BURKE v R [2022] NZCA 279

BURKE v R [2022] NZCA 279 [29 June 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA65/2021[2022] NZCA 279BETWEEN JUSTIN RICHARD BURKEAppellantAND THE QUEENRespondentHearing: 11 November 2021Court: Brown, Mallon and Moore JJCounsel: J R Rapley QC and S M Grieve for AppellantF R J Sinclair and A M Harvey for RespondentJudgment: 29 June 2022 at 10.30 amJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The appeal against sentence is dismissed.____________________________________________________________________REASONSBrown and Moore JJ [1]Mallon J (dissenting) [151]BROWN AND MOORE JJ(Given by Moore J)Table of ContentsPara NoIntroduction [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 offoreseeability required for s 66(2) liability for manslaughter? [36]Submissions [37]Statutory framework [42]Is foresight of death a requirement for secondary party liability formanslaughter under s 66(2)? [45]Did the Judge misdirect the jury so as to give rise to a miscarriageof justice? [67]Did the Judge fail to give a propensity direction where onewas required? [77]Submissions [78]Did the Judge fail to give a propensity direction, so as to give rise toa miscarriage of justice? [80]Did the Judge fail to adequately direct the jury as toMr Burke's right to silence? [88]Submissions [89]Did the Judge fail to adequately direct the jury as to Mr Burke's rightto 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 previousinconsistent 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 factsdocument where one was required? [108]Did the prosecutor fail to present the Crown case in a measured anddispassionate 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 newspaperarticle 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 andMr Webber's text message referring to Mr Heappey as a "weedin the garden"? [131]Conclusion on the Crown's conduct of the case [136]Did the sentencing Judge impose a sentence that was manifestlyexcessive? [138]Result [149]Introduction[1] Justin Burke was charged as a party to the murder of Shayne Heappey with theprincipal, Matthew Webber. Mr Webber pleaded guilty to murder before trial. At histrial in the Christchurch High Court, the jury acquitted Mr Burke of murder but foundhim guilty of manslaughter. Osborne J sentenced Mr Burke to five years andtwo months' imprisonment.[2] Mr Burke appeals both his conviction and sentence. The primary focus of theconviction appeal is the Judge's directions to the jury on common purpose liability formanslaughter under s 66(2) of the Crimes Act 1961 (Crimes Act). The challengerelates to the nature and extent of a secondary party's foreseeability: whether it wasnecessary for the jury to be satisfied that Mr Burke foresaw Mr Heappey's death as aprobable consequence of pursuing the common purpose he shared with Mr Webber, oras the Judge directed, a lesser level of foreseeability was available.[3] The other grounds of appeal relate to claims that the Judge misdirected the juryand assertions of prosecutorial misconduct.[4] The sentence appeal is advanced on the sole basis that the starting point wastoo high, resulting in the imposition of a sentence which was manifestly excessive.Background[5] Mr Burke arrived in Christchurch from the North Island in November 2018.There he had been closely associated with the Nomads gang (Nomads). On his arrivalin Christchurch he aspired to become a patched member of the Christchurch Chapterof the Nomads. He met the President of the Christchurch Chapter of the Nomads,Randall Waho. He subsequently began a relationship with Mr Waho's stepdaughter,Leonie Cook.[6] A seemingly minor dispute, which quickly escalated, arose between Ms Cookand a Nomads member, Shayne Heappey. It related to Mr Heappey's use of a stolencar which Ms Cook considered was hers. She also alleged he owed her $300 for drugs.[7] It seems that despite Ms Cook's attempts to resolve their differences,Mr Heappey was stubbornly resistant. Frustrated by his conduct, Ms Cook elevatedher complaints to her stepfather. This step, consistent with gang convention,necessarily brought into question Mr Heappey's respect for the Nomads and, moreparticularly, the authority of Mr Waho as President of the Christchurch Chapter.[8] Mr Waho attempted to resolve the dispute by having the vehicle returned.He also attempted to arrange a number of meetings with Mr Heappey.Despite Mr Heappey appearing to agree to attend, he repeatedly failed to show.Unsurprisingly, this conduct aggravated the rising tensions between Mr Heappey andthe Nomads.[9] Against this background, and no doubt conscious of his increasingly perilousposition, Mr Heappey sent a message to Mr Waho on 6 December 2018. He acceptedhe needed to be punished and agreed to make himself available for that purpose thefollowing evening. His message read:1I can't do it tonight, no excuse Mad, I'm not all there tonight Mad, I'll comeover tomorrow to see you and Matty to collect my punishment. I have noexcuses, just not up to it, yeah.[10] "Mad" is a generic nickname used by Nomads affiliates towards others inthe gang. "Matty" was a reference to Mr Webber, Mr Burke's co-defendant who wasthen the Nomads' enforcer and disciplinarian. He had a reputation for ruthlessnessand unpredictability.[11] Despite his offer to present himself the following night, Mr Heappey didnot show.[12] The immediate events preceding Mr Heappey's killing started in the earlyevening of 8 December 2018, when Messrs Burke, Webber and Waho met at theRussley home of Richard Sims, another patched member of the Nomads. The Crowncase was that there Mr Sims gave knives to Messrs Waho and Webber. The Crownalleged that Mr Burke saw them being distributed and Mr Webber demonstrated to1 Spelling and grammatical errors in the original message have been corrected.him how duct tape could be added to the blade to prevent it bending during use.The defence disputed that this occurred.2 CCTV footage then shows Messrs Burkeand Webber together at the nearby Bush Inn shopping centre for about 20 minutesbetween 6.57 pm and 7.16 pm.[13] Later that evening, Mr Sims sent Mr Heappey a text asking him where he lived.Mr Heappey told him. Shortly afterwards, Mr Sims arrived at the address, picked himup and drove him back to his home. Mr Sims then sent a text to others, includingMr Webber and Ms Cook, advising that he had Mr Heappey at his address and to getMr Webber there as soon as possible.[14] Mr Burke and Ms Cook then drove to the address of Lucan Moore, a gangassociate, where Mr Webber was temporarily residing in a caravan. Mr Moore'sevidence at the trial was that he had become increasingly concerned aboutMr Webber's recent behaviour. Mr Moore said that Mr Webber had nearly killed himthree weeks earlier and he had seen Mr Webber in possession of a small knife.According to Mr Moore, when Ms Cook and Mr Burke arrived and told Mr Webberthat Mr Heappey had been found, Mr Moore detected "a look" in Mr Webber's eyethat made him worried Mr Webber might do something dangerous, adding that anyonewho did not know Mr Webber well would not have noticed.[15] As they left Mr Moore's address, Mr Moore said that Mr Webber showed hima small knife which he put in his pocket. Mr Moore said he did not think that Mr Burkeknew Mr Webber was armed. Mr Moore said that he was sufficiently concerned tosay to Mr Webber as he was leaving "don't fuckin kill him, eh, he's one of our mates".Mr Moore's evidence was that when this was said Mr Burke was about five to sixmetres ahead. But he also said the comment was "loud enough for anyone else to hearthat was around us".[16] Ms Cook, with Messrs Burke and Webber, arrived at Mr Sims' house shortlybefore 11.00 pm.2 Mr Burke's knowledge of the knife was a key ingredient of liability for murder, as reflected inthe trial Judge's question trail. Given that the jury found Mr Burke guilty of manslaughter,the Judge ultimately sentenced Mr Burke on the basis that he did not know Mr Webber had andwould use a knife in his attack on Mr Heappey.[17] There are differing accounts as to how it was that Mr Heappey ended up outsidethe house in the presence of Messrs Webber and Burke. In particular, whether theyescorted him outside or he went outside on his volition. What does appear to beuncontroversial is that outside the house, Mr Webber attacked Mr Heappey witha knife. He inflicted 14 stab wounds. These included defensive wounds consistentwith Mr Heappey trying to fend off or grab the knife. The pathology evidence wasthat Mr Webber would have to have been standing very close to Mr Heappey; the samesort of distance as if punching. For how long the assault took place is uncertain, butaccording to the Crown's pathologist it could have occurred over a period of between10 to 15 seconds or over a few minutes.[18] Those inside the house could hear scuffling and sounds consistentwith fighting. This was followed by a bang on the door. One of the occupantsopened it. Mr Heappey fell through the door. Mr Burke was grappling with him ashe staggered back inside. Mr Burke fell on him and punched and strangled him.[19] Mr Heappey was taken to hospital when those present realised how grave hisinjuries were. He was declared dead at approximately 11.36 pm.[20] The post-mortem examination discovered numerous cutting or stab woundsconsistent with being caused by a knife, with three to the chest. One wound, 12 cmdeep, was the major operating cause of the blood loss from which Mr Heappey died.[21] Mr Burke fled to Dunedin where he was arrested on 17 December 2018.[22] When asked what the plan was and what was supposed to have happened toMr Heappey, Mr Burke replied that it did not relate to the car or the drug debt.Mr Burke said: it was over his disrespect to, the President and all that type of stuff okay,what's meant to happen him, he's just meant to get told off maybe, a punchor two but, that other person [Mr Webber] they weren't even meant to but [Mr Webber] took it under [his] own control and took the person outsideon [his] own and done what [he] did Basically it was hey, it was just give him a rark up, that's all it was, give hima rark up, just a little, reminder of who he is, and where he is, and what he's apart of, and life goes on, we don't want to hurt him, cause we don't want tolose him, that type of [23] When asked whether Mr Webber had been on methamphetamine, Mr Burkesaid that he was and agreed that Mr Webber was "mad".[24] As for his own role, Mr Burke said that he had been inside with the door closedwhen the attack on Mr Heappey started. He said he went outside to ask questions ofMr Heappey and grabbed him to calm him down. He said: I'm trying to save him, like I didn't even know he'd been stabbed, I wastrying to save him from getting a mean hiding you know like come on bro,just calm down, cos I know how these situations go, normally it's just a meanhiding [25] Those inside the house said that Mr Burke had been outside with Mr Webber.The trial[26] Mr Burke was charged as a party to murder under ss 167 and 66 of theCrimes Act. He pleaded not guilty and went to trial.[27] The Crown's case for murder was that there was a shared plan to punishMr Heappey for his disrespect of Mr Waho and the Nomads. The Crown alleged thatMr Burke and the other offenders shared a common purpose to give Mr Heappey"a mean hiding".3 The Crown submitted to the jury that Mr Burke was guilty ofmurder because he knew Mr Webber could well kill Mr Heappey, that eventualitybeing a probable consequence of their common unlawful intention to violentlypunish him.[28] The defence, on the other hand, submitted to the jury that for Mr Burke to beliable for either murder or manslaughter, he must have foreseen death as a probableconsequence of their plan to assault Mr Heappey. This, the defence submitted,3 The Crown's submissions to the jury referred to the level of violence in various ways, including"a hiding, serious violence" and "a mean hiding, serious violence".required Mr Burke to know that Mr Webber had a knife because there was no otherevidence of serious violence which would mean death was a probable consequence.[29] The defence's submission was at odds with the Judge's directions as reflectedin the question trail. This addressed the circumstances in which Mr Burke could befound guilty of manslaughter, irrespective of whether he was aware that Mr Webberwas armed with the knife. The relevant part of the question trail read:21. Are you sure that Mr Burke knew that Mr Webber knew theassault would be dangerous, being likely to cause harm that wasmore than trivial?If all 12 of you answer yes, you must find Mr Burke guilty of manslaughterunder alternative 2. Do not continue.22. Are you sure that Mr Burke, despite not knowing that Mr Webberpossessed a knife, knew that Mr Webber knew the assault wouldbe dangerous, being likely to cause harm that was more thantrivial?If all 12 of you answer yes, you must find Mr Burke guilty of manslaughterunder alternative 2. Do not continue.(Emphasis original.)[30] The jury convicted Mr Burke of manslaughter.Approach to appeal[31] Mr Burke now appeals against his conviction and sentence.Appeal against conviction[32] Appeals against conviction are brought under s 232 of the Criminal ProcedureAct 2011 (CPA). This Court must allow the appeal if it is satisfied that the jury'sverdict was unreasonable or that a miscarriage of justice has occurred for any reason.4A miscarriage of justice includes any error, irregularity, or occurrence in or in relationto or affecting the trial that:54 Section 232(2)(a) and (c).5 Section 232(4).