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
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
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.