HKSAR v. PUN GANGA CHANDRA AND OTHERS

CACC 309/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 309 OF 1999

(ON APPEAL FROM HCCC NO. 259 OF 1998)

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J U D G M E N T

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Keith JA (giving the first judgment at the invitation of Stuart-Moore V-P):

Introduction

1. On 6 April, we handed down our judgment on those grounds of appeal which related to the compatibility of (a) the judge's directions to the jury and (b) the mandatory sentence of life imprisonment for murder with the Basic Law and the Bill of Rights. We dismissed those grounds of appeal, but at least one member of the court had some reservations about the particular terms of the judge's directions to the jury. Those reservations were notified to the parties, and we have heard argument on them. This is my judgment in the light of the representations which have been made. I again trust that I shall be forgiven for the impersonal way I propose to refer to the Appellants, but for convenience I shall refer to them as A1, A2 and A3 respectively. Page references in this judgment are to pages in the transcript of the judge's summing-up.

The background facts

2. The course of the trial. The events which gave rise to the Appellants' trial took place in the early hours of 8 December 1997 when an argument broke out between a group of men outside a bar in Wan Chai. In the course of the argument, a young man was stabbed. He died as a result of his injuries. The Appellants were eventually charged with his murder. They were tried by Gall J and a jury in the Court of First Instance. They pleaded not guilty. However, after a trial lasting a number of weeks, they were convicted and sentenced to imprisonment for life.

3. The prosecution's case. It was accepted by the prosecution that not all of the Appellants had stabbed the deceased. Indeed, only one of them could have inflicted the fatal stab wound to the back of the deceased's neck. The prosecution's case was that A1 and A3 had knives, that both of them had stabbed the deceased, and that one or other of them had inflicted the fatal stab wound from which the deceased had died. One or other of them was therefore said to have been what I propose to call the primary offender. But if the jury was not sure which of them had inflicted the fatal wound, the prosecution's case was that A1 and A3, as well as A2, should be convicted of murder on the basis that they were all parties to the fatal stabbing of the deceased. Thus, those of the Appellants who the jury was not sure had inflicted the fatal wound were said to have been what I propose to call secondary offenders.

4. The evidence of the eye-witnesses. We have not been provided with transcripts of the evidence of any of the witnesses, and my summary of the evidence is taken from the judge's summing-up. Four witnesses gave relevant evidence about the fight itself, and their evidence was to the effect that at least three men were attacking a fourth man. Two of the witnesses did not see a knife at all, but two of them did. One of them said that he first saw a knife in the hand of one of the assailants when the fight was almost over. The other (Hung Sun Kit) gave evidence as to how the deceased sustained the fatal stab wound. The judge's note of Mr Hung's evidence reads:

"I saw one of them pull a knife from a sheath to chop the person. The sheath appeared to be a roll of newspaper .... I saw him raise the knife, jump up and stab at the back of the neck. I saw him pull out the knife and put it back into the sheath .... [He] tucked [the sheath] inside the waistband of his trousers. That concealed it."

Mr Hung said that only one of the assailants had long hair, and that was the man with the knife. At the trial, A1 admitted that he had had long hair at the time, and Mr Hung must therefore have identified A1 as the man with the knife at an identification parade, because otherwise the judge could not have told the jury (as he did at p. 35M) that Mr Hung was "quite sure" that A1 had had a knife which he had used to stab the deceased in the neck.

5. If the jury was not sure that A2 and A3 had known before the fight that A1 had a knife with him, the evidence of the eye-witnesses was highly relevant to when in the course of the fight, if at all, they had discovered that A1 had armed himself with it. Since (a) two of the witnesses had not seen a knife at all, (b) one of the witnesses had only seen a knife when the fight was almost over, and (c) Mr Hung had said that A1 had pulled a knife from a sheath and had concealed it in his waistband after he had used it, the jury might not have been able to be sure, from the evidence of the eye-witnesses alone, that A2 and A3 had known that A1 had had a knife until the deceased was actually being stabbed. And if the jury was not sure about Mr Hung's identification of A1 as the man with the knife, the same is true of A1's knowledge about the knife and its use.