(a) has created a real risk that the outcome of the trial was affected; or(b) has resulted in an unfair trial or a trial that was a nullity.[33] A real risk arises if there is a reasonable possibility that a more favourableverdict might have been delivered if nothing had gone wrong.6Appeal against sentence[34] Appeals against sentence are brought under s 250 of the CPA. This Court mustallow the appeal if it is satisfied that for any reason there was an error in the sentenceimposed on conviction and a different sentence should be imposed.7 The focus is onthe sentence imposed, rather than the process by which it is reached.8 The Court willnot intervene where the sentence is within the range that can properly be justified byaccepted sentencing principles.9 To this end the concept of a "manifestly excessive"sentence is well-engrained and there is no reason not to use it.10Grounds of appeal against conviction[35] Six grounds are advanced on the conviction appeal:(a) whether the Judge misdirected the jury in relation to the level offoreseeability required for liability for manslaughter under s 66(2) ofthe Crimes Act;(b) whether the Judge failed to give a propensity direction where one wasrequired;(c) whether the Judge failed to adequately direct the jury as to Mr Burke'sright to silence;6 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110] per Tipping J.7 Section 250(2).8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].9 At [36].10 At [35].(d) whether the Judge failed to give a direction about the admission of factsdocument where one was required;(e) whether the Judge failed to adequately direct the jury as to previousinconsistent statements; and(f) whether the prosecutor failed to present the Crown case in a measuredand dispassionate way.Did the Judge misdirect the jury in relation to the level of foreseeability requiredfor s 66(2) liability for manslaughter?[36] The crux of this aspect of the appeal is the extent to which a party charged withcommon purpose liability for manslaughter must foresee that the principal offenderwould inflict violence upon the victim and the level of violence which needs to havebeen foreseen.Submissions[37] Ms Grieve, who presented this aspect of the argument for Mr Burke, submittedthat for the jury to have returned a verdict of guilty for manslaughter under s 66(2),Mr Burke was required to foresee the risk of violence at a level where death was aprobable consequence of pursuing the common purpose. Ms Grieve submitted thatthe Judge erred by misdirecting the jury in relation to the level of foreseeabilityrequired for s 66(2) liability for manslaughter. She submitted that s 66(2) liability formanslaughter requires that the secondary party foresees the risk of an unlawful actwhich is sufficiently serious that it could cause death in pursuit of thecommon purpose.[38] Ms Grieve observed that the Crown opened their case by pitching the commonpurpose shared by all co-defendants at a "hiding", but adjusted that formulation as thetrial evolved, eventually closing the Crown case by putting the level of violenceforeseen at a "mean hiding". She submitted that to justify such a submission, eitherthe Crown needed to prove that Mr Burke and Mr Webber amended their plan to inflictmore serious violence, or that the original plan to beat Mr Heappey was with sufficientviolence that Mr Burke could have foreseen death resulting. She submitted thatthe Crown's formulation of the alleged plan to commit serious violence was whollyreliant on Mr Burke's knowledge of the knife. In the absence of evidence establishinghe knew Mr Webber was armed with the knife, the jury could not have concluded thatMr Burke would have anticipated violence to a level where death might result.[39] Relatedly, Ms Grieve submitted that the Judge was wrong in principle toinclude in the question trail that Mr Burke would be guilty of manslaughter if he hadknowledge that the assault would be dangerous, despite not knowing Mr Webber hada knife. She submitted that this direction rendered knowledge of the knife incidentalto liability. She submitted that as a consequence a conviction for manslaughter wasinevitable, and a miscarriage of justice resulted.[40] Mr Sinclair, for the Crown, responded that because proof of manslaughter fora principal does not require foresight of death, party liability under s 66(2) cannotrequire more.[41] He submitted that the Judge did not misdirect the jury on the mens rearequirement for manslaughter as a secondary party; the requisite mens rea is limitedto knowledge of the attack that caused the death. It is thus wrong to say that becausemanslaughter is a homicide offence, a s 66(2) party must appreciate death as aprobable consequence. To do so is to conflate the separate requirements of mens reaand causation. Such an approach elevates the required knowledge and mentalcomponent of manslaughter to something approaching reckless murder under s 167(b)of the Crimes Act. He thus submitted that the question trail correctly stated thelegal requirements.Statutory framework[42] Section 171 of the Crimes Act provides that culpable homicide not amountingto murder is manslaughter. Homicide may be culpable or not culpable.11 One routefor finding a homicide is culpable is where the killing of a person was by an11 Crimes Act 1961, s 160(1).unlawful act.12 This was the basis on which the Crown said liability for culpablehomicide in this case arose.[43] Manslaughter based on an unlawful act requires the unlawful act to bedangerous. As in R v Church, the test has historically been phrased as requiring thatthe unlawful act "be such as all sober and reasonable people would inevitablyrecognise must subject the other person to, at least, the risk of some harm resultingtherefrom, albeit not serious harm".13 More recently, in R v Lee, this Court confirmedthat "it must be an act likely to do harm to the deceased or to some class of persons ofwhom he was one".14 The harm must be "more than trivial".15 However, since theunlawful act must be a substantial and operative cause of death, "it is likely to berelatively unusual for it not to meet the threshold".16[44] Section 66(2) provides that where two or more persons form a commonintention to prosecute any unlawful purpose, and to assist each other therein, each ofthem is a party to every offence committed by any one of them in the prosecution ofthe common purpose if the commission of that offence was known to be a probableconsequence of the prosecution of the common purpose. A "probable consequence"is something that "might well happen" or "could well happen",17 or, in other words,something where there is a "a real risk, a substantial risk" of it happening.18Is foresight of death a requirement for secondary party liability for manslaughterunder s 66(2)?[45] We turn to consider whether foresight of death is a requirement for secondaryparty liability for manslaughter under s 66(2).12 Section 160(2)(a). An "unlawful act" is defined by s 2 as "a breach of any legislation".13 R v Church [1966] 1 QB 59 (Crim App) at 70.14 R v Lee [2006] 3 NZLR 42 (CA) at [137], quoting R v Myatt [1991] 1 NZLR 674 (CA) at 679.15 R v Lee, above n 14, at [138].16 At [138]. See also Q (CA418/2016) v R [2017] NZCA 185 at [26] for the requirement that the actbe a "substantial and operative" cause of death.17 Uhrle v R [2016] NZSC 64, (2016) 28 CRNZ 270 at [5], n 6; and R v Gush [1980] 2 NZLR 92 (CA)at 94.18 Ahsin v R [2014] NZSC 153, [2015] 1 NZLR 493 at [100], quoting R v Piri [1987] 1 NZLR 66(CA) at 79.[46] In submitting that it is, Ms Grieve relied upon the Supreme Court's decision inEdmonds v R.19 There the Court proceeded on the basis that the trial Judge was correctto direct the jury that a secondary party was liable for manslaughter only if he or sheappreciated that the killing of somebody was a probable consequence of theprosecution of the common purpose:[10] The Judge was of the view that the appellant could be found guilty ofmanslaughter only if the jury were satisfied that he appreciated that the killingof somebody was a probable consequence of the prosecution of the commonpurpose. It is arguable that this was unnecessary, as we will explain later.For present purposes, it is sufficient to note that we are leaving for another dayresolution of the issue whether the Judge was correct and we will address thisappeal on the assumption that he was.[47] Ms Grieve submitted that Edmonds should be read as authority for theproposition that a secondary party is liable for manslaughter only where that partyforesees the risk of the principal facilitating the common purpose by performing anunlawful act which is sufficiently serious that it could well cause death. She submittedthat the Supreme Court's approach was to establish that knowledge by tying it to thenature and seriousness of the common purpose.20[48] In our view the Supreme Court's comments should not be interpreted asdecisively as counsel presses. It was unnecessary for that Court to prescribe thestandard of knowledge applicable to secondary parties. That is because nothing turnedon it in Edmonds. The dispositive issue concerned the appellant's knowledge of theweapon used to cause death. The Court determined the case on the basis that therewas no need for the Crown to prove that the appellant knew that a stabbing (as opposedto some other form of death-causing violence) was a probable consequence of the19 Edmonds v R [2011] NZSC 159, [2012] 2 NZLR 445.20 In this context the Supreme Court commented at [49] that "[t]he lower the criminality of thealleged common purpose, the easier it will be to establish, but perhaps the harder it will be to showthat the ultimate offence was recognised to be a probable consequence of its implementation. Thehigher the criminality of the alleged common purpose (and thus the closer it is to the offenceeventually committed), the more difficult it may be to establish that particular defendants formedthe intention to prosecute that common purpose, but the easier it will be to infer that suchdefendants (that is, those who did form that intention) knew that the ultimate offence was aprobable consequence of its implementation." In our view the Supreme Court's reasoning heresimply explains that the prosecutor in this type of case is faced with a strategic decision as towhere to pitch the level of criminality allegedly captured by the common purpose. This does notbear upon where the mens rea requirement for secondary party liability should be set.The requisite standard will, however, be a factor in the prosecutor's decision. The prosecutorwould not allege that the common purpose involved, for example, a group merely yelling threatsat the victim without inflicting actual violence.implementation of the common purpose.21 Either formulation of the common purposenecessarily meant that the appellant would have foreseen the risk of the principaloffender causing death.[49] It follows that this was the reasoning which led the Court to find there had beenno miscarriage of justice. Not only did the Court say that it was "leaving for anotherday resolution of the issue whether the Judge was correct" but, significantly in ourview, the Court commented that it doubted whether the standard of knowledge wasproperly pitched at that level:[27] Both under the Crimes Act and at common law very limited mens rea(not extending to an appreciation that death is likely) is required to beestablished against a principal to justify a conviction for manslaughter.The same is true of a party who is prosecuted as an aider and abettor (underboth s 66(1)(b), (c) or (d) and under the Accessories and Abettors Act) and atcommon law under common purpose liability principles. Whether this is alsoalways the case in New Zealand under common purpose principles is unclear.It certainly is where the principal has been found guilty of murder under s 168but the practice in other culpable homicide cases has been to requirethe Crown to show that the secondary party subjectively appreciated that deathwas a probable consequence of the implementation of the common purpose.As we have said, it is arguable whether this is correct, but it is unnecessary forus to address this further in these reasons.(Footnotes omitted.)[50] Despite not explicitly stating what the requisite standard of knowledge is, it isapparent that the Supreme Court contemplated that it may well sit below a subjectiveappreciation that death was a probable consequence of the implementation of thecommon purpose. In our view it is sufficient for present purposes to observe that thecomments in Edmonds do not support Ms Grieve's submission to the extentshe suggests.21 At [54].[51] The Crown, on the other hand, relies on R v Rapira.22 This concerned theaggravated robbery of a delivery driver where the principal offender fatally struckthe victim in the head with a baseball bat. This Court commented:23[22] A secondary party under s 66(2) of the Crimes Act is liable for "everyoffence" committed by another party to a common intention to prosecute anyunlawful purpose if the commission of "that offence" was known to be aprobable consequence of the prosecution of the common purpose. If theoffence committed by the principal is murder on the basis of s 168, a secondaryparty will be guilty of murder if he knows that the principal intends to causegrievous bodily injury for the facilitation of a specified offence. Just asintention to kill or knowledge that death is likely to ensue is not necessary forthe liability of the principal under s 168, it is not necessary for a secondaryparty. (Emphasis added.)