justin Richard Burke was dismissed by the Court of Appeal of New Zealand. The appeal against conviction centred on the directions given to the jury by the trial Judge on common purpose liability for manslaughter under s 66(2) of the Crimes Act 1961. Burke's conviction for manslaughter and sentence of five years and two months' imprisonment were upheld. The Court held that Burke's involvement in the common purpose to punish Shayne Heappey for disrespecting the gang president was sufficient for a manslaughter conviction, despite the extreme violence of the attack being a departure from the plan. The Court also rejected claims of prosecutorial misconduct and found that the sentence imposed was not manifestly excessive.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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