Former Port of Auckland CEO Tony Gibson goes on trial, recession hits the job market and a candlelit vigil has been held for the Sydney stabbing. Video / NZ Herald / Getty / AP
A Nomads associate involved in the fatal stabbing of a man who was “disrespectful” to the gang’s president will have his manslaughter conviction quashed after winning his case before the Supreme Court.
Today, the senior court released its decision to allow the appeal of Justin Richard Burke,who was jailed in February 2021 for five years and two months imprisonment for his role in the killing of Shayne George Heappey.
Burke, who was found guilty of manslaughter following a two-week trial at Christchurch High Court in November 2020, has maintained he intended to give Heappey a “mean hiding” and he did not know his co-offender, Matthew Winara Webber, had a knife.
Heappey, 25, known as “Smiley”, died after he was stabbed and cut at least 14 times by Webber on December 8, 2018.
At Burke’s trial, the directions given by the judge meant a conviction, under the parties to offences section of the Crimes Act, was possible if Burke did not know Webber had a knife and if all he foresaw was an assault likely to cause non-trivial harm. Burke was later sentenced on that same basis.
He took his case to the Court of Appeal, claiming the judge misdirected the jury in relation to his liability for manslaughter, but that appeal was dismissed.
Burke, 35, then turned to the Supreme Court, which granted him leave to appeal against his conviction.
The appeal, which was heard in March last year, was advanced on the grounds that Burke would need to have foreseen either a stabbing or similarly grave assault; or an unlawful killing.
While the Supreme Court’s Chief Justice Helen Winkelmann, Justice Susan Glazebrook, Justice Mark O’Regan, Justice Joe Williams and Justice Stephen Kós were unanimous the appeal should be allowed, it was for different reasons.
The majority - Justices O’Regan, Williams and Kós - found the jury should have been directed that to return a guilty verdict they had to be satisfied Burke foresaw a stabbing would occur.
To do that, they should have been directed that they needed to be satisfied Burke knew Webber had a weapon.
The majority also found that the trial judge’s directions were flawed in other respects.
The minority - Chief Justice Winklemann and Justice Glazebrook - concluded Burke needed to have foreseen that an unlawful killing would occur.
The Supreme Court has sought submissions from counsel on the consequential orders that should follow, asking for comment on whether it should be substituted for a conviction of injuring with intent to injure.
Shayne Heappey died in hospital from his injuries. Photo / NZ Herald
“We therefore allow the appeal and indicate that we will, when making formal orders, set aside the conviction for manslaughter,” the decision stated.
“We understand that Mr Burke may have completed his sentence, and in those circumstances there may be little point in ordering a retrial.”
At the Supreme Court hearing, Burke’s defence team, comprising King’s Counsels James Rapley and Stephanie Grieve, and barrister Sam Bird, argued he did not know the “hiding” would result in Heappy’s death.
Rapley rejected the Crown’s suggestion it was the “planned fight that killed the victim” saying it was in fact Webber’s unexpected use of a knife.
He said the jury was asked if they thought Burke knew the assault would be dangerous, but the question of whether Burke foresaw a real risk that Webber would stab Heappey wasn’t posed.
Rapley went on to say that Heappey was bringing in money for the gang through drug dealing and Nomads president Randall Clinton Waho was “furious” after discovering he had been killed, indicating the death wasn’t planned.
Madeleine Laracy for the Crown said that a secondary party will be liable for an offence committed by another person only if they could see that it is probable that the offence would be committed.
She said for a charge of manslaughter, there needs to be an unlawful act such as assault, which is what Burke participated in before Heappey’s death.
At Burke’s sentencing, the court heard how Heappey ignored repeated requests to settle a $300 debt and turn over a stolen Subaru car to Leone Sherie Cook – the stepdaughter of Waho.
Waho, 47, set up several meetings with Heappey, the court heard, but he never showed up.
That was a slight against the gang and its president, the Crown said.
The Crown said Burke had only been in town for a month but had started a relationship with Cook and was aspiring to join the Nomads and become a patched member.
Webb admitted stabbing Heappey and was jailed for life with a minimum term of 15 years.
Tara Shaskey joined NZME in 2022 as a news director and Open Justice reporter. She has been a reporter since 2014 and previously worked at Stuff where she covered crime and justice, arts and entertainment, and Māori issues.