[52] Significantly, the Court's comments concern only secondary liability formurder under s 168, the so-called "felony murder" provision, rather than s 167. That iswhy the Court went on to distinguish R v Hamilton, R v Tomkins and R v Te Moni.24[53] Hamilton and Tomkins were both cases where the principal offender wascharged under s 167. The Court commented that in such cases, a secondary party formurder under s 66(2) must know the offence, that is an intentional killing or causinggrievous bodily injury likely to cause death, is a probable consequence of theprosecution of the common purpose.25 While the standard for party liability for22 R v Rapira [2003] 3 NZLR 794 (CA).23 Citing R v Morrison [1968] NZLR 156 (CA); R v Hardiman [1995] 2 NZLR 650 (CA) at 652;and R v Tuhoro [1998] 3 NZLR 568 (CA) at 572–573. See also R v P (No 3) [2015] NZHC 1424.That case concerned a robbery of a dairy where the principal offender killed a shopkeeper witha knife. The principal offender was charged with murder under s 168. Lang J held that liabilityfor manslaughter under s 66(2) required the Crown to prove that the secondary party knew thatthe intentional infliction of some physical harm (not being transitory or trifling) on an occupantof the store was a probable consequence of carrying out the unlawful common purpose.24 At [23]–[25], citing R v Hamilton [1985] 2 NZLR 245 (CA); R v Tomkins [1985] 2 NZLR 253(CA); and R v Te Moni [1998] 1 NZLR 641 (CA).25 At [24].manslaughter is lower, the Court considered that it still required an appreciation of therisk of killing. For example, in Tomkins the Court commented that:26The common feature of the rather less grave cases is that the subjectiveforesight necessary to make the accused guilty of the murder as a party islacking. Nevertheless he will be guilty of manslaughter if the jury are satisfiedthat he knew that, as knives were being carried, a killing could well eventuate— even by their use in some way or circumstances totally unexpected.[54] In Te Moni, however, the trial Judge's direction prescribed a lower standard.The case concerned a group of offenders who entered a bank with the intention ofrobbing it. The robbery went wrong from the outset. It culminated in the principalkilling a bank teller with a shotgun.27[55] The principal was charged with murder under both ss 167 and 168.28This Court noted that it was "impossible to say which of the four intents the jury foundproved".29 There was evidence to support a verdict on any of the bases advanced bythe Crown, although it was unlikely that the jury decided the case on the basis of anactual intent to kill under s 167(a).30[56] The trial Judge directed the jury that under s 66(2) the secondary parties wouldbe liable for murder if those parties "knew there was a substantial or real risk that[the principal offender] would kill with murderous intent in the circumstances whichin fact arose".31 The trial Judge continued:32If the others, that is not the one with the gun, intend such injury, they wouldbe guilty of murder. However, if such injury was not intended by the others,26 R v Tomkins, above n 24, at 256. The Court also phrased the standard as "if he knew only that atsome stage in the course of the carrying out of the criminal plan there was a real risk of a killingshort of murder, he will be guilty of manslaughter. So too if he foresaw any real risk of murderbut it was committed at a time or in circumstances very different from anything he evercontemplated: so different that the jury are not satisfied that the murder should fairly be regardedas occurring in the carrying out of the plan. In the latter case they can still convict of manslaughterif satisfied that he must have known that, with lethal weapons being carried, there was anever-present real risk of a killing in some way."27 R v Te Moni, above n 24, at 643–644.28 At 645–646. Specifically, the principal offender was charged under s 167(a) (intent to causedeath), s 167(b) (intentional bodily injury known to be likely to cause death and reckless whetherdeath ensued), s 167(d) (unlawful act likely to cause death) and s 168(1)(a) (intentionally causinggrievous bodily injury to facilitate the commission of kidnapping or robbery or both; or facilitatingflight, avoiding detection, or resisting lawful apprehension).29 At 646.30 At 646.31 At 647.32 At 648.they must be acquitted of murder, but having engaged in an enterprise whichenvisaged some degree of violence, albeit nothing more than fright, they willbe guilty of manslaughter.[57] This Court noted that the above direction overstated the requirement ofintention (insofar as it referred to secondary parties having an intention to cause deaththemselves, rather than knowledge of the risk of the principal offender doing so).33However, there was no basis for the appellants to complain because that error operatedin their favour.34 If the overstated intention requirement is excised from thetrial Judge's direction, the relevant standard for manslaughter as a secondary party isinvolvement in "an enterprise which envisaged some degree of violence".[58] In our view this expression sets the standard at the correct level (albeit not in away we would phrase it). Our reasons follow.[59] First, this approach is consistent with the statutory language. A secondaryparty under s 66(2) is liable for the commission of an offence if "that offence wasknown to be a probable consequence of the prosecution of the common purpose".Where "that offence" is manslaughter, the principal offender commits the offence bydoing an unlawful act that is likely to do more than trivial harm to the victim, with thatunlawful act being causative of death. For the reasons discussed, there is norequirement that the principal offender foresees the risk of death. The secondary partycan thus foresee the actus reus and non-specific mens rea elements of manslaughterbeing a probable consequence of the common purpose without appreciating the riskof death. The secondary party need only foresee the risk of an unlawful act that islikely to do more than trivial harm. We do not accept that the statutory languageimports an elevated requirement that a secondary party foresees the risk of death.[60] Secondly, this interpretation is consistent with logic. If secondary partyliability for manslaughter required a party to foresee the risk of death, the distinctionbetween reckless murder and manslaughter would be rendered illusory. A secondaryparty who did not foresee the risk of death would be guilty of neither murder normanslaughter. However, if the secondary party was required to foresee the risk of33 At 648.34 At 648.death resulting from the common purpose, how could the jury not find that theprincipal was reckless as to whether death ensued? In that case the secondary partywould be liable for both reckless murder and manslaughter. Such an approach leadsto an absurdity; either the secondary party foresaw the risk of death and is thus liablefor both reckless murder and manslaughter, or they did not foresee such a risk in whichcase they would be acquitted of any form of culpable homicide.[61] Thirdly, such an interpretation is congruent with the orthodox approach to asecondary party charged with aiding and abetting manslaughter under s 66(1)(b), (c)or (d). The Supreme Court has noted that in such a case there is a "very limitedmens rea" requirement "not extending to an appreciation that death is likely".35In R v Renata, this Court phrased the standard as:36 where one person unlawfully assaults another by a dangerous applicationof force, the assailant is guilty of manslaughter if death is caused even in amost unexpected way.[62] There is nothing about the statutory language of s 66(2) vis-à-vis that of s 66(1)which indicates that a heightened mens rea is required for the former. Both are phrasedby reference to the particular offence committed by the principal offender and logicallyshould be consistent with the elements of that offence. The co-offenders are, of course,parties to the same offence.[63] Fourth, this approach is consistent with the view of the learned authors ofAdams on Criminal Law, who comment that:37 in cases involving manslaughter by unlawful act there is no requirementthat principal and secondary parties under s 66(1) must foresee a risk of deathas a consequence of an unlawful act. The same principle must also apply tosecondary parties to manslaughter under s 66(2). To hold that a secondaryparty under s 66(2) must know that death is a probable consequence would beto require proof of something which is not an element of manslaughter byunlawful act and which is not required of the principal party, who actuallycauses death, nor of secondary parties under s 66(1)(b)–(d).35 Edmonds v R, above n 19, at [27].36 R v Renata [1992] 2 NZLR 346 (CA) at 349.37 Simon France (ed) Adams on Criminal Law — Offences and Defences (online looseleaf ed,Thomson Reuters) at [CA66.28(3)(b)].[64] Finally, although Rapira concerned s 168, that case is nevertheless useful as astatement of general principle that secondary party liability under s 66(2) should notrequire an elevated mens rea comparable to that of the principal. It is inherent in theoffence of manslaughter that the offender has a state of mind falling short of anappreciation that death might result from their actions. It cannot be correct that asecondary party to manslaughter could have as great or a greater appreciation of therisk of the principal offender's actions than the principal themselves. That isparticularly so where the co-offenders have formulated a common purpose upon whichthey expect the others to act.[65] Before leaving this aspect of the discussion we note that Ms Grieve expressedconcern that if this interpretation was correct it would result in a much lower level ofcriminality being required to support a conviction for manslaughter. However, it mustnot be overlooked that a secondary party is only liable where they participate withanother or others in prosecuting an unlawful common purpose and death is caused asa probable consequence of prosecuting that purpose. Criminalisation of the secondaryparty's conduct is not unjustified where there is an agreement to do an unlawful act,the pursuit of which causes another's death.[66] For these reasons, we conclude that a secondary party is liable formanslaughter under s 66(2) if:(a) an unlawful act likely to do more than trivial harm to the deceased wasknown by that secondary party to be a probable consequence of theprosecution of the common purpose; and(b) that unlawful act was a substantial and operative cause of death.Did the Judge misdirect the jury so as to give rise to a miscarriage of justice?[67] The Judge directed the jury that Mr Burke would be liable for manslaughterunder s 66(2) if he "knew that Mr Webber knew the assault would be dangerous, beinglikely to cause harm that was more than trivial", regardless of whether he knew thatMr Webber had a knife. Given our discussion above, that direction was correct as amatter of law.[68] At trial, the defence submitted that the jury could only find Mr Burke guilty ofmanslaughter if they were sure he knew Mr Webber had a knife. On appeal, Ms Grievesubmitted that the Crown had failed to prove that Mr Burke knew Mr Webber wasarmed, and that the Judge should have directed the jury on the relationship betweenthe common purpose and the weapon.[69] That submission rests on a false premise. As we have found, liability formanslaughter under s 66(2) requires only that the secondary offender foresee anunlawful act likely to do more than trivial harm as a probable consequence of theprosecution of the common purpose. The common purpose of administering a hidingin the gang context of the trial is easily sufficient to meet the threshold of "more thantrivial harm". Knowledge of the weapon was unnecessary. Knowledge to that levelis more consistent with elevating the level of criminality from manslaughter to murder.[70] Nor does Ms Grieve's submission that Mr Webber's actions were a majordeparture from the common purpose assist the appeal. While the Judge's question traildid not use the term "major departure", it nevertheless traversed the elements of partyliability for manslaughter, including that the stabbing was committed in the course ofcarrying out the common goal (to inflict a beating). It is implicit in returning a verdictof manslaughter that the jury concluded that Mr Burke did not foresee Mr Webberwould stab Mr Heappey causing his death. Had the jury considered that he did, theproper verdict would obviously have been one of guilty of murder. Instead, the juryfound that the common purpose involved at least the infliction of a beating. On ouranalysis the fact that death resulted from Mr Webber's actions in pursuit of thatpurpose was a sufficient basis for the jury to find Mr Burke guilty of manslaughter.[71] It is plain from the evidence, indeed it appears to have been common ground,that there was a common purpose to punish Mr Heappey by way of a hiding. In apre-trial decision admitting as evidence the convictions of Mr Sim, Mr Waho andMs Cook, Osborne J commented that those convictions were sufficient to prove thatthere was "an intention to give Mr Heappey his punishment in the form of a physicalbeating or 'hiding'".3838 R v Burke [2020] NZHC 1186 at [23].