6. The interview and evidence of A1. A1 had been interviewed by the police. He was alleged to have told them that he had known that A3 had a knife which "was brought along because we might need it", and that they had left the bar to teach the deceased a lesson because of a "bumping incident" on the dance floor with A2. They had then attacked the deceased, and in the course of the attack he had heard someone say words to the effect that the deceased had been stabbed.

7. The prosecution's primary case against A1, based on the evidence of Mr Hung, was that it was A1 who had inflicted the fatal wound to the deceased's neck from which the deceased had died. He was therefore guilty of murder as a primary offender. However, if the jury was not satisfied that A1 had indeed inflicted the fatal stab wound, the prosecution's alternative case against A1 was based on what he was alleged to have said in his interview. That was said to have amounted to an admission that there had been a prior agreement to use the knife which A3 had brought along in case the need to use it arose, and its use by A3 in the fight which subsequently took place could be attributed by the doctrine of joint enterprise to A1 as well.

8. When A1 gave evidence, he gave a different version of events. He described an unprovoked attack on him by the deceased outside the bar. The deceased then went into the bar, but came out shortly afterwards with one of the eye-witnesses, and attacked him and A3. He defended himself with his hands. He was not armed and did not see anyone with a weapon. When the fight ended, he fled from the scene with A2 and A3, and had not seen anyone injured or any sign of blood. As Mr Daniel Marash SC (who represented the Appellants at the further hearing of the appeal, but who did not represent any of them at the trial or the earlier hearing of the appeal) has conceded, the jury by its verdict obviously rejected A1's version of the incident, but it is not possible to tell whether the jury convicted A1 of murder on the basis that he had inflicted the fatal stab wound himself or on the basis that he had been a party to its infliction.

9. The evidence of A2. No evidence of any interview of A2 by the police was tendered in evidence at the trial. The only way in which the prosecution put its case against A2 was that he had been a party to an agreement to attack the deceased, and although there was no evidence that he had known that either A1 or A3 or both of them had knives, he must have become aware in the course of the attack that at least one knife was being displayed and could well be used, but nevertheless continued to participate in the attack on the deceased.

10. A2's evidence was that he had left the bar and had seen two men fighting with each other. He approached them and saw that one of them was A1, who was being beaten by a man A2 did not know. The man was on top of A1, who was on the ground, so A2 pulled him off. The attacker went into the bar saying that he was going to get his friends. While A2 was questioning A1 about what had happed, A3 arrived from an alley. A2 asked him why he had not been there during the fight, but before A3 answered the deceased "came lunging forward" from the bar and hit A3. A2 tried to separate them by grabbing the deceased's wrist. He heard someone say stop, and saw one of the eye-witnesses coming towards them. They were face to face. Suddenly, A3 grabbed his hand and told him to run. He saw the deceased staggering, and there was a little blood on the ground. A2 then fled the scene with A1 and A3.

11. The interview and evidence of A3. A3 had been interviewed by the police. He was alleged to have told them that in the course of the fight he had picked up a knife from the ground, and had stabbed the deceased in such a way that the knife had remained in his back. Unlike A1, it was not alleged that A3 had admitted that there had been any prior agreement in the bar to attack the deceased, whether with or without a weapon.

12. The prosecution's primary case against A3 was based on his alleged admission that he had stabbed the deceased in the back. Indeed, there was evidence that, in addition to the wound in the deceased's neck, the deceased had been stabbed in the back and that the blade of the knife had broken off and had remained embedded in the deceased's back. However, this could not have been the basis on which A3 could be said to have been guilty of murder as a primary offender. That is because it was not the wound in the deceased's back which had proved fatal. It was the wound in the neck from which the deceased had died. Since any stabbing by A3 of the deceased in the back had not in fact caused the deceased's death, A3 could only have been guilty of the deceased's murder as a primary offender if he had stabbed the deceased not in the back but in the neck. Since only one of A1 and A3 could have been guilty of the deceased's murder as a primary offender, the prosecution's alternative case against A3 was that he too had been a party to an agreement to attack the deceased. Although there was no evidence that he had known that A1 had a knife, he must have become aware in the course of the attack that A1 had one and was likely to use it, but nevertheless continued to participate in the attack on the deceased - presumably either by stabbing the deceased himself in the back with the knife which he was carrying or (if he had stabbed the deceased in the back before becoming aware that A1 had a knife) by continuing to attack the deceased in some other way.

