Court of Appeal
Criminal Appeal No. 22 of 1983
11 May, 1984
SIR JOHN SUMMERFIELD, P.

Appeal - Criminal law - Murder - Common Intention - Joint Venture - Question of fact - Evidence - Misdirection of jury - Whether on a charge of murder a verdict of guilty of unlawful harm can be returned - Summing up satisfactory - Appeal dismissed.

J U D G M E N T

The Appellant was charged with three others, including one by the name of Bailey, with the murder of Walford Fuller. The four person so charged will be referred to as the four accused.

The jury was unable to agree on a verdict in relation to Bailey. The Appellant was convicted of manslaughter and sentenced to 8 years imprisonment with hard labour. One of the others was convicted of unlawful harm and sentences to 9 months imprisonment with hard labour. This appears to contravene section 131, of the Indictable Procedure Ordinance. With remission this person will have served his sentence. The fourth was acquitted.

The prosecution case was that the Appellant and the three others were acting in convert in murdering Fuller, based on the following facts.

At about 2:15 a.m. in the morning of 24 May 1983 there was an altercation between Fuller and Bailey in the course of which Fuller assaulted Bailey and threatened him with a shotgun. No doubt Bailey and others were incensed by this attack. It led to general alarm among the bystanders which attracted the attention of a police officer assisting a doorman at The Place Disco. The police officer went into the street where he saw Fuller coming from the direction of the Bonfire Club with the shotgun in his hand. The police officer went up to Fuller and told him to hand over the gun. Fuller refused. The police officer took hold of the gun and a struggle started between them. During the struggle Fuller fell to the ground on his back and the police officer dropped to his left knee. On the ground they were tussling and twisting with the gun until an ex police officer came up, took hold of the gun and jerked it out of their hands. The ex police officer walked away with the gun and as he did so the four accused circled the police officer on the ground and Fuller who was still lying on his back on the ground. The four accused then started to stamp Fuller with their feet and punch him with their fists as he lay on the ground.

In less than two minutes the four accused moved off and as they did so the police officer saw Bailey with an 8 to 12 inch butcher's knife in his right hand. The police officer went up to Bailey who began to wave the knife in front of the police officer to prevent him from taking it. The police officer did not see any blood on the knife. The police officer then heard something and, leaving Bailey, went to where Fuller's car was parked. While he was trying to take the knife from Bailey he had seen Fuller get up off the street and wobble towards his car. When the police officer reached the car he saw Fuller sitting behind the steering wheel with his left foot on the ground. He was bleeding from the upper part of his body.

Fuller was hastily taken to the hospital where he died within five minutes after arrival from haemorrhage from a large stab wound in his chest which had penetrated the heart. The wound was consistent with having been made by a knife. Fuller also had a small stab wound on the back of his neck.

In an exculpatory statement to the police the Appellant said that it was Bailey who stabbed Fuller. He described the knife and said he had seen Bailey with it stuck behind his right side inside his trouser. He did not say exactly when he saw it.

There is no evidence that anyone saw any of the four accused use a knife during the less than 2 minutes attack on Fuller with feet and fists.

The learned trial judge gave extensive direction in common intention, joint venture and the responsibility of the participants for the acts of the others where there is a common design. In some respects his direction were repetitious. At al events they could have left no doubt on the minds of the jury of his directions in law in that regard. Some of the more important directions as they relate to the Appellant were:

"Now since the facts in this case raised that first, if you have any doubt, reasonable doubt, that one or more of these accused intended to kill - now it is quite possible that one intended to kill and the others did not- 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 person who did not intend death, would, since death resulted from the attack, if you are satisfied and feel sure that death resulted form this attack on Walford Fuller while he was on the ground, if you are satisfied of that, then those person who attacked him even intending to cause only unlawful harm, not death, would be guilty of the offence of manslaughter of they knew death could result from that causing of unlawful harm by them in furtherance of a common intention to cause harm. So that of- 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 attack them those person 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 Fuller."