[72] It was clearly open to the jury to infer from the evidence that Mr Burke wasinvolved in that common purpose. Indeed, that Mr Burke was a part of such a planwas inherent in the defence theory of the case. Ms Grieve's opening address capturedthis point when she said:At no stage did Mr Burke contemplate that Mr Heappey would be killed, quitethe opposite. Mr Burke thought that Mr Heappey would get told off, maybegiven a hiding or punched because that was the plan. That was what wassupposed to happen and that was what the president of the Nomads gang hadordered was to happen.[73] The evidence established that Mr Burke went with Ms Cook to pick upMr Webber and take him to Mr Sim's address to administer Mr Heappey's punishment.Mr Burke knew that Mr Heappey had disrespected Mr Waho. He knew howgangs worked. He knew that punishment for disrespect often involved deliveringviolent discipline. When interviewed by the police he told them that he expectedMr Heappey to get a "speaking to" and possibly a "punch or two in the head". He said,"cos I know how these situations go, normally it's just a mean hiding".[74] Mr Burke told the police that he was inside the house during the assault.However, Mr Nicho gave evidence placing Mr Burke outside with Mr Webber whilehe attacked Mr Heappey. Further, the same witness said that Mr Burke tumbled insidegrappling with Mr Heappey and began to choke him once they fell to the floor. It wasopen to the jury to disbelieve Mr Burke's account and find that he was activelyinvolved in the attack on Mr Heappey.[75] The Crown case was that Mr Burke had a motive to assist in this way becausehe wanted to establish himself in the Nomads. He told the police that he had beenpatched "two days before this" (the ambiguity of that statement meant it was disputedwhether he was patched before or after the incident). The Crown nevertheless invitedthe jury to find that Mr Burke involved himself in the punishment to gain respectwithin the gang and ingratiate himself with Ms Cook.[76] On that evidence it was clearly open to the jury to find that Mr Burke sharedwith Mr Webber the common purpose of punishing Mr Heappey by giving hima hiding. We consider the Judge did not misdirect the jury on the standard for liabilityfor manslaughter under s 66(2). Given the meaning of "hiding" in the gang context itis unsurprising that the jury found the evidential threshold for foreseeability of morethan trivial harm was met. There was no misdirection and it follows we do not acceptthere is a risk of a miscarriage of justice.Did the Judge fail to give a propensity direction where one was required?[77] We next turn to consider the claim that the Judge failed to give a propensitydirection where, it is submitted, one was required.Submissions[78] Mr Rapley QC, who presented this aspect of Mr Burke's appeal, submitted thatthe Judge failed to direct the jury on how to use the propensity evidence relating toMr Webber's history of impulsive violence. He submitted that a critical part ofthe defence case was that Mr Burke had not known Mr Webber for long and, unlikeothers connected to the Christchurch Nomads, did not know of Mr Webber'sreputation for unpredictable volatility. He submitted that the Judge should havedirected the jury that the defence's case was that Mr Webber went beyond the commonplan to give Mr Heappey a physical hiding and that Mr Burke could not have foreseenthat this might occur.[79] Mr Sinclair submitted that the defence's position would have been wellunderstood by the jury. The Judge captured the point adequately when he summarisedthe defence case. No elaborate propensity direction was required. In any event, theevidence had no bearing on liability for manslaughter because the requisiteforeseeability of an unlawful act causing more than trivial harm to Mr Heappey wasnevertheless met.Did the Judge fail to give a propensity direction, so as to give rise to a miscarriage ofjustice?[80] The propensity evidence was adduced by the defence to support their case.39The defence submitted that Mr Webber was violent and impulsive. His criminal39 The defence obtained a ruling under s 40(2) of the Evidence Act 2006 that the evidence ofMr Webber's violent and impulsive tendencies was admissible in R v Burke [2020] NZHC 2144.history of violent offending was used to support that submission. The defence theorywas that Mr Webber had a tendency to act in such a violent and unpredictable way asto spontaneously commit murder. The defence said Mr Burke was ignorant ofthis reputation. As a consequence, he did not foresee the risk that Mr Webber mightinflict far more serious harm on Mr Heappey than he could ever have anticipated.[81] The propensity evidence here is atypical. It is more common for propensityevidence to relate to a defendant's tendency to have a particular state of mind or to actin a particular way. In those circumstances, it is necessary for the Judge to ensure thatthe evidence is properly admissible and is not used by the jury to support animpermissible line of reasoning. Where there is a risk of impermissible reasoningthe Judge should direct the jury not to use the evidence in that way or attribute to itdisproportionate weight.[82] That was not the case here. The Judge did not give a standard propensitydirection along those lines. Nor was he required to. While the evidence went towardsestablishing Mr Webber's propensity for unpredictable violence, he was nota defendant. The propensity rules in ss 41 to 43 of the Evidence Act therefore didnot apply. The evidence was relevant and admissible under ss 7 and 8. We add,however, that the Judge's omission does not give rise to a risk that justice miscarried,for three reasons.[83] First, the Judge clearly explained the purpose of the evidence whensummarising the defence case: [Mr Rapley] referred to the interaction between Mr Webber and Mr Burke— the limited knowledge that Mr Burke had of Mr Webber, and suggested toyou that Mr Webber's unpredictability and volatility were unknown toMr Burke. He described that to you, you will recall, as the key to this trial.[84] While the Judge did not make specific reference to the propensity evidence inexplaining this aspect of the defence case, the jury were nevertheless told that"Mr Webber's unpredictability and volatility" was "key to this trial". The jury wouldhave understood from the Judge's comments that the evidence of Mr Webber's violenttendencies was relevant to the question of whether Mr Webber departed from the plan.[85] Secondly, the propensity evidence formed part of and supported thedefence case. Even if the jury had misused the propensity evidence, this would havefavoured the defence. The defence adduced the evidence to show that Mr Webber wasa volatile and violent man. Had the jury attributed excessive weight to Mr Webber'sviolent character, it could only have assisted the defence in showing Mr Webber wassomeone who would be likely to depart from the plan by spontaneously stabbingMr Heappey. That would go some way towards establishing that the common purposeshared with Mr Burke did not contemplate violence where death might result.[86] Thirdly, the propensity evidence had only limited bearing on Mr Burke'sliability for manslaughter. As discussed, whether Mr Webber departed from the planwas principally relevant to Mr Burke's liability for murder. Liability for manslaughterrequires only that an unlawful act likely to do more than trivial harm to Mr Heappeywas known by Mr Burke to be a probable consequence of the prosecution of thecommon purpose. There was a wealth of evidence establishing that the commonpurpose was to punish Mr Heappey by giving him a "hiding". Propensity evidencetending to show that Mr Webber was a particularly violent and unpredictable man wasof only marginal utility in establishing Mr Burke's liability for manslaughter.[87] For these reasons we are satisfied that the Judge's failure to give a propensitydirection did not give rise to a risk of miscarriage of justice. This ground of appealfails.Did the Judge fail to adequately direct the jury as to Mr Burke's right to silence?[88] This ground of appeal concerns the directions the Judge gave on a defendant'sright to silence and, relatedly, the election not to give evidence.Submissions[89] Mr Rapley submitted that while the Judge correctly directed the jury onMr Burke's right not to call evidence in his defence, he failed to direct them thatMr Burke also had a right not to give evidence himself. He submitted that the waythe Judge expressed the direction was confusing and conflated Mr Burke'sout of Court statements with his rights and protections during the trial process.Furthermore, even if the jury was made aware of Mr Burke's right not to give evidence,they were not directed on what that meant or how it might affect their deliberations.He submitted that the standard jury direction on a defendant refraining from givingevidence is fundamental. It must be given flawlessly to avoid the risk of a miscarriageof justice.[90] Mr Sinclair submitted that, when taking into account the Judge's openingremarks, the summing up, and counsel's submissions to the jury, the thrust ofthe Judge's directions was clear. He submitted that the jury would have understoodthat Mr Burke's election not to give evidence could not be held against him.Nothing changed the presumption that he was innocent until proved otherwise andthe burden of proof lay on the Crown. He submitted that any deficiencies wereinsufficient to result in a miscarriage of justice.Did the Judge fail to adequately direct the jury as to Mr Burke's right to silence, so asto give rise to a risk of a miscarriage of justice?[91] Section 25(d) of the New Zealand Bill of Rights Act 1990 enshrines the rightof a defendant in a criminal trial not to be compelled to be a witness or to confess guilt.This right, among others, protects the defendant against the danger of having theexercise of their right not to testify at trial presented in such a fashion as to suggestthat their silence was a cloak for their guilt.40 Trial judges should direct the jury thatthe defendant has an absolute right to elect not to give evidence and that no adverseinference may be drawn from their election not to do so.[92] Mr Rapley complained that the trial Judge failed to direct the jury that the factMr Burke had not given evidence did not add to the case against him and no adverseinference should be drawn against him because he had not given evidence.[93] While it is best practice for a Judge to explicitly direct the jury in this way atboth the opening and closing of the case, the thrust of the directions actually givenwas clear.40 R v L [1996] 1 NZLR 53 (CA).[94] In the Judge's opening remarks, he told the jury that:[54] Then, at the end of the Crown case, Mr Burke also is entitled to callhis own evidence. He does not have to call evidence. He may or may not —it is entirely his choice. He has an absolute right not to give evidence, not tocall evidence, and you must not read anything into whether he gives evidenceor calls evidence. But I will say a bit more about that at the conclusion of theevidence.[95] Mr Rapley submitted that directing the jury that they "must not read anythinginto whether [the defendant] gives evidence or calls evidence" is unclear. He arguedthat this direction omitted directing the jury that it must not draw any adverse inferenceagainst Mr Burke if he did not give evidence or call evidence.[96] We accept the Judge's remarks in his summing up were less than explicit.He said:[30] The starting point of a trial is the presumption of innocence. Mr Burkeis to be treated as innocent unless and until the Crown proves its case, provesthat he is guilty. The onus of proof — that is the burden the Crown has —rests on the Crown from beginning to end. There is no onus on Mr Burke atany stage of the trial to prove his innocence. The presumption of innocencemeans that he did not need to call evidence, he did not have to establishanything in evidence, nor did he have to speak to the Police.[97] It would have been preferable for all elements relating to the defendant's rightto silence to have been covered together in the summing up. However, we are satisfiedthat when the Judge's directions in his opening remarks are read with those in hissumming up the effect is sufficiently clear. He pointed out that Mr Burke's right notto give or call evidence is absolute. He told the jury that they could not "read anythinginto" that choice. It is difficult to read into those words, taken in context, anythingother than a direction not to draw any adverse inference from Mr Burke's choice notto give evidence. We also note the way the Judge in his summing up linked the conceptof the defendant not having to call evidence with not being required to prove anything.From this combination, it would have been clear to the jury that the defendant was notrequired to give evidence and that no adverse inference should be drawn against himfrom not doing so.[98] It follows we are satisfied that this ground of appeal is not made out.Did the Judge fail to adequately direct the jury as to previous inconsistentstatements?[99] Next we turn to consider the Judge's alleged failure to adequately directthe jury as to previous inconsistent statements.Submissions[100] Mr Rapley submitted that the Judge's directions on previous inconsistentstatements were inadequate. He claimed that the Judge should have told the jury thatwhen assessing the credibility and reliability of the witnesses, and the accuracy of theirevidence, they may consider any inconsistency highlighted by their earlier statementsand the explanation the witness has given for the difference. He said the Judge shouldthen have given examples. The Judge's failure to do so gave rise to a risk of amiscarriage of justice.