Mr. Hubert Elrington for the Appellant
Mr. G. C. Ghandi for the Respondent

Criminal Law - Homicide - Joint enterprise - co-accused acting out side the scope of the joint enterpise - Directions to the jury on the possible verdict.

J U D G M E N T

The Appellant was one of four person charged with the murder of Walford Fuller on May 24, 1983. He was acquitted of murder, convicted of manslaughter and sentenced to 8 year imprisonment with hard labour. Of the other three persons one, Linsford Bailey, was ordered to be retried after the jury failed to agreed on a verdict, one was convicted of unlawful harm and one was acquitted.

The fact on which the prosecution relied have been set out with admirable clarity in the judgment of the learned president and I will not repeat them. It is apparent from those facts that the prosecution was alleging a joint enterprise between the four accused as a consequence of which the deceased met his death. It is therefore important to ascertain what is the principle to be applied when a joint enterprise is alleged and to determine whether in his direction to the jury the learned trial judge correctly set out that principle.

The principle is in fact expressed in the judgment of Lord Parker C.J. in R. v. Anderson; R. v. Morris (1966) 1 Q.B. at p.118 as follows:

"....where two person embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise, that that includes liability for unusual consequences if they arise from the execution of the agreed joint enterprise but (and this the crux of the matter) that, if one of the adventurers goes beyond what has been tacitly agreed as part of the common enterprise, his co-adventurer is not liable for the consequences of that unauthorized act."

The learned Chief Justice went on to refer to the cases of R. v. Smith (Wesley) (1963) 1 W.L.R. 1200, and R. v. Betty (1964) 48 Cr. App. Rep. 6 as supportive of this principle. An examination of these cases makes it clear that in applying the principle it is essential to determine the nature and extent of the joint enterprise and, where the use of violence is part of that joint enterprise, the extent of violence which is or may reasonably be regarded as being within the contemplation of the parties to it. When death results, it is of particular importance to determine whether the act which resulted in death was one which was within the scope of the enterprise. If it was, it becomes the responsibility (albeit in varying degrees) of all the parties to the joint enterprise. If it was the act of one adventurer who went beyond what had been tacitly agreed as part of the joint enterprise then that adventurer alone would be liable. In the instant case it was therefore vital for the jury to consider not merely whether death resulted from the attack on the deceased but whether the particular act and the use of a weapon were within the contemplation of the parties to that attack and consequently within the scope of their joint enterprise. This was not a case where, as in R. v. Reid (1976) 62 Cr. App. Rep. 109 all the co-adventurers were, on the evidence, armed and it could therefore be considered that "when two or more men go out together in joint possession of offensive weapons such as revolvers and knives and the circumstances are such as to justify an inference that the very least they intend to do with them is to cause fear in another, there is, in our judgment, always a likelihood that, in the excitement and tensions of the occasion, one of them will use his weapon in some way which will cause death or serious injury. If such injury was not intended by the others, they must be acquitted of murder, but having started out on an enterprise which envisage some degree of violence, albeit nothing more than causing fright they will be guilty of manslaughter."

Here there was no evidence from the prosecution witnesses that any of the four attackers were armed and indeed the police officer who was on the ground with the deceased attempting to take away the shotgun from him before the attack by the four men only saw a knife in the hand of one of those men after the attack and the fatal injury to the deceased. The only indication that the Appellant may have known that one of his co-adventurers had a knife was the written statement allegedly given by him to the police in which the following appears: "Further to the above statement I made I would like to add that it was Linsford Bailey who stab Walford Fuller on the 24.5.83 with a butcher knife the knife is about 12 to 13 inches in length with wooden handle. I know the knife I had seen Bailey with it stuck behind his right side inside his trousers." This is not part of the original statement but appears as a sort of addendum to it. The jury would have to consider whether it was made by the appellant and, if so, whether it was true or merely an attempt by him as an after thought to put the blame on someone else, particularly since in his unsworn statement at the trial he said, "I did not see anybody with no knife and I had no knife." If the joint enterprise to which the Appellant may have been a party did not extend to the use of a knife or a weapon because he had no knowledge that any of his co-adventurers had a knife or weapon, he would be entitled to an acquittal. The jury ought to have been clearly directed to distinguish that situation from one in which death had unexpectedly resulted from the use of violence of the nature and degree contemplated by the parties to the joint enterprise. As was observed R. v. Anderson; Morris (supra) at p. 120:

"It seems to this court that to say that adventurers are guilty of manslaughter when one of them has departed completely from the concerted action of the common design and has suddenly formed an intent to kill and has used a weapon and acted in a way which no party to that common design could suspect is something which would revolt the conscience of people today."