At a later stage he said:

"……… the prosecution's case is that these accused attached Walford Fuller with a common intention of causing the death of Walford Fuller, that is, the prosecution is saying that they all intended to kill Walford Fuller. Now it is for you to decide:

(1) whether there was a common intention.

If you decide that there was a common intention it is then for you to decide what that common intention was. If you find it was a common intention to kill then of course it would be murder but if you find that the common intention was something less such as to cause unlawful harm them as I have told you already since death resulted from the attack, the offence that would be guilty of wound be manslaughter. Now what is meant by common intention? Common intention is a common purpose or a common design common to those person who participated in the attack." again, a little later he elaborated thus:

"What you have to do is examine what each accused has done, what your are satisfied each accused has done, and decide whether that indicates to you with certainty that each of them intended to cause harm to Walford Fuller. If that was so then all four has a common intention. If each of them had that intention to cause harm to Walford Fuller then the purpose with which the four of them, or two, three of them or two of them launched the attack would be common purpose. There is no requirement of agreement. What is required is that the purpose of the intention should be common- to them- the people who participated. So for example, all the evidence shows that an incident did occur between Fuller and Bailey. Now if you are satisfied so that you feel sure that the second, third or fourth accused participated in the attack on Walford Fuller then you must give your mind to the question of whether each had an intention, whether each intended on his own or whether the three of them were- whether the intention that the three of them had was to attack the person who had slapped their friend. If their intentions was to hit or strike at- when I say strike at I don't mean physically - I mean to get at, to kick or punch the man who had earlier slapped their friend Bailey, if each of them had that intention, then there would be a common intention between them to do that. So it is not necessary that they should have consulted with each other. Each forms an opinion, an intention and acts on it. If you are satisfied that the intention formed by them was a common to them, namely to attack Fuller, then you have a common intention. If you are satisfied that two or more of these accused had a common intention to attack Fuller then you will go on the next question and try to decide what that common intention was.

Was the common intention one to kill Fuller or was the common intention only to cause harm to Fuller? That is a question of fact that you have to decide by looking at the evidence."

There were further directions in a similar vein which were to some extent repetitious.

The learned trial judge clearly left to the jury the question of the scope of the common intention as well as the intent of each of the four accused at the relevant time and the extent of the participation of each.

He did not in so many words say that a participant could not be convicted of an offence beyond the scope of the common design but that was implicit in his positive directions explaining and limiting what they could be convicted of in the various permutations of intent and participation in furtherance of a joint venture or common design.

Of course, if two assailants act in concert in an attack on a victim one intending to kill or cause dangerous harm to the victim by stabbing him and the other intending only unlawful harm there is still a common intention between the two at the level of causing unlawful harm to the victim because common to both intents is the intent to cause unlawful harm, the more serious intent subsuming the lesser.

The learned judge did not approach his directions on the basis of what the consequences of a missing element would be in the several permutations of facts that the jury might find. In effect what he did was to deal with the possibilities in descending order of seriousness. He explained what the consequence was if a certain set of facts alleged by the prosecution were proved. Starting with murder he explained what facts put forward, if accepted, would justify a conviction of murder in relation to one or more accused. He then went on to explain that if the findings of fact fell short of those necessary to support a charge of murder in relation to any accused or if the jury had any reasonable doubt on any relevant fact then the case fell short of murder and that the jury could consider the offence of manslaughter, setting out the facts which would justify a conviction of that offence in relation to any accused person. Again he made clear that if they had any reasonable doubt as to any relevant fact which would support the offence of manslaughter the case fell short of that offence and the jury could then consider the offence of unlawful harm setting out the facts which would support that offence. In this respect the learned Judge was wrong because a verdict of guilty of unlawful harm cannot be returned on a charge of murder. Section 131 of the Indictable Procedure Ordinance makes this clear. The general provision, section 141, cannot override the specific provisions of section 131. To be fair it is only right to point out that this court was in error in relation to the same point in Criminal Appeal No. 5 of 1983 - Miguel Depaz v. The Queen - because section 131 had not been brought to notice.