[101] Mr Sinclair submitted that the previous inconsistent statements whichMr Rapley referred to could not have been relied upon by the jury in convictingMr Burke of manslaughter. He submitted that the inconsistencies in the evidence,particularly Mr Moore's evidence distancing Mr Burke from the knife, werefavourable to the defence. In any event, he submitted that these inconsistencies couldhave no bearing on the issues relating to manslaughter under s 66(2). He submittedthat the common purpose to assault Mr Heappey was undisputed.Did the Judge fail to direct the jury as to previous inconsistent statements, so as togive rise to a miscarriage of justice?[102] There were several occasions during the trial where witnesses gave evidencethat was inconsistent with their previous statements.[103] The Judge gave the following direction on previous inconsistent statements:[199] You will have seen and heard a number of witnesses asked questionsabout the contents of their prior statements. The purpose of putting earlierstatements to witnesses is usually either to help refresh their memory from theearlier statement or to put to the witness apparent inconsistencies between theearlier statement and the statement now given.[200] In considering the evidence of those witnesses, having heard thewitness tested, it is for you to assess and weigh their evidence in the normalway having regard to those matters of reliability and credibility.[104] Mr Rapley complained that the Judge should have provided specific examplesof previous inconsistent statements. In our view that was unnecessary. In their finalsubmissions, both the Crown and defence referred to examples of inconsistencyrelevant to their respective cases.[105] Mr Rapley made specific reference to inconsistencies in Mr Nicho's evidence.He gave examples which included the length of time Mr Burke and Mr Webber wereoutside with Mr Heappey; whether Mr Burke could see blood when he was chokingMr Heappey; and whether Mr Heappey likely died from Mr Burke choking him.He also referred to passages of Ms Murdoch's evidence. She was inconsistent aboutthe time Mr Burke and Mr Webber were outside the house with Mr Heappey.[106] In our view, none of these inconsistencies were of moment. In a case wherethe focus was Mr Burke's knowledge and foreseeability, they were peripheral and onlyof marginal relevance. There was sufficient evidence for the jury to conclude thatMr Burke was outside with Mr Webber, that he was there for the purpose of facilitatingthe plan to give Mr Heappey a hiding, and that he participated in the assault bychoking him. No risk of a miscarriage of justice arises from the Judge not addressingspecific examples of inconsistent statements when summing up.[107] This ground of appeal fails.Did the Judge fail to give a direction about the admission of facts document whereone was required?[108] Mr Rapley claims that the Judge failed to direct the jury on the use andsignificance of the admission of facts document, where such a direction wasrequired.41 The document ran to 14 pages and contained Mr Webber's extensivecriminal history which, in itself, occupied some five pages. Mr Rapley described theevidence contained in the document as important. The complaint is that the Judgeshould have given the standard direction that the agreed facts formed part of the41 This document was prepared under s 9 of the Evidence Act 2006.general pool of evidence available to the jury. Mr Rapley submitted that the agreedfacts directly related not only to the issue of whether there was a departure byMr Webber from the agreed plan, but were also connected to the propensity evidenceand how that might be used.[109] In our view this point may be dealt with in short order. The Judge's summingup expressly addressed the agreed facts in the following way:[8] What is the evidence? You will have a pretty good idea by now.It comes from several sources. It obviously includes the oral evidence youhave heard from the witnesses who came into court, and you also have heardevidence that has been read by consent. Please don't think that the evidenceread by consent has any lesser quality, it doesn't. You will have the exhibitsthat have been produced — records of all sorts of nature. You will also havethe memoranda of agreed facts. You should consider all that evidence, boththe evidence that was led by the Crown and the documents that were referredto and produced in the course of the hearing.[110] The Judge explained to the jury that the agreed facts document (together withthe other evidence read by consent) was evidence available to the jury. The Judgenoted that such evidence was not of any lesser quality. The jury was told to considerthat evidence alongside all of the evidence led at trial. We also note that the Judge hadpreviously explained to the jury how to deal with evidence generally.[111] There is no room for doubt that the jury was made aware that the admission offacts document contained evidence admitted by consent and that these facts formedpart of the available evidence. No risk of a miscarriage of justice arises.[112] This ground of appeal fails.Did the prosecutor fail to present the Crown case in a measured and dispassionateway?[113] Mr Rapley's final ground of appeal is that the prosecutor failed to presentthe Crown case in a measured and dispassionate way. He submitted that there are fourparticular aspects of the prosecutor's conduct which fall to be considered under thisheading:(a) The prosecutor should not have referred to Mr Burke by the nickname"Menace". This inflamed bias against Mr Burke.(b) The prosecutor improperly questioned a witness about a newspaperarticle about the case. The article was irrelevant and the prosecutor'squestions were designed to elicit answers that Mr Burke had madedisparaging comments about Mr Heappey.(c) The prosecutor reviewed the evidence in an imbalanced manner andimproperly invited the jury to reject the evidence of reliable,independent witnesses and instead prefer the evidence of hostile andunreliable witnesses, the latter favouring the Crown case.(d) The prosecutor injected further colour and emotion into the Crown'sclosing address by referring to a text message sent by Mr Webber toMr Waho in which he said he had "sorted out that weed in the garden".The prosecutor improperly linked this evidence to the submission thatMr Burke was a willing and integral part of that plan.[114] Mr Rapley accepted that the conduct of the prosecutor, in and of itself, mightnot be sufficient to satisfy this Court that the appeal should be allowed, but whencombined with the other grounds advanced, it adds weight to the risk thatjustice miscarried.[115] Mr Sinclair submitted that there was no impropriety on the part of theprosecutor. Addressing each of Mr Rapley's criticisms in turn, Mr Sinclair submittedthat:(a) The newspaper article was a legitimate matter for the Crown to explore.He submitted that Mr Burke wove a narrative of being inside the house,protective of Mr Heappey and remorseful at his death. He submittedthat contrary evidence was clearly relevant to Mr Burke's credibility.(b) The Crown reviewed the evidence in a balanced manner. He submittedthat the Crown was clear that it was a matter for the jury to weigh upthe evidence and choose which to accept.(c) The prosecutor did not improperly refer to Mr Webber's text describingMr Heappey as a "weed in the garden". He submitted that the messagewas legitimately linked to the submission that there was a negativesentiment towards Mr Heappey shared among the relevantgang members. He submitted that the point being made here was thatMr Burke knew he was part of a mission to inflict violent punishmenton a miscreant.[116] Mr Sinclair further submitted that, given the difficulties with the precedinggrounds of appeal, this ground adds nothing to the case. He submitted that Mr Rapleyaccepted that these contentions are insufficient to engender a real risk of a miscarriageof justice in themselves.Duties of the prosecutor[117] The trial duties of a prosecutor are well-established.42 The prosecutor must notadopt tactics which involve an appeal to prejudice or amount to an intemperate oremotional attack on the defendant.43 Counsel is not entitled to be emotive orinflammatory. The Crown should lay the facts dispassionately before the jury andpresent the case for the guilt of the defendant clearly and analytically.44 A failure toperform these duties may give rise to a real risk of a miscarriage of justice.45[118] We turn now to consider each of the criticisms advanced by Mr Rapley.42 Stewart v R [2009] NZSC 53, [2009] 3 NZLR 425 at [19].43 At [19], quoting R v Roulston [1976] 2 NZLR 644 at 654.44 Stewart v R, above n 42, at [20], quoting R v Hodges CA435/02, 19 August 2003 at [20].45 Stewart v R, above n 42, at [34].Did the prosecutor improperly refer to Mr Burke by his nickname?[119] Mr Rapley submitted that in a case where other significant figures were notreferred to by their nicknames, the prosecutor's reference to Mr Burke's nickname of"Menace" was improper.[120] We cannot accept this criticism. Contrary to Mr Rapley's claim, variousparties, including Mr Burke, were referred to by their nicknames. The nicknames wereused by both witnesses and counsel. In fact, so frequent were these references that thejury asked for "a list of nicknames with birth names as they are being referred todifferently by witnesses and lawyers (very interchangeable)". This occurred on thesecond day of trial.[121] The use of nicknames and the references to Mr Burke as "Menace" wereinevitable and unavoidable. That was because a number of witnesses knew him onlyby that name. For example, the witness Jacob Jones explained that he only learned ofMr Burke's real name in Court:Q. Who was driving the van?A. I think Menace was.Q. Sorry you've said Menace was?A. Oh, sorry, Justin.Q. No, that's okay. Is that a nickname that you know Mr Burke by?A. Yeah. I didn't even know his name until court.[122] Other Nomads members were also referred to by their nicknames.Defence counsel used Mr Burke's nickname. They also referred to other parties bytheir nicknames, such as Mr Webber as "Matty Mad". In the context of a case wherenicknames were often the only means by which a witness knew another, it is entirelyunderstandable that these references were used in preference to a more formal formof address. Indeed, had this process not been adopted inevitable confusion would havefollowed.[123] Relatedly, we cannot accept that the references to Mr Burke as "Menace" rana risk of a miscarriage of justice. The prosecution never suggested that Mr Burke'snickname inferred he was of a violent disposition. The prosecutor did not use thenickname in her final submissions. The agreed statement of facts referenced thenickname "Menace". In any event, the Judge expressly confronted the issue when, inthe course of his summing up, he referred the jury to Mr Rapley's submission thatMr Burke's nickname was not relevant to their task:He reminded you in the context of references to Mr Burke by reference to hisnickname "Menace" that anything which injected colour or emotion is notrelevant to your task.[124] It follows we do not accept this criticism.Did the prosecutor improperly question a witness about a newspaper article reportingon the case?[125] Crown counsel examined Mr Burke's former cellmate about a newspaperarticle which Mr Burke had been given. He said Mr Burke described one of the menmentioned in the article as a "fuckin' knobhead".[126] There was some dispute over whether the person Mr Burke was referring towas Mr Heappey or Mr Webber. The prosecutor submitted that Mr Burke wasreferring to Mr Heappey. This was said to be consistent with Mr Burke's commentsto his father, recorded in a phone call, where his response to Mr Heappey beingportrayed as a "good guy" in the media was that Mr Heappey was "a gang memberas well". In closing, the prosecution further highlighted Leah Davidson's evidencethat Mr Burke told her he stabbed Mr Heappey, and Mr Moore's evidence that afterthe killing he showed him the knife and his bloodstained boxers.[127] Mr Rapley submitted that the prosecutor's purpose in pursuing this line ofquestioning was in the hope the witness would disclose disparaging comments madeby Mr Burke about Mr Heappey. In doing so, he said the prosecutor's intention wasto appeal to the jurors' emotions, biases and prejudices against Mr Burke.[128] We cannot agree. Mr Burke's negative comments to others about Mr Heappeyand the incident are relevant to the jury's assessment of the weight to be given of hisaccount to the police where, essentially, he minimised his role and claimed he hadbeen protective of Mr Heappey, and that Mr Heappey fell over and he was trying tohelp him get up. He made various exculpatory comments to others. But to thoseassociated with the Nomads, he tended to glorify and brag about what he did.The prosecutor's enquiry about the newspaper article was simply one element ofMr Burke's conduct that went to Mr Burke's credibility on the point and the weightthe jury could give to his exculpatory statements to the police and others.In combination with other similar evidence referred to by the prosecution, afoundation was set for the jury to reject Mr Burke's accounts. In her closing addressthat is what the prosecutor invited the jury to do. Taken in context, that course wasorthodox and perfectly legitimate. While we accept that evidence of Mr Burke makingdisparaging comments about Mr Heappey might evoke some prejudice, thecounter-narrative was properly before the jury for their assessment.Did the prosecutor review the evidence in an unbalanced manner?