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Supreme Court revisits joint enterprise liability for culpable homicide

3 May 2024

| Author: Jamie Dierick

Crimes Act 1961 – s 66(2), secondary liability for joint enterprise – incorrect verdicts given to jury – foreseeability of probable consequence of common purpose required – manner of assault not foreseeable – presence of a weapon not foreseeable – foreseeability of a killing required

Burke v R [2024] NZSC 37 per O’Regan, Williams, Kós, and Glazebrook JJ and Winkelmann CJ


Justin Burke was an associate of the Nomads Motorcycle Club. After an altercation between the president of the Nomads and a less senior gang member, Shayne Heappey, it was decided Heappy should be punished by Burke and Matthew Webber, another Nomad associate. This punishment would involve Heappey getting a “mean hiding”.

As part of the punishment, Webber attacked Heappey and repeatedly stabbed him with a knife. Heappey died as a result of the assault. While Burke participated in the assault, including punching Heappey and placing him in a chokehold, he did not have any knowledge of the knife. Burke ceased his attack once he realised Heappey had been stabbed.

Webber pleaded guilty to Heappey’s murder. Burke was charged as a party to murder and pleaded not guilty. At trial, he was found guilty of manslaughter.

The directions given to the jury by the trial judge meant it was possible that Burke could be convicted under s 66(2) of the Crimes Act 1961 if the jury found he was not aware that Webber had a knife and that Burke foresaw only an assault that was likely to cause non-trivial harm.

Burke appealed his conviction and sentence to the Court of Appeal. Both were dismissed.

On 21 October 2022, the Supreme Court granted leave for Burke to appeal against the conviction. The court considered the scope of joint enterprise liability under s 66(2) in relation to culpable homicide.

Section 66 concerns party liability. Section 66(2) allows for liability where two or more people form a “common intention” to prosecute an unlawful purpose. Each will be a party to an offence where one or more of the parties carries out the offence. However, the commission of the offence must have been known to be a “probable consequence” of carrying out the common purpose.

The key issue is what a secondary party to manslaughter must foresee as a probable consequence of carrying out the common unlawful purpose that was formed between the offenders.

The majority of the court, comprising O’Regan, Williams and Kós JJ, concluded that the appeal should be allowed under the first ground, which concerned the directions the trial judge gave to the jury.

The majority said the jury should have been told that the defendant needed to foresee, as a probable consequence of the common purpose, that his co-accused would assault the victim in the manner that occurred. The jury also needed to be satisfied that the defendant knew the co-accused had a weapon.

The common purpose in this case did not involve using a lethal weapon and Heappey was assaulted in a radically different way than had been previously agreed.

The minority, comprised of Winkelman CJ and Glazebrook J, also concluded that the appeal should be allowed but under a second ground, which concerns the requirement of foreseeing a killing as a probable consequence of the prosecution of the common purpose.

The minority stated that an expansive interpretation of s 66(2) risks over-criminalisation and goes beyond the scope of what is contemplated by s 66(2).

The court was also asked to revisit the meaning of “probable consequence” under s 66(2).

The majority and Glazebrook J did not reconsider the meaning and adopted the wording from previous authorities which defines a “probable” consequence as “a substantial or real risk” and something that “could well happen”. The majority did not consider that directing a jury that “probable” means “likely” would help them much. However, the majority noted that there was some merit in the Victorian bench book suggestion of telling a jury that the word “probable” was used in contrast to merely “possible”.

Winkelmann CJ disagreed, finding that the language of “could well happen” and “real or substantial risk” is too far removed from the statutory test.


Applicable principles: Joint enterprise – knowledge and intent – consistency in liability – risk of over-criminalisation.

Held: The appeal was allowed and Burke’s conviction for manslaughter was set aside.


Jamie Dierick is an employed criminal defence barrister


Burke 2024-NZSC-37

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