However, this misdirection is of no consequence in relation to the Appellant as he was not convicted of unlawful harm. Had he been so convicted then this court would be obliged to quash the conviction and set aside the sentence since in the circumstance of this case, the only verdicts open to the jury on the charge of murder were guilty as charged, not guilty as charged but guilty of manslaughter or not guilty. The misdirection is relevant to the conviction of the co-accused, Louis Gladden, and this court would certainly entertain an application to appeal out of time from him.

In my view it is not for a trial judge to regale a jury with an exhaustive thesis on any branch of the law he is directing them on. His duty is to explain the law as it applies to the facts of the case in a manner which will make his explanations meaningful to them. Usually there is no set formula for a direction; each judge has his own distinctive style and approach. The function of this Court is to determine whether there is any danger of there having been misinformed or misled by any direction. One should not pick at a summing up and criticize odd passages on the grounds that they do not conform to some direction with which one is more familiar or as it appears is some authority. What matters is the overall effect of the summing up and the impression it would leave on the minds of the jury on the essentials on which they should be directed. On should also have faith and confidence in out institutions, such as the jury, and credit them with intelligence and common sense in following the purport of summing up.

In my view the learned Judge explained the law as it applied to this case in manner which would have been meaningful to an intelligent jury. There are, of course, other approaches to the same directions, but in the event, one has to decide if the jury could have been in any doubt as to what they had to find as facts to justify the main verdicts of guilty open to them. The summing up was punctuated with numerous reminders of the burden of proof in relation to such verdicts, with appropriate exhortation to give the accused the benefit of any reasonable doubt the jury might entertain in relation to such verdict which would then fall away by reason of that doubt.

The learned Judge reviewed the evidence exhaustively and when he came to the case against the appellant he put it thus:

"Now the evidence against the second accused is very briefly what both Goldson and Brackett say that the second accused was one of those who kicked and stamped, kicked, stamped, punched Fuller while he was on the ground and after the gun been taken away by Oshon. If you are satisfied so that you feel sure that August did take part in kicking and punching Fuller, you will also bear in mind the contents of August's statement, these statements will be made available to you to look at. Two things are relevant in relation to August in that statement. One is that he knew Bailey had a knife. That does not mean that Bailey had a knife. He knew someone of them had a knife. It may not have been Bailey. It may even have been himself but he knew someone of the assailants had a knife and he knew that Fuller was stabbed in the incident. Now in his statement to the police and in Court, August said that he "took no part in this hassle". That is his position. It is for you to consider that against the prosecution's evidence and decide whether you are satisfied so that you feel certain that he did take part in the incident them you must also decide with what intention he took part in the incident. 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 of killing Fuller? If he took part in it wit 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 also 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."

And later:

"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 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 even 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."

In my view that is unexceptional and leaves all questions of fact firmly in the hands of the jury.

The law is summed up succinctly in Archbold 40th Edition (the latest available) at paragraph 2535 in these words:

"Where two adventurers embark on a joint enterprise, each is liable for acts done in pursuance of it, and also for the unusual consequences of such acts, provided that they arise from the execution of the joint enterprise; but if one of the adventurers goes beyond what has been tacitly agreed as the scope of the enterprise, his co-adventurer is not liable for the consequences of that extraneous act. Where, therefore, two person tale part in a concerted attack, and one departs completely from the scope of the common design, and having formed a sudden intent to kill or cause grievous bodily harm, uses a weapon in a manner in which the other party had no reason to suppose he would act, and so causes death, or other party is not necessarily liable to be convicted, and may be entitled to an acquittal, of manslaughter: R. v Anderson; R. v Morris 91966) 2 Q.B. 110: 50 Cr. App. R. 216. The headnote in R. v Betty (see s 2539, post), should be regarded as possibly too wide: ibid.