[129] Mr Rapley complained that the prosecutor selectively reviewed aspects ofthe evidence. He claimed that this was unbalanced. Mr Rapley submitted thatthe Crown advanced as credible evidence which was unreliable and inconsistent while,on the other hand, invited the jury to reject demonstrably independent evidence.By way of example, Mr Rapley referred to the independent evidence of the next-doorneighbour, Mr Shannon, who looked across into the scene when the attack was takingplace. Mr Shannon said he was unable to see anything because it was too dark and thesecurity lights were not operating. Mr Rapley contrasted this with the evidence ofMr Nicho, relied on by the Crown to say the area outside was light. Mr Rapleydescribed Mr Nicho as hostile and demonstrating animus towards Mr Burke.[130] There is nothing in this point. In closing, the prosecutor invited the jury toprefer Mr Nicho's evidence because, among other things, he was more proximate tothe assault. That is an entirely proper submission. It is not prosecutorial misconductfor counsel to invite the jury to accept relevant and admissible evidence whichsupports their case. The context and the way the prosecutor invited the jury to use theevidence was balanced and fair. After reviewing the competing accounts, she put itthis way:It's a matter for you. This is a classic, factual matter for you to weigh theevidence of what everybody said and decide whether Mr Burke was able tosee the knife that night.Did the prosecutor improperly draw a nexus between Mr Burke and Mr Webber's textmessage referring to Mr Heappey as a "weed in the garden"?[131] Mr Rapley's last criticism of the prosecutor relates to a text message sent fromMr Webber to Mr Waho saying:Madsta sorted out that weed in the garden yfh ur son will be home very soonyfh[132] Mr Rapley submitted that Mr Burke had no connection with this message, andit was improper for the prosecutor to refer to it in closing.[133] This submission misconstrues the Crown case. It was central to the Crown'stheory that there was a plan to discipline Mr Heappey. It was legitimate for the Crownto refer to this message for a number of reasons. First, it illustrated the negativesentiments of the Nomads towards Mr Heappey. This was consistent with otherevidence that he had disrespected the gang and that this was the motive forwhat followed. Secondly, it supported the narrative that Mr Waho orderedMr Heappey to be punished. Thirdly, it is evidence that when the text was sent theplan had been completed, evidently successfully and according to plan. Fourthly, themessage supported other evidence tending to prove that Mr Webber was the Nomads'enforcer who dealt with wrongdoers. From this combination it was open to theprosecutor to submit that there was a common purpose within the relevant Nomadsdiaspora, including Mr Burke, to punish Mr Heappey.[134] The prosecutor did not attempt to draw any illegitimate nexus betweenMr Burke and the text message. Rather, she submitted that Mr Burke, from his generalknowledge of how the Nomads operated, would have contemplated that the gang'senforcer might well inflict serious violence in the course of delivering punishment.[135] Viewed in that way we are satisfied there was nothing improper inCrown counsel's approach.Conclusion on the Crown's conduct of the case[136] Mr Rapley accepted that his complaints against the prosecutor would not, inand of themselves, be sufficient to give rise to a risk of miscarriage of justice. Rather,he submitted that when considered with the other grounds of appeal, their combinedeffect should lead this Court to find that justice did, in fact, miscarry and set asidethe verdict. Given that we have dismissed the other grounds of appeal, the complaintsconcerning the prosecutor's conduct cannot be dispositive.[137] The appeal against conviction is dismissed.Did the sentencing Judge impose a sentence that was manifestly excessive?[138] The sole issue to be determined on this aspect of the appeal is whetherthe Judge imposed a sentence that was manifestly excessive.[139] Osborne J proceeded on the basis that Mr Burke was found guilty ofmanslaughter on the basis of s 66(2), with the common purpose being to giveMr Heappey a "hiding".46 The Judge found the aggravating features of Mr Burke'soffending included premeditation; multiple attackers and the gang context;the vulnerability of the victim; and the serious injuries which caused Mr Heappey'sdeath.47 His Honour determined that given the lack of evidence that Mr Burke knewMr Webber had a knife, the extreme violence inflicted by Mr Webber with that knifecould not be counted as an aggravating factor against Mr Burke.48 The Judge thusconsidered that Mr Burke's offending fell within the middle of band two ofR v Taueki.49 Having regard to other similar cases,50 particularly R v Innes,51 the Judgeadopted a starting point of six years and six months' imprisonment.5246 R v Burke [2021] NZHC 136 at [13].47 At [22].48 At [23].49 At [26], citing R v Taueki [2005] 3 NZLR 372 (CA).50 At [31]–[35], citing R v Betham [2016] NZHC 2107; R v Bush [2018] NZHC 1354; R v Pomare[2016] NZHC 1346; Te Kani v R [2020] NZCA 69; R v Hura [2018] NZHC 3347; R v Brider HCWellington CRI-2004-241-116, 3 September 2009; and R v Hartley [1978] 2 NZLR 199 (CA).51 At [33], citing R v Innes [2016] NZHC 1195.52 At [29] and [36].[140] Applying discounts of five per cent for remorse,53 including an offer to pleadguilty to a lesser offence,54 and 15 per cent for personal background circumstances andrehabilitative prospects55 to the starting point resulted in an end sentence of five yearsand two months' imprisonment.56[141] Mr Rapley submitted that the Judge erred by adopting a starting point that wastoo high. He said that it failed to account for the Judge's finding that Mr Burke didnot know Mr Webber was armed with the knife. Nor did the Judge assess Mr Burke'sculpability in terms of his role, particularly when compared to his co-defendants.He submitted that the appropriate starting point was three and a half years'imprisonment.[142] Mr Sinclair submitted that the Judge properly took into account Mr Burke'srole when setting the starting point. He submitted that Mr Burke was markedly moreinvolved in the attack than his co-offenders (save for Mr Webber). He thereforesubmitted that the Judge adopted a starting point that appropriately reflectedMr Burke's culpability.[143] We are satisfied that the starting point of six and a half years' imprisonmentwas within the available range, for the reasons which follow.[144] First, we do not accept the Judge failed to take into account that Mr Burke didnot know Mr Webber was armed with a knife. The Judge dealt with this squarely whenhe listed the aggravating factors:[23] By reason of the evidence as to your knowledge in relation to the knifeand the stabbing, I do not treat the fact that [Mr Webber] committed extremeviolence with a knife as his weapon as aggravating features relevant to yourculpability. That said, the serious injuries which Mr Heappey sustained arerelevant.[145] Had the Judge determined the use of the knife as a weapon and the extremeviolence of the attack to be aggravating factors, a starting point in band three of Taueki53 At [43].54 At [47].55 At [56].56 At [57].would have been called for.57 Instead, the Judge correctly adopted a starting point inband two.[146] Secondly, we do not accept Mr Rapley's submission that Mr Burke'sculpability is on par with that of Mr Waho, Ms Cook or Mr Sim. Mr Rapley submittedthat Mr Burke's offending required only that he be a party to an assault likely to domore than trivial harm, while the other offenders' states of mind included an intentionto injure. Mr Rapley claimed that they intended to cause greater harm. While thismay be true, manslaughter is the more serious offence. A charge of manslaughterrequires that the victim die. The maximum penalty is life imprisonment.58Because the nature and seriousness of manslaughter cases are so variable, there willbe cases where the gravity of the offending is less serious than a case of causinggrievous bodily harm with intent to injure. For the reasons given by the Judge, we aresatisfied that this is not such a case.[147] The Judge dealt with this when explaining how Mr Burke's offending fellwithin band two of Taueki:[28] I consider your offending falls into the middle of band two, as set outin R v Taueki. That would suggest a starting point of six to eight years. It alsoreflects my assessment that your manslaughter conviction reflects moreculpable offending than that of Mr Waho, Mr Sim or Ms Cook. You werepresent and involved throughout the murderous attack. You alone ofMr Webber's co-offenders were present with Mr Webber at the timeMr Heappey was taken outside to be dealt with. You provided the extrapresence, which made Mr Heappey's escape and survival less likely. As youexplained to the probation officer, the point at which you punched and chokedMr Heappey was when he was trying to "take off".(Footnote omitted.)[148] We are satisfied the starting point of six years and six months' imprisonmentwas within the range available to the Judge.59 The end sentence was not manifestlyexcessive. The sentence appeal must fail.57 R v Taueki, above n 49, at [40].58 Crimes Act 1961, s 177.59 In R v Madams [2017] NZHC 81, one offender, L, participated in a group assault on a gangpresident, who later died. L pleaded guilty to manslaughter. L struck the victim with a weapononce. Mallon J adopted a starting point of seven years' imprisonment.In R v Innes, above n 50, Mr Innes was a party to manslaughter for creating a plan with theprincipal offender to obtain drugs from the occupants of a house. Mr Innes lured them out of theResult[149] The appeal against conviction is dismissed.[150] The appeal against sentence is dismissed.MALLON JTable of ContentsPara NoIntroduction [151]The meaning of "offence" [152]Section 167 charge [164]Section 168 charge [172]Conclusion [180]Introduction[151] I write this separate judgment on the trial Judge's directions on s 66(2) of theCrimes Act. I do so because I consider it was necessary to direct the jury that, for amanslaughter verdict, they had to be sure that Mr Burke foresaw a real risk thatMr Heappey would be killed in the course of carrying out the common purpose thatMr Burke shared with Mr Webber. In short, I consider that, because a killing is a coreelement of a manslaughter offence, it is part of what must be foreseen as a risk whenMr Burke committed to the common purpose. I agree with the majority judgment onall the other issues on appeal.The meaning of "offence"[152] I start with the words of s 66(2) and first principles. Section 66(2) providesthat Mr Burke is a party to the "offence" committed by Mr Webber in the prosecutionhouse and the principal offender threatened them with a knife. The principal offender eventuallystabbed one of the occupants to death with the knife. Mander J adopted a starting point of fourand a half years' imprisonment.In our view Mr Burke's offending is considerably worse than that in Innes because he anticipatedthe use of violence and then participated in the physical assault of the deceased. It is less seriousthan that in Madams, however, because he did not use a weapon and was not aware of Mr Webberdoing so.of the common purpose (a physical beating or "hiding") if "that offence" was knownby Mr Burke to be a probable consequence of the prosecution of that common purpose.[153] The content of an offence (or crime) is determined by its statutory definition.It is made up of the actus reus committed with the necessary mens rea as defined bythe statute. The actus reus is every part of the definition of the offence, other thanreferences to the required mens rea or to any excuse. It includes an act and anyconsequence of that act.60 The mens rea refers to the state of mind expressly orimpliedly required by the definition of the charged offence.61 Where the actus reus ofthe charged offence requires a person's conduct to bring about a particularconsequence, the person will have a sufficient mental state as to that consequence ifhe or she intends to bring about that consequence and also, in many cases, if he or shewas reckless as to that consequence occurring.62[154] The actus reus of murder and manslaughter is a "culpable homicide", that is, aculpable killing of another person.63 Put another way, it is an essential ingredient ofany offence of culpable homicide that there be a killing of one person by another.64For present purposes, the relevant culpability is an unlawful act.65 The unlawful act60 Richard Card and Jill Molloy Card, Cross and Jones Criminal Law (22nd ed, Oxford UniversityPress, Oxford, 2016) at 41. See also Glanville Williams Criminal Law: The General Part (2nd ed,Stevens and Sons, London, 1961) at 19: "One cannot formulate a test for the ingredients of an act,except the test of what is required by law for the external situation of a crime. Writers have oftenpointed out that there is generally no harm in a man's crooking his right forefinger, unless it is (forexample) around the trigger of a loaded gun which is pointing at someone. The muscularcontraction, regarded as an actus reus, cannot be separated from its circumstances. When thespecification of a crime includes a number of circumstances, all of these are essential and all mustbe regarded as part of the actus reus. It will be shown later that any narrower view is undesirablebecause it creates greater uncertainty and also because it leads straight to haphazard strictresponsibility in crime, enabling judges to pick and choose in different ways between elements ofa crime for the purpose of the requirement of mens rea. The view that actus reus means all theexternal ingredients of the crime is not only the simplest and clearest but the one that gives themost satisfactory results." The preceding passage was quoted in support of the definition of actusreus in Bryan A Garner (ed) Black's Law Dictionary (11th ed, Thomson Reuters, St Paul, 2019) at45–46: "actus reus 1. The wrongful deed that comprises the physical components of a crimeand that generally must be coupled with mens rea to establish criminal liability; a forbidden act<the actus reus for theft is the taking of or unlawful control over property without the owner'sconsent>. 