13. When A3 gave evidence, he (like A1) gave a version of events which was different from the version which he was alleged to have given in interview. His evidence was that he came out of the bar with A2, and saw two or three men hitting A1. Two of the men ran off, and A2 and A3 then grabbed the deceased and asked him why "they" had been beating A1 up. The deceased ran into the bar. Shortly afterwards, a man (who must have been the deceased) came out of the bar, and began to attack A3. A3 defended himself with his hands and hit back with his fists, injuring one of his fingers as he did so. A1 and A2 were there, but A3 did not know if they became involved. At some stage, someone grabbed his arm and told him to run, and that was what he did. He had not taken a knife to the bar, nor had he picked one up from the ground. Indeed, he did not see any knives at all. There had been no mention of knives, and he had not known whether A1 or A2 had been carrying knives. Again, Mr Marash realistically conceded that the jury must have disbelieved A3's testimony, but it is not possible to tell whether the jury convicted him of murder on the basis that he had inflicted the fatal stab wound or on the basis that he had been a party to its infliction.

The judge's summing-up

14. In our previous judgment, we attempted to summarise the law on secondary liability for murder. In applying the law to the present case, we said:

"In the present case, the prosecution's case was that the three Appellants had been parties to a joint enterprise to attack the deceased. In the course of carrying out that joint enterprise, one of the Appellants had inflicted the fatal wound from which the deceased had died. If, in carrying out the attack, the Appellant who had inflicted the fatal stab wound had intended either to kill the deceased or to cause him really serious bodily injury, that Appellant would be guilty of murder as the primary offender. But the other Appellants would also be liable for his murder as secondary offenders if they had realised that there was a real risk that one of them, in the course of carrying out the attack to which the joint enterprise related, might attack the deceased with the intention of either killing him or causing him really serious bodily injury, and had continued to participate in the joint [enterprise] with that realisation."

15. This analysis was based on the law relating to secondary liability for murder as explained, inter alia, in Chan Wing Siu v. R. [1985] 1 AC 168 and R. v. Powell [1999] 1 AC 1. But having considered what those authorities had to say about the degree of foresight required, Beldam LJ said in R. v. Uddin [1999] 1 Cr App R 319 at p. 328A-B:

"Such an analysis of the assessment of risk, whilst appropriate in the case of criminals who agree together in advance to commit an offence such as armed robbery, does not readily fit the spontaneous behaviour of a group of irrational individuals who jointly attack a common victim, each intending severally to inflict serious harm by any means at their disposal and giving no thought to the means by which the others will individually commit similar offences on the same person."

He then explained at pp. 328F-329F the principles which the English Court of Appeal regarded as applicable to such a case. Those principles are as follows:

"(i) Where several persons join to attack a victim in circumstances which show that they intend to inflict serious harm and as a result of the attack the victim sustains fatal injury, they are jointly liable for murder; but if such injury inflicted with that intent is shown to have been caused solely by the actions of one participant of a type entirely different from actions which the others foresaw as part of the attack, only that participant is guilty of murder.

(ii) In deciding whether the actions are of such a different type, the use by that party of a weapon is a significant factor. If the character of the weapon, e.g. its propensity to cause death, is different from any weapon used or contemplated by the others, and if it is used with a specific intent to kill, the others are not responsible for the death unless it is proved that they knew or foresaw the likelihood of the use of such a weapon.

(iii) If some or all of the others are using weapons which could be regarded as equally likely to inflict fatal injury, the mere fact that a different weapon was used is immaterial.

(iv) If the jury conclude that the death of the victim was caused by the actions of one participant which can be said to be of a completely different type to those contemplated by the others, they are not to be regarded as parties to the death whether it amounts to murder or manslaughter. They may nevertheless be guilty of offences of wounding or inflicting grievous bodily harm with intent which they individually commit.

(v) If in the course of the concerted attack a weapon is produced by one of the participants, and the others, knowing that he has it in circumstances where he may use it in the course of the attack, participate or continue to participate in the attack, they will be guilty of murder if the weapon is used to inflict a fatal wound.