In R. v Reid (1976) 62 Cr. App. R. 109, C.A. the court in a reserved judgment applied the distinction drawn in R. v. Anderson and Morris, ante, between a "mere unforeseen consequence of an unlawful act" (for which the accused would be liable) and "an overwhelmingly supervening event which is of such character that it will relegate into history matters that would otherwise be looked on as causative factors". Dismissing the appeal, the court in R. v . Reid said: "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 they very least they intend to do with them is to cause fear in another, there is, in our judgment, always a likelihood that 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 in an enterprise which envisaged some degree of violence, albeit nothing more than causing fright, they will be guilty of manslaughter. See R. v Larkin (1943) 29 Cr. App. R. 18".

And at paragraph 2539 (although it is suggested that in Betty's case the headnote is possible too wide) the principle is explained thus:

"Where two person were jointly charged with manslaughter arising out of a fight, and the evidence showed that a concerted attack by them started without any intention of killing or causing grievous bodily harm in the mind of either of them, but that, as the fight developed, one of them conceived in his mind an intention to kill or cause grievous bodily harm or did some act outside the concerted scope, and that the death of the victim was caused thereby, the fact that that person was in law guilty of murder did not absolve the person who did not go outside the scope of the concerted attack from liability to be convicted of manslaughter: R. v Betty (1963) 48 Cr. App. R. 6."

After the jury retired they returned with a request for further directions in relation to Bailey. In the course of giving those directions the learned Judge again dealt briefly with each accused. In relation to the Appellant he said:

"In relation to august if you are satisfied and feel sure that August participated in the attack with common intention with one more of the other accused to cause unlawful harm and you are satisfied and feel sure that August knew that one or more of the others had a knife then he would be guilty of manslaughter. If he did not participate in the act he would of course not be guilty of any offence. If he participated in the attack but not on a common intention with the others and all he did was to kick and punch the fallen Fuller then he would only be guilty of causing unlawful harm."

That was not a full as the earlier directions. It is unfortunate that he failed to remind them that they should be satisfied that he knew that he failed to remind them that they should be satisfied that he knew that the knife could be used but he had made that point time and again in his summing up and the jury must have had it entrenched in their minds. In any event, at that stage, they were only concerned about directions in relation to Bailey. Although he said "If he did not participate in the act he would of course not be guilty of the offence," that was not intended to indicate that that was the only way be could be relieved of liability. This is apparent from the subsequent sentence and his frequent reminders that if there was a reasonable doubt as to any of the facts which would support a verdict of guilty of an offence that offence had not been established.

Taken as a whole I cannot see that the jury would be misled or confused in relation to the Appellant or that there could be any miscarriage of justice.

That dispose of grounds 1(b) and (c).

As to ground 1(a) it is true that an no point in his summing up did the learned Judge put a definition of manslaughter before the jury. However, he did explain what facts had to be proved to establish the offence of manslaughter in the context of this case. In his lengthy summing up it emerged clearly that the difference between murder and manslaughter was the ingredient of an intention to kill in the former. The jury must have known from his summing up what had to be proved to establish the offence of manslaughter as appears, inter alia, from the passages quoted. There is no substance in this ground.

It is, perhaps, unfortunate that evidence emerged of what one accused said about another in statements to the police, including statements of this kind in relation to the Appellant. However, the learned Judge made very clear to the jury in a lengthy direction, and more than once, that such statement could only be evidence against the maker of the statement and not against any co-accused. The jury could have been in no doubt as to their approach to any such statement.

In my view there is no substance in any of the other grounds of appeal.

The learned Judge reviewed the evidence against the Appellant extensively and in unexceptional terms. He also place the essence of the Appellant's defence, in his unsworn statement, before the jury twice, reminding them that in that statement he disclaimed any knowledge of the possession of a knife by Bailey or anyone else, albeit that he did not remind them of this when dealing with the prosecution case.

There was certainly evidence before the jury on which the jury could properly reach the verdict it did. Although there is some room for criticism in relation to some of the approached to the directions I am satisfied that there could have been no miscarriage of justice and that taken as a whole, the summing up was satisfactory.

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