2. The voluntary act or omission, the attendant circumstances, and the social harmcaused by a criminal act, all of which make up the physical components of a crime."61 Card and Molloy, above n 60, at 77.62 At 78.63 Crimes Act 1961, ss 158 and 160(3).64 Gerald Orchard "Strict Liability and Parties to Murder and Manslaughter" [1997] NZLJ 93 at 93.The same point is made by Julia Tolmie "Uncertainty and Potential Overreach in the New ZealandCommon Purpose Doctrine" (2014) 26 NZULR 441 at 466.65 Crimes Act, s 160(2)(a).will be murder if it is committed with murderous intent (which has an extendeddefinition) or manslaughter if it is not.66[155] It seems to me, then, that for a party to a common purpose to be liable unders 66(2) for murder or manslaughter for a killing carried out by the principal, theoffence that must be foreseen as a real risk by that party is a culpable homicide.That is, as relevant here, the real risk that the victim will be killed by the principal'sunlawful act. If that is foreseen, whether the party is guilty of murder or manslaughterwill depend only on whether the party also foresees the risk that the principal will killthe victim with murderous intent. If the party does, they have foreseen all the actusreus and mens rea components that make up the offence of murder. If the party doesnot, they have foreseen all the actus reus and mens rea components of manslaughter.67If the party does not foresee the risk of a killing, they are entitled to an acquittal on thecharge.68[156] On my view, the majority's analysis at [59] omits a central requirement fromthe actus reus component of the offence of manslaughter that must be foreseen by theparty: that the act carried out by the principal is one that causes a person to be killed.The actus reus in my view is not simply the assault. Rather, it is an assault causinga death. Both the assault and its consequences must be proven.[157] I consider the majority's approach effectively conflates the mens rea elementfor a manslaughter verdict for a principal with the mens rea component of s 66(2).The mens rea component of s 66(2) is that the "offence" committed by the principalwas known to be a probable consequence of the prosecution of the common purpose.69In other words, it must be proven that the party knew that the "offence" (being thosethings that make up the actus reus and mens rea requirements of the offence, which66 Sections 167 or 168 (murder) and s 171 (manslaughter).67 This is consistent with Ahsin v R, above n 18, at [102(e)], commenting that foreseeability of the"offence" under s 66(2) requires "foresight of both the physical and mental elements of theessential facts of the offence".68 They may be liable on a charge that relates to their participation in the unlawful common purpose,however. For example, in some cases the parties are also charged with participating in anorganised criminal group, as was the case in Edmonds v R, above n 19, where the party had pleadedguilty to that charge. Two of the parties in R v Madams, above n 59, were also charged with thisoffence and found guilty of it at trial.69 In addition to the mens rea component relating to the person's participation in the commonunlawful goal.for manslaughter is an unlawful act that causes the victim to die) was something thatcould well happen in the prosecution of the common purpose.[158] The majority makes the point at [60] that if the party is required to foresee therisk of death from the prosecution of the common purpose, there is no differencebetween a party's liability for manslaughter and their liability for murder. I am notsure this is correct. I illustrate my thinking with reference to the circumstances inthis case.[159] Mr Webber was convicted of murder. Mr Burke would also be guilty of murderunder s 66(2) if:(a) Mr Webber and Mr Burke shared a common understanding to giveMr Heappey a hiding;(b) Mr Webber and Mr Burke agreed to help each other with that (here theyagreed that Mr Webber would carry out the assault and Mr Burke wouldassist with his presence, providing "weight in numbers" and to stopMr Heappey from escaping); and(c) Mr Burke knew it could well happen that, in the course of carrying outthe hiding, Mr Webber would kill Mr Heappey with murderous intent.[160] The last element involves Mr Burke knowing that it could well happen that:(a) Mr Webber could kill Mr Heappey intending to do so; or(b) Mr Webber could kill Mr Heappey meaning to cause him serious injury,knowing this was likely to cause death, and consciously running thatrisk.[161] Mr Burke would be guilty of manslaughter under s 66(2) if:(a) Mr Webber and Mr Burke shared a common understanding to giveMr Heappey a hiding;(b) Mr Webber and Mr Burke agreed to help each other with that (here theyagreed that Mr Webber would carry out the assault and Mr Burke wouldassist with his presence, providing "weight in numbers" and to stopMr Heappey from escaping); and(c) Mr Burke knew it could well happen that in the course of carrying outthe hiding, Mr Webber would kill Mr Heappey without intending to doso, or without intending to cause him serious injury and knowing thatinjury would likely cause him to die and consciously running that risk.[162] How might Mr Burke have known this could well happen? The answer mightbe this. Mr Burke might have recognised the risk that, when carrying out the "hiding",Mr Webber might not realise his own strength and, in the heat of the moment, inflict apunch that was more forceful than he (Mr Webber) intended and without him(Mr Webber) appreciating that it was likely to cause Mr Heappey's death. If so,Mr Burke had agreed to participate in an assault that he understood might go furtherthan the plan and cause Mr Heappey's death. But that does not mean that he alsoappreciated the risk of Mr Webber doing that intentionally or intending to causeMr Heappey serious harm and knowing that it was likely to cause him to die andconsciously running that risk. Without that additional appreciation of thecircumstances in which Mr Heappey might be killed, he would be guilty ofmanslaughter and not murder.[163] I now consider the cases. Although there are some earlier cases, the key casesof this Court on the issue of parties to homicide are R v Tomkins and R v Te Moni onthe one hand (where the murder charge was brought under s 167)70 and R v Tuhoroand R v Rapira (where the murder charge was brought under s 168) on the other.7170 In R v Te Moni, above n 24, the charge of murder was laid under both ss 167 and 168, but theappeal did not discuss s 168, as is noted in R v Rapira, above n 22, at [25].71 R v Tomkins, above n 24, per Cooke and McMullin JJ, and Sir Thaddeus McCarthy; R v Te Moni,above n 24, per Eichelbaum CJ, Blanchard and Heron JJ; R v Tuhoro, above n 23, perEichelbaum CJ, Thomas and Goddard JJ; and R v Rapira, above n 22, per Elias CJ, Gault P andMcGrath J.Section 167 charge[164] Tomkins followed soon after R v Hamilton, where the Court held that unders 66(2) the party may be convicted of a lesser form of homicide than the principal andthat the jury should have been directed to consider manslaughter.72 Having made thisclear in Hamilton, the Court in Tomkins was asked to provide guidance for directionsto juries on party liability for murder or manslaughter in common enterprise cases.The Court said the "offence" under s 66 "is rightly to be seen, simply and broadly, asculpable homicide".73 It gave the following guidance for directing juries:74He will be guilty of the murder if he intentionally helped or encouraged it.He will also be guilty of it if he foresaw murder by a confederate, and in thekind of situation which arose, as a real risk. But if he knew only that at somestage in the course of the carrying out of the criminal plan there was a realrisk of a killing short of murder, he will be guilty of manslaughter. So too ifhe foresaw a real risk of murder but it was committed at a time or incircumstances very different from anything he ever contemplated: so differentthat the jury are not satisfied that the murder should fairly be regarded asoccurring in the carrying out of the plan. In the latter case they can still convictof manslaughter if satisfied that he must have known that, with lethal weaponsbeing carried, there was an ever-present real risk of a killing in some way.[165] The case involved the robbery and murder of a taxi driver, where the principalstabbed the victim and the party stood by with a knife in his hand held by his side.The party, who said he thought the knives were only to be used to frighten the victim,challenged his conviction of manslaughter. The Court concluded that verdict wasavailable because, when lethal weapons are carried, the party must know that therewas an ever-present real risk of a killing in some way.75[166] In Te Moni, the appeal issue was whether the principal had departed from thecommon plan (to carry out a bank robbery) by killing a bank teller with a firearmsupplied to the principal by the parties. The principal was convicted of murder. Theparties were charged under s 66(2). One of the parties was convicted of murder andthe other two were convicted of manslaughter. All three parties appealed.72 R v Hamilton, above n 24, at 251.73 R v Tomkins, above n 24, at 256.74 At 256 (emphasis added). The first sentence in this guidance related to s 66(1) liability.The requirements for s 66(1) liability were further discussed in R v Renata, above n 36.75 At 256.[167] In considering this issue, the Court cited in full the above quoted paragraphfrom R v Tomkins and summarised it into the following propositions:761. If the principal offender commits murder, a secondary party may beguilty of the murder (under s 66(1)) if he intentionally helped orencouraged it. 2. He will also be guilty if he knew there was a real or substantial riskthat murder would be committed by another participant, in the kind ofsituation which arose. 3. If the accused knew there was a real risk of a killing, but did notcontemplate any substantial risk that the killing would occur incircumstances amounting to murder, he will be guilty of manslaughteronly. 4. If the accused foresaw a real risk of murder, but in the event murderwas committed at a time or in circumstances very different fromanything the accused ever contemplated he will not be guilty ofmurder. But he can still be convicted of manslaughter if the jury wassatisfied the accused must have known that, with lethal weapons beingcarried, there was an ever-present risk of a killing in some way.[168] The critical parts of the trial Judge's directions in Te Moni were:77 the law recognises the difference between murder and manslaughter.The first question is whether the accused you are considering knew that theprobable consequences were that someone might be killed. He or she will be guilty of murder under s 66(2) if the Crown proves beyondreasonable doubt that he or she knew there was a substantial or real risk thatMatenga [the principal] would kill with murderous intent in the circumstanceswhich in fact arose. Where two or more persons agree to commit a robberyby one of them, armed with a loaded gun, and the circumstances are such asto justify the inference that the very least that is to be done is to use the gun tocause fear in others, there is always a likelihood that in the excitement andtensions of the occasion the gun may be used so as to cause serious injury. [169] The Court was satisfied that the Judge had clearly directed the jury on therequirement for foresight that there might be a homicide, the circumstances in whichthe homicide might be murder, and that they had a choice between murder,manslaughter and acquittal. The issue was whether the directions covered the fourthprinciple set out at [167], because the parties contended that the common purpose hadended by the time of the fatal shot. However, the Court was satisfied that the principal76 R v Te Moni, above n 24, at 649–650.77 At 647 (emphasis added). The Judge went on to give the direction set out at [56] of the majorityjudgment which, as the majority note, went further than was necessary for a s 66(2) case.had shot the bank teller in the prosecution of the common plan with the lethal weaponsupplied by the parties.78[170] The Court went on to say:79Matenga was a nervous, inexperienced young man and the risk of murdercould not possibly be described as remote. He killed Mr Brown in an attemptto avoid being overpowered and captured from the point of view of thesecondary participants it was always a real possibility that exactly what thenoccurred would happen; that a bank employee would be shot when trying tooverpower the robber with the gun. Mahaki and Te Moni might be counted aslucky to have escaped with a verdict of manslaughter, but the jury may havereasoned that they were not in as good a position as Lemalie [who wasconvicted of murder] to see the obvious risks of supplying Matenga with aloaded weapon.