(vi) In a case in which after a concerted attack it is proved that the victim died as a result of a wound with a lethal weapon, e.g. a stab wound, but the evidence does not establish which of the participants used the weapon, then if its use was foreseen by the participants in the attack they will all be guilty of murder notwithstanding that the particular participant who administered the fatal blow cannot be identified. See R. v. Powell and another (supra). If, however, the circumstances do not show that the participants foresaw the use of a weapon of this type, none of them will be guilty of murder though they may individually have committed offences in the course of the attack.

(vii) The mere fact that by attacking the victim together each of them had the intention to inflict serious harm on the victim is insufficient to make them responsible for the death of the victim caused by the use of a lethal weapon used by one of the participants with the same or shared intention."

16. Gall J purported to direct the jury in accordance with these principles. Having given the jury the conventional direction based on the "grievous harm" rule, i.e. the direction which applied to any of the Appellants who the jury was sure had inflicted the fatal stab wound, Gall J turned to joint enterprise. At p. 22L-P, he said:

"The next matter I must tell you about is joint enterprise, because there is another way you can be guilty of murder. Where two or more persons embark upon a joint enterprise, that is, something which has a common purpose, each of them is liable for the acts done in that joint enterprise. Even if unusual consequences arise from the carrying out of that joint enterprise, each is liable for those consequences."

After giving an illustration of how the principle worked in practice to render a secondary offender liable for the crimes of the primary offender, Gall J went on to explain what the position would be if the primary offender went outside the plan to which the joint enterprise related. At p. 23L-N, he said:

"However, if one of them departs completely from what has been expressly or agreed by implication as part of the joint enterprise, he alone is liable for the consequences of his unauthorised act, because it is not done in pursuance of the joint enterprise."

After giving an illustration of how that would prevent a secondary offender from being liable for the crimes of the primary offender, Gall J summarised what the prosecution had to prove against each Appellant if they were to be convicted of murder on the basis of secondary liability. At p. 24D-N, he said:

"Therefore, before you can convict an accused on the basis of joint enterprise, the following must be proved. Firstly, that there was an unlawful joint enterprise, joint agreement, to attack the deceased in this case, of which the accused was a party - any accused. Secondly, that the act of stabbing with a knife was within the scope, was within the agreement that had been made. Thirdly, that the accused must have agreed to the person who did the stabbing to act as he did, and must have foreseen that person's act as a possible incident of the execution of that joint enterprise and, nonetheless, lent himself to it.

That, in rather more complicated words, is what I have just been saying. In this case, if an accused knew that another accused had a knife, that he took it with him intending to use it, if necessary, and knowing that if it were used, it would be used to commit really serious harm, and it was used, and the deceased died, then that accused as part of that joint enterprise, is guilty of murder."

This direction was based on the assumption that the jury was sure that the Appellant whose case the jury was considering knew that the primary offender had a knife. Gall J then went on to deal with the position if the jury was not sure of that. At p. 24N-S, he said:

"There is a secondary scenario that you also must consider. If an accused does not know that another accused is carrying a knife, but in the course of the attack upon the deceased he saw another accused use a knife - in other words, he came to the knowledge that in their joint attack upon the deceased, a knife was being used, and he still continues in the attack - that at that point he is party to a joint enterprise knowing that a knife was being used, and still making himself part of that joint enterprise, and if death results, then he is guilty of murder."

17. Gall J then proceeded to apply these directions to the cases of the individual Appellants. He posed a number of different scenarios, because in addition to secondary liability and the doctrine of joint enterprise, the judge directed the jury to consider, in relation to one or more of the Appellants, primary liability, lack of intent and provocation. Since the court's reservations, and Mr Marash's own submissions, related only to the directions on secondary liability and the doctrine of joint enterprise, I propose to set out the judge's comments on the application of his directions on secondary liability only to the cases of the individual Appellants.

18. A1. The judge summarised what A1 was alleged to have told the police when interviewed by them, i.e. that A1 had allegedly admitted that he had known that A3 "had a weapon and [had known] that it might be used should the occasion arise". He directed the jury at p. 36Q-S as follows:

".... if you are sure that he knew the knife was there, that he knew it might be used to cause really serious harm, and that he went along and still participated in the attack on that basis, then he would be guilty of murder." (Emphasis supplied)

He expressed that sentiment in slightly different but more detailed language at p. 45F-I:

"If you are not sure that he had a knife, but you are sure that he was part of an intention to assault the deceased, and in the course of that assault became aware that there was a knife, and still continued to participate, having became aware there was a knife and it was being used to cause serious harm; [if] you are sure of all those matters ...., then you would find him guilty of murder."