It does not seem to me that the jury were clearly directed in this regard. If the death of the deceased had unexpectedly occurred as a consequence of the blows inflicted by the persons who kicked and punched him then the directions of the learned trial judge in the earlier part of his summing up would no doubt have been appropriate. He failed however to direct the jury's attention to the crucial issue of whether the act which resulted in death was outside the scope of any joint enterprise to which the Appellant may have been a party. In the earlier portions of his summing up the learned judge made no mention of the Appellant's knowledge of the existence of a knife as an issue for the jury to consider. He said, "if you find that one or more of them did not intend to kill but that they nevertheless participated in the attack on the basis of a common intention or with a common purpose to cause harm to Walford Fuller then those persons who did not intend death, would, since death resulted from the attack, if you are satisfied and feel sure that death resulted from this attack on Walford Fuller while he was on the ground, if you are satisfied of that, then those persons who attacked him even intending to cause only unlawful harm, not death, would be guilty of the offence of manslaughter if they knew death could result from that causing of unlawful harm by them in furtherance of a common intention to cause harm. So that if - what that means is that if all of them participated in the attack, all or maybe two or more of them with a common intention, that is, an intention common to them to cause harm only to Walford Fuller and you are satisfied so that you feel sure that death followed from that attack then those persons who participated even with the intention of only causing harm are guilty of manslaughter if they knew death could result from their joint attack on Walford Puller."

Later he said, "if you find that the common intention was something less such as to cause unlawful harm then as I have told you already since death resulted from the attack, that is, if you are satisfied it resulted from the attack, the offence that they would be guilty of would be manslaughter", and, "But if you are satisfied they formed a common intention and attacked the deceased, any of them, then each of them is liable for all the acts of the others but if the intention of those who participated other than the person who stabbed was only to cause unlawful harm they would at most be liable for the death only to the extent of being liable - guilty of manslaughter, if they did not themselves have the intention to kill then they are not liable for murder but they could nevertheless be liable for death having resulted from the attack to the extent that they will be liable for manslaughter."

It is only towards the end summing up that he mentioned the Appellant's knowledge of the knife when he said. "Did he take part in the incident with the intention of causing unlawful harm to Bailey or with the intention of - to Fuller, or with the intention killing Fuller? If he took part in it with the intention of causing unlawful harm to Fuller and you are satisfied so that you feel sure that he knew a knife could be used and death resulted from this attack on Fuller then if you are satisfied so that you feel sure that he, August, participated with a common intention with whoever caused the death of Fuller, August would be guilty of the offence of manslaughter." But even here the jury may well have felt that the issue they had to consider was whether the Appellant had an intention to kill or merely to cause harm.

Eventually the learned trial judge dealt with the possible verdicts open to them in relation to the Appellant as follows: "Now in relation to the accused August if you are satisfied so that you feel sure that August participated in an attack on Fuller while he was on the ground in furtherance of a common intention you will again examine whether that intention was to cause death or to cause unlawful harm. If the intention was to cause death he would be equally guilty of murder even if he himself did not inflict the fatal wound. If the intention was only to cause harm to Fuller and you are satisfied and feel sure that August knew a knife could be used, that Fuller died in the course of that attack then Bailey will be guilty - I mean, sorry, August would be guilty of the offence of manslaughter. If however, you have a reasonable doubt as to whether he had any - a common intention with the other accused, that is, if you are - if you have a reasonable doubt as to whether he was acting along with them on a common purpose or that he was acting on his own then you will give him the benefit of that doubt and conclude that he was acting on his own. In that event he will only be responsible for the acts that he himself did which is to kick and punch and therefore will be liable only for unlawful harm. If you have any reasonable doubt that he participated in the attack at all you will give him the benefit of the doubt and acquit him of all charges." At no stage did he make it clear to the jury that if the act which resulted in death was outside the scope of the joint enterprise the Appellant was entitled to be acquitted. In my view at best the jury must have been confused and the Appellant was deprived of the opportunity of an acquittal.

For these reasons I conclude that the Appeal ought to be allowed and a new trial ordered for manslaughter. The Appellant has been acquitted of murder and that acquittal not being the subject of the appeal cannot be interferred with by this court.

Before parting with this appeal I would endorse the observations of the learned president that this court was in error in Criminal Appeal 5/83 Miguel De Paz v R. as regards the possible verdicts open on a charge of murder, because Section 131 of the Indictable Procedure Ordinance had not been brought to its attention.

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