[171] The italicised words in Tomkins and the third proposition in Te Moni supportmy view at [155] and [161]. A killing must be foreseen by the party to a commonenterprise in order for them to be convicted of manslaughter under s 66(2), where theyare charged as a party to a murder under s 167. In both Tomkins and Te Moni themanslaughter verdicts were available because they must have foreseen the risk of akilling (because of the presence of lethal weapons and the obvious risk they involved)even if they did not foresee a killing with murderous intent.80Section 168 charge[172] In Rapira, this Court took a different position where the principal wasconvicted of murder under s 168.81 That section provides circumstances in which aculpable homicide is murder even though the offender does not mean for death toensue or does not know that death is likely to ensue. Following Tuhoro and obitercomments in R v Hardiman (approved in Tuhoro), Rapira held that: when the principalis guilty of murder under s 168, the parties would be guilty of murder if they hadknowledge that intentional infliction of grievous bodily harm by a person who waspart of the common purpose was probable; they would be guilty of manslaughter ifthey knew that the infliction of more than trivial harm was a probable consequence of78 At 649–651.79 At 651 (emphasis added).80 This is a subjective test. Tolmie, above n 64, at 462–463, notes the risk of hindsight bias withs 66(2), that is the tendency to view events as being more predictable than they really are.81 R v Rapira, above n 22.the common purpose; and there was no requirement that death be intended or foreseenby the party.82[173] I acknowledge that the Hardiman, Tuhoro and Rapira line of authorities(concerning party liability under s 66(2) on a s 168 murder charge) is arguablyinconsistent with my view that, for s 66(2) party liability on a s 167 murder charge, tohave foresight of the "offence" committed by the principal, there must be foresight ofa killing. This is because it is also a core element of the offence of murder under s 168(the offence that must be foreseen by the party) that there be a "homicide", that is thekilling of a person.[174] If my reasoning for s 66(2) liability on a s 167 murder charge applied to a s 168murder charge, the party would need to foresee that a killing of a s 168 kind could wellhappen from the prosecution of the common purpose to be guilty of murder.The different mens rea requirements between the principal and the offender wouldreflect the fact that the principal is the person who does the killing (the offenceincidental to the common purpose), whereas the party is liable because he or sheagreed to carry out a (criminal) common purpose and foresaw the risk of a death fromdoing so.83 As it has been said, an "actus reus deficit is usually counterbalanced by amens rea surplus".84[175] The reasoning in the obiter comments in Hardiman (accepted in Tuhoro andRapira) was the subject of criticism by Professor Orchard, whose comments includedthe following:85The only aspect of murder "defined in" s 168 is the mens rea which will sufficein certain cases. As to that element it will be enough under s 66(2) that a partyforesees that the principal may well act with the state of mind but, as itsterms recognise, s 168 can apply only when there has been a culpablehomicide: even murder "as defined in" s 168 requires the unlawful killing ofa human being. 82 R v Tuhoro, above n 23, at 571–573; R v Hardiman, above n 23, at 652 and 654; and R v Rapira,above n 22, at [21]–[33].83 Tolmie, above n 64, at 465–467.84 At 466, n 133, where the author attributed the quote to Beatrice Krebs "Joint Criminal Enterprise"(2010) 73 MLR 578 at 590.85 Orchard, above n 64, at 94 (citations omitted).The dicta in Hardiman allow[s] convictions for murder although theaccused did not advert to an essential ingredient of the actus reus of the crime.The imposition of such strict liability in this context may be thought to bewrong in principle but in the case of principal offenders it is expresslyprovided for in s 168, and in the case of secondary parties under s 66(1).This result is at least not clearly inconsistent with the terms of the Act. But itis submitted that this is not true of s 66(2) and that when that is relied uponthe rule is unsupportable. Section 66(2) codifies a "wider principle"governing secondary liability and it would not be anomalous if it were heldthat its seemingly clear terms demand more knowledge of likely consequencesthan is required of a principal, or an aider, abettor, counsellor or procurer.[176] While Professor Orchard's views were considered but not adopted in Tuhoro,86the additional knowledge of likely consequence required of a party under s 66(2) thanof the principal is consistent with my view about what it is that the party must foreseeto be convicted of manslaughter when the charge is brought under s 167. As discussedin Tuhoro, the difference in approach to s 66(2) liability when the charge is s 168 (asopposed to s 167) reflects the policy of s 168. When s 168 is charged, the offence forthe purposes of s 66(2) "is to be taken to be murder as defined in s 168(1)(a)".87The Court preferred a unanimous decision of the Supreme Court of Canada on thepoint as more correctly giving effect to the purpose of ss 168 and 66(2).88 The Courtexplained:89Section 168 reflects a policy deeming persons to be guilty of murder whenthey have intentionally inflicted serious injury for the purpose of facilitatingthe commission of specified offences at the higher end of the scale. Uniquely,in relation to the definition of murder, foresight of a killing is not required; It is consonant with the intent of the legislature that parties to the offendingshould likewise be liable to the fullest extent notwithstanding that in their casetoo they did not foresee the death of the victim. Having regard to theincreasing number of persons prepared to combine for major criminal activity,as [counsel for the Crown] submitted it is neither contrary to public policy norunjust to hold them to account on the same basis as the actual perpetrator ofany crimes within the scope of their criminal plan.[177] Both Tuhoro and Rapira distinguished Tomkins rather than overruled it.90They do not hold that when the murder charge is brought under s 167 it is unnecessary86 R v Tuhoro, above n 23, at 572–573.87 At 573. Professor Orchard's point is that s 168 only defines the mens rea and still requires akilling.88 R v Trinneer [1970] SCR 638, followed in R v Jackson [1993] 4 SCR 573.89 R v Tuhoro, above n 23, at 573. The policy rationale was cited with approval in Rapira, aboven 22, at [21].90 R v Tuhoro, above n 23, at 577; and R v Rapira, above n 22, at [24].for a party charged under s 66(2) to foresee the risk of death to be guilty of eithermurder or manslaughter.[178] That leads me to whether Edmonds v R requires a different approach to a s 167murder charge for s 66(2) party liability.91 That case was about whether a party unders 66(2) needed to have knowledge of the weapon used by the principal who carriedout the killing to be guilty of manslaughter, where the agreed common purpose was toinflict serious violence and to help each other with that.[179] However, as the majority has set out earlier, the Supreme Court raised whetherit was necessary or correct to direct juries in culpable homicide cases, other than unders 168, that the party must subjectively appreciate that death was a probableconsequence of the prosecution of the common purpose.92 Certainly, that is a signalthat the Court might decide in a future case that the practice is not correct. However,the Court might not do so when the time comes and it hears full argument on the issue.Perhaps in support of my view on the issue of the "offence" that must be foreseen isthat, on the knowledge of a weapon issue (the issue before the Court), Edmondsemphasises the importance of following what s 66(2) actually says.93Conclusion[180] I conclude that the words of the provisions and principle support my view that,for a party under s 66(2) to be liable for murder or manslaughter under s 167, he orshe must appreciate the risk that someone will be killed. I consider this is supportedby the cases of this Court that have directly addressed it. The s 168 cases havedistinguished rather than overruled these cases and Edmonds did not decide the issue.I do not think it is for this Court to extend to s 167 the purposive interpretation thatwas favoured in Tuhoro and Rapira for s 168. I therefore consider that the juryquestion trail was in error because, under s 66(2), it directed that the jury could convictMr Burke of manslaughter without requiring that he foresee the risk of the victim beingkilled by the actions of Mr Webber.91 Edmonds v R, above n 19, per Elias CJ, Blanchard, Tipping, McGrath and William Young JJ.92 At [10] and [27], citing: R v Rapira, above n 22, at [25]; R v Curtis [1988] 1 NZLR 734 (CA) at740–741 (a case concerning a charge that failed under s 66(2) and which could have been broughtunder s 66(1)); and the practice in other jurisdictions and the common law.93 Edmonds v R, above n 19, at [47].[181] I note that the jury question trail put the path to s 66(2) liability formanslaughter on two bases. The first required that Mr Burke know that Mr Webberwas in possession of a knife at the time of the assault.94 This was in line withthe Judge's directions on the alternative basis for liability under s 66(1) where,following R v Hartley, the Judge directed the jury to consider whether Mr Burke knewthat Mr Webber would stab the victim and intended to assist with it.95[182] The route to liability if Mr Burke knew that Mr Webber was in possession of aknife would likely have led to a manslaughter verdict under s 66(2) on the basis ofTomkins. That is because, as in Tomkins, if Mr Burke knew that a lethal weapon wascarried in the prosecution of the common purpose to "inflict a physical beating orhiding", he must have known that there was an ever-present real risk of a killing insome way.96 The jury was unlikely to have had any difficulty with this if directed toconsider whether Mr Burke had this knowledge.[183] However, if the jury were not sure of whether Mr Burke knew Mr Webber wasin possession of a knife, they were directed that they could still convict Mr Burke ofmanslaughter if he "knew that Mr Webber knew the assault would be dangerous, beinglikely to cause harm that was more than trivial", without a further direction aboutwhether Mr Burke foresaw the risk of a killing.[184] It is not known which route the jury took, and this was the subject ofsubmissions at sentencing. When sentencing Mr Burke, the Judge said:97[13] That is, the verdict does not record whether the jury found youguilty because you encouraged or assisted Mr Webber in the stabbing ofMr Heappey or, on the other hand, because you were involved in a plan topunish Mr Heappey by assaulting him. I will sentence you on the basis thatyou were guilty as a party under s 66(2), and that the plan involvedMr Heappey getting a physical beating or "hiding". But I do not ignore thefact that you knew Mr Webber to be both the gang's enforcer and a personprone to violence — as you described it to the probation officer he was "oftencrazy and out of control". You also knew that you were both operating in ameth-fuelled environment.94 The question that proceeded question 21 set out at [29] of the majority judgment was "[a]re yousure that Mr Burke knew that Mr Webber was in possession of a knife at the time of the assault onMr Heappey? If yes, go to question 21. If no, go to question 22."95 R v Hartley [2007] NZCA 31, [2007] 3 NZLR 299.96 R v Tomkins, above n 24, at 256.97 R v Burke, above n 46.[14] [Defence counsel] also addressed me on the matter of what you knowor did not know about Mr Webber's possession of a knife that day. As anotional 13th juror, I am not satisfied that you knew for sure that Mr Webberhad a knife on him at the time the two of you escorted him outside for hispunishment, but I proceed on the basis that you knew his possession of a knifewas a distinct possibility.[185] Although I take a different view from the majority on the necessary legaldirections, a manslaughter verdict was inevitable on these facts if the jury had beendirected that they needed to be sure that Mr Burke knew it could well happen thatMr Heappey would die. Mr Burke was prepared to join the common plan and helpwith it, knowing the risk that Mr Webber, a gang enforcer operating in a meth-fuelledenvironment, would take a knife to the hiding Mr Heappey was to be given fordisrespecting the gang president. In those circumstances, he must have known of therisk that Mr Webber would kill the victim. I agree with the Crown's submission thatthere was no injustice in a conviction of manslaughter on these facts.Solicitors:Crown Law Office, Wellington for Respondent