19. To digress for a moment, the point was made that the effect of the phrase which we have italicised in the first of these passages was seriously diluted by a comment which the judge made when reminding the jury of A1's own evidence. That evidence gave rise to the final scenario which the judge directed the jury to consider in his case. At p. 37G-K, the judge said

"The fifth scenario with [A1] is that he was present, he did attack the deceased with fists, he had no knowledge, as was his evidence, of a knife in the possession of either of the other accused, he had no intention to kill or cause serious harm, he could not have foreseen that the others would produce a knife, he never saw them produce a knife and he ran away when told to do so." (Emphasis supplied)

The point which is made is that the jury might have got the impression from the words we have highlighted in that passage that it was sufficient for the prosecution to prove that A1 could have foreseen that a knife was to be produced, and that the prosecution did not have to prove that A1 had actually to have foreseen that. I do not think that the jury might have got that impression. The judge was not telling the jury what had to be proved, but what A1's case was. He was simply telling the jury that A1's case was that he had not foreseen that anyone would produce a knife because there had not been anything to make him think that anyone had a knife on them.

20. A2. The judge reminded the jury of A2's version of events, and continued at pp. 40P-41E as follows:

"If that is true or could be true, then you must acquit [A2] because he wasn't able to know that there was a knife in use. But if you disbelieve that and you are sure that he was an active participant in the fight and that he must have been aware from .... the positioning of the wounds on the body, some front, some back, and from the amount of blood that must have flowed from them .... that he knew a knife had been produced and was used to stab and cause serious harm but continued on, then you will convict him of murder. Anything else, if his evidence could or might be true, or you are not sure that he did become aware of the knife, then you will acquit him."

Similarly, at p. 45L-O, he said:

"[A2] can only be found guilty of murder if you are sure that in the course of a common agreement to assault the deceased, he became aware that a knife was produced and was being used to cause really serious harm, and after that, continued on to participate in the common design; if you are sure of all those things, then you will convict him of murder."

21. A3. The judge's direction in relation to A3 was a little ungrammatical, but according to the transcript he said at p. 42F-I:

"The [final] scenario is the joint-enterprise scenario where [A3] does not have a knife but in the course of attack he must have become aware that a knife is being used and he continues in the attack knowing that a knife has been used and intending to be part of that attack. If you are sure that those are fact, then you will convict of murder."

This passage makes more sense if one substitutes the word "became" for the words "must have become", but the judge expressed similar sentiments in clearer language at p. 46K-M:

".... if you are not sure that he had a knife and used it, but are sure that he participated in a joint agreement to assault the deceased, that in the course of that assault, he became aware that a knife had been produced and was being used to cause serious harm; if you are sure of that, then you will convict him of murder."

Peripheral points

22. The only direct evidence of a prior agreement on the part of the Appellants to attack the deceased was what A1 was alleged to have told the police when interviewed. Since that evidence was admissible in the case of A1 only, there was no direct evidence of such a prior agreement in the cases of A2 and A3. Mr Marash submitted that there was therefore no proper basis on which the prosecution could have contended that A2 and A3 had been parties to a prior agreement to attack the deceased, and the judge should have directed the jury that the prosecution's case that there had been a prior agreement on the part of the Appellants to attack the deceased was only capable of being established against A1.

23. I cannot go along with that submission. Proof of a prior agreement to attack the deceased was not dependent on direct evidence to that effect. It was, on the evidence, open to the jury to infer, from the participation of each of the three Appellants in the attack on the deceased, that the attack on him had followed a prior agreement, or at the very least a tacit understanding, on the part of the Appellants to attack him. It is true that it would not have been open to the jury, when considering the cases of A2 and A3, to conclude that the prior agreement had been to attack the deceased with a knife, but if the summing-up is anything to go by, the prosecution never put its case on that basis. Its case on the basis of joint enterprise (i.e. secondary liability for murder) against A2 and A3 was only on the footing that they had continued to participate in the attack on the deceased after they had become aware that A1 had a knife.

24. This analysis serves to defeat a point which Mr Marash made about A2 alone. Since there was not merely no evidence that A2 had used a weapon, but also no evidence against him of any prior agreement to which he had been a party to attack the deceased, the judge should have directed the jury that A2 could only be convicted of murder on the basis that he had aided or abetted either of the other two Appellants to kill or to cause really serious bodily injury to the deceased. Not only did the judge not give the jury the appropriate direction for a defendant alleged to have aided or abetted the primary offender, but he did not direct the jury that, as a principal aiding or abetting the primary offender, he must have lent his assistance to the primary offender with the intent that the deceased should be caused at least really serious bodily injury.

25. I reject the premise on which this argument is based. For the reasons I have given, it was not the case that there was no evidence as against A2 of any prior agreement to which he was a party to attack the deceased. True, there was no direct evidence to that effect, but it was open to the jury to infer such an agreement, or at least a tacit understanding to the same effect, from the circumstances of the attack on the deceased itself.

The court's reservations

26. I turn to the reservations which at least one member of the court had about the precise terms of the judge's directions. There were three reservations in all, and I propose to deal with each of them separately.

27. (i) The intent of the primary offender. One of the facts which has to be established before a secondary offender can be liable for a murder committed by a primary offender is that the primary offender must himself have been guilty of murder. Whoever stabbed the deceased in the neck must therefore have intended either to kill the deceased or to cause him really serious bodily injury. When the judge explained the doctrine of joint enterprise to the jury at pp. 22L-24S, he did not specifically mention that. He did not mention it at all in connection with the second scenario which he invited the jury to consider (p. 24N-S) - namely the case of an Appellant who had not had a knife himself and who had not known that anyone else had a knife. And in relation to the first scenario (p. 24K-N) - namely the case of an Appellant who had not had a knife himself but who had known that someone else had one - although the judge referred to the Appellant knowing that a knife would be used to inflict really serious bodily injury, he did not go on to say that the jury had to be satisfied that it had been used with that intent.

28. However, the judge repaired that omission when he came to apply his directions to the individual Appellants. In relation to each of the Appellants, he referred to the need for that Appellant to have become aware that a knife "was being used" to cause serious harm. He said that in relation to A1 at p. 45H, to A2 at p. 45N, and to A3 at p. 46M. In the case of each of the Appellants, he added words to the effect that if the jury was not sure of that, the Appellants had to be acquitted. It is true that the judge was in these passages focusing on each Appellant's knowledge of the intent of the primary offender, rather than the intent of the primary offender itself. It is also true that the judge used the phrase "was being used" rather than "had been used", but it was undoubtedly implicit in what the judge was saying that the jury had to be sure that whoever stabbed the deceased in the neck had intended to cause the deceased at least really serious bodily injury. I do not think it possible that the jury would have thought otherwise.

29. (ii) The direction on foresight. The need for the secondary offender to have foreseen what the primary offender would do was addressed by the judge in his summing-up, but in terms which the jury might have had difficulty understanding. He described the foresight required as being foresight of "that person's act as a possible incident of the execution of [the] joint enterprise" (p. 24H-J). That language was based on what Lord Hutton had said in Powell at p. 21E-F, but it is questionable whether a jury would have appreciated from that alone that, in order to convict any of the Appellants of murder on the basis of secondary liability, the jury had to be sure that the Appellant had realised that there was a real risk that, in carrying out the joint enterprise, the primary offender would attack the deceased with the intention of either killing him or causing him really serious bodily injury. And when the judge gave his illustration of the application of the doctrine of joint enterprise (pp. 22P-24D), the illustration he gave was that of someone realising (a) the intent of the person who had the knife and (b) the consequences of an attack with a knife, rather than (c) the likelihood of an attack with a knife.

30. Once again, any defect in the judge's direction on foresight was repaired when he came to apply his directions to the individual Appellants. By referring to the need for each of the Appellants to have become aware that a knife was being used to cause serious harm, the judge was using language which the jury could easily understand. Indeed, the judge gave the Appellants the benefit of a more favