Court of Appeal
Criminal Appeal No. 7 of 1984

SIR JAMES SMITH P.
SIR ALBERT STAINE J.A.
KENNETH ST. L. HENRY J.A.

Criminal Appeal against conviction of manslaughter- joint enterprise or common purpose - Court of Appeal finding that there was a common purpose to use a lethal weapon during an assault which resulted in the death of Fuller, the deceased.

J U D G M E N T

The appellant Mark August and Linsford Bailey were retried jointly in the Supreme Court. Both were convicted of the manslaughter of Walford Fuller and sentenced to imprisonment with hard labour. August has appealed against his conviction. Bailey has not.

The evidence led by the prosecution was to the effect that on the morning of 24th May, about 2:15 a.m., there was an altercation between Fuller and Bailey during which Fuller assaulted Bailey and threatened him with a shotgun. This altercation attracted bystanders outside The Place Disco where a dance was being held. P.C. Goldson who was assisting the doorman at the Disco went outside and saw Fuller with a shotgun pointed upwards. P.C. Goldson went to him and asked him for the gun. When Fuller refused, P.C. Goldson held on to the gun and a struggle started between them, during which Fuller fell down to the ground, and P.C. Goldson fell on him. Oshon said Fuller fell on his back and P.C. Goldson, on his knees. At that stage Oshon, an ex-police officer, came and pulled away the gun which was pointing upwards and took it into the Disco. Then Bailey and August with two others came and attacked Fuller who was still on the ground. They started kicking and punching Fuller. P.C. Goldson tried to stop them but failed. The punching and kicking continued for two or three minutes. Fuller attempted to get up once but was knocked back down. When the attack ended, P.C. Goldson saw Bailey with a rusty butchers knife, 8 to 12 ins. long, in his hand. P.C. Goldson tried to retrieve the knife from him without success, and during that time saw Fuller get up and walk from "side to side" towards his car which was parked nearby. P.C. Goldson went over to the car and found Fuller bleeding from the upper part of his body. He was promptly taken to hospital but died of haemorrage within five minutes of arriving there, from a stab wound in the chest which had penetrated the heart. There was also a stab wound in Fuller's neck, which Dr. Onnattu described as a deep cut wound the opening being at the back on the right side of the neck.

The Appellant August, in an addendum to his statement to the police said that it was Bailey who stabbed Fuller "with a butcher knife … about 12 to 13 inches in length with a wooden handle", adding, "I know the knife. I had seen Bailey with it stuck behind his right side in his trousers".

At the retrial the prosecution called an additional witness, Doreth Fuller, the deceased Walford Fuller's sister, who had not given evidence in the original trial.

Doreth Fuller described the altercation between Bailey and her brother Walford; and the tussle between the police officer and her brother over the shotgun which, she said, ended with both of them falling down and another police officer taking the shotgun away from them. Continuing her evidence she said:-

"P.C. Goldson and my brother were still on the ground. I saw Hands, Thin Man, Sherm and Bass punched and kicked him, to the head, Then I saw Thin Man take a knife out of his right pocket and stick Fuller in the right side of his neck. Fuller tried to get up and fall down and Hands stabbed him in his chest with a knife. Then Bailey made swashes over Goldson with the knife. Then he came to me rushing with this knife and I ran away through an alley".

She identified "Hands" as Bailey and "Thin Man" as the Appellant August.

At the retrial the Appellant made a statement from the dock in which he denied doing anything to Fuller, who he said, was his friend. He also denied that in his statement to the police he told Police Sergeant Watters that he saw Bailey with a knife.

In this Appeal the Appellant has complained that the learned trial judge erred in law -

1. in that he did not direct the jury on the law governing joint enterprise, where one or more of the parties go outside the joint enterprise and inflict the injury which formed the subject of the charge

and

2. in that he failed to direct the jury that the Appellant/Defendant was entitled to be acquitted if they found as a fact, that the injury which caused the death of Walford Fuller, was inflicted by a person who had gone outside the scope of the common design.

Mr. W. Elrington for the Appellant argued both these grounds together. He drew our attention to the law on joint enterprise and common design as set out in the
judgment delivered by Henry J.A. in the appeal to this Court following the first trial (Criminal Appeal No. 22 of 1983) when this Court allowed the appeal and ordered a retrial.

Mr. Elrington first referred to the evidence of Doreth Fuller to show discrepancies in her evidence and the omission to mention in her first witness statement to the police that she saw the appellant stab Fuller in the neck, but later included this piece of evidence in another statement.

In her first statement she said it was Bailey who stabbed Fuller in the neck as well as in the chest. In another witness statement some months later she said it was the appellant who stabbed Fuller in the neck. It was put to her in cross-examination that his had been done at the suggestion of Police Sergeant Watters. This she denied as did Police Sergeant Watters in his evidence.

The learned trial judge in his summing up correctly explained to the jury the burden of proof that rested on the prosecution. He was at pains to point out the discrepancies and inconsistencies in Doreth Fuller's evidence; and explained how such evidence was to be treated and what weight might be attached to it. He advised the jury: "If you can't accept the explanation, then the evidence ought not to be but it is entirely up to you."

Based on the Appellant's denial that he had a knife and the proposition that he did not know a knife was going to be used, Mr. Elrington submitted that it was not in the contemplation of the Appellant that a knife was to be used in the concerted attack of the four men on Fuller and consequently the use of a knife could not be attributed to him as it went beyond the common intention of the joint enterprise to cause harm by kicking and punching Fuller and in those circumstances the Appellant could not be convicted of manslaughter.

That is a situation which could have arisen if the jury rejected the evidence of Doreth Fuller as that of unreliable witness. It was Mr. Elrington's contention that the trial judge failed to put this situation to the jury.

The learned Director of Public Prosecutions submitted that the trial judge directed the jury accurately on the issue of joint enterprise and that in the circumstances of the present case the direction by the learned judge sufficed when he told the jury:-

"The prosecution is saying if you accept evidence of the prosecution witnesses you can come to the conclusion that August participated in the act which caused Fuller's death. Now first I want to direct you. Where two persons embark on a joint enterprise each of them is equally liable for such acts of the other as are done in pursuance of the joint enterprise or purpose. So you consider the evidence in August's case and decide if you are satisfied that August joined together with Bailey in a common purpose to inflict harm on Fuller. And if you find that they shared such common purpose, decide whether the use of a knife was within the scope of their common purpose to inflict harm on Fuller. Then if you are satisfied they shared such a common purpose and the use of a knife was within the ambit of that purpose, what Bailey did in furtherance of the joint purpose is to be regarded as the act of August. If, therefore, you are satisfied that Bailey stab Fuller in furtherance of a common purpose between himself and August, then the stab by Bailey is to be regarded as also the act of August. If you are satisfied that Bailey's act is to be regarded as also August's act, then as regards August, prosecution will also have established that the injury causing death was inflicted by August. For this the prosecution is relying on the evidence that (1) August joined with Bailey and others to attack Fuller (2) August along with Bailey and others kicked and punched Fuller (3) August knew Bailey had a knife about 12" to 13" long (4) August himself had a knife and used it during the attack by stabbing Fuller in the neck. Prosecution says if you accept you have evidence from which you can conclude that stabbing Fuller with a knife was within the scope of the concerted attack by Bailey and August. Therefore, what you decide on this will depend heavily on what you decide about Doreth Fuller's evidence, about August stabbing Fuller in the neck and also what you decide about the statement put in evidence by Sgt. Watters, that August said he knew Bailey had a knife. So remember what I said earlier about assessing Doreth's evidence. If you accept her evidence, then you have clear evidence on which to consider whether the stabbing was within August's contemplation of a joint attack upon Fuller. If you don't accept Doreth's evidence that August had a knife and stabbed, then you put that portion of evidence aside and see if on the remaining you can come to any conclusion on this point.

Now if you conclude that August participated in the act which caused Fuller's death, then again the prosecution says it was without justification and again I must direct you in August's case that there is no evidence adduced from any source on which I can direct you to consider the issue of justification. Again, in August's case you need not bother about that. Therefore, if the prosecution satisfies you so that you feel sure that August participated in the act which caused Fuller's death, then the prosecution would also have established manslaughter against August."

It appears to us that the trial judge's direction to the jury was adequate in the circumstances of this case. By their verdict the jury clearly accepted the evidence of Doreth Fuller which showed that the joint enterprise of Bailey and the Appellant with a common intention to use a lethal weapon, each being armed with a knife; and the Appellant by his admission in his statement to the police being aware that Bailey had a knife. Thus they contemplated going beyond a common intention of merely causing farm to Fuller by kicking and punching him. While it was Bailey that inflicted the fatal wound, the use of a knife in the attack was also within the contemplation of the Appellant. He used his knife to stab Fuller in the
neck. Thus both Bailey and the Appellant were responsible for Fuller's death and guilty of manslaughter.

It may be observed that the learned trial judge, by sentencing Bailey to 5 years imprisonment with hard labour and the Appellant, August to 3 years, indicated that the greater blame rested on Bailey.

For these reasons we dismiss the Appeal of Mark August.

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