Supreme Court Overturns Manslaughter Conviction of Nomads Gang Member

Supreme Court in R v Burke comes to a unanimous decision that the trial Judge wrongly defined what “common purpose” parties to a homicide must have foreseen.
 
The Supreme Court’s decision in Burke was released on April 26 2024. The decision concerns section 66(2) of the Crimes Act, which is about party liability in the context of culpable homicide (manslaughter). The issue was what exactly a secondary party to manslaughter must foresee as a probable consequence in prosecuting the common unlawful purpose formed with the principal offender.
 
This case involved Mr Burke and Mr Webber, both associated with the Nomads gang. They were tasked with punishing the victim – Mr Heappey, who had been disrespectful to the president of the gang. Initially, this punishment was meant to consist of a quote, “mean hiding”, but Mr Webber repeatedly stabbed Mr Heappey at least 14 times, and he died as a result. Although Mr Webber admitted to carrying out the stabbing and was sentenced to a minimum term of 15 years imprisonment, Burke was found guilty of his role in the homicide and sentenced to five years and two months imprisonment.
 
The directions given by the trial Judge meant that a conviction under s 66(2) was possible if Mr Burke did not know that Mr Webber had a knife and if all Mr Burke foresaw was an assault that was likely to cause non-trivial harm. Accordingly, Mr Burke was sentenced on the basis that he has been found guilty as a s 66(2) party and that he did not know Mr Webber had a knife. Mr Burke initially took his case to the Court of Appeal, but they dismissed his appeal.
 
Mr Burke then turned to the Supreme Court and advanced his appeal against his conviction.  The Supreme Court was unanimous that the appeal should be allowed but for different reasons. The majority found that the jury needed to be directed that in order to find Burke guilty, they had to be satisfied that Burke foresaw that a stabbing would occur. To do that, they must be satisfied that Burke knew that Webber had the knife. The minority agreed that Burke would have foreseen that an unlawful killing would occur.
 
In Burkes’s police statement, he said, “I thought what was going to happen was a mean hiding”. Ultimately, the jury was not properly directed to the requisite threshold of knowledge that Burke needed to possess to determine him guilty as a party in the manslaughter.
 
The Supreme Court has set aside his conviction and is awaiting submissions on whether it should be substituted for another conviction of injuring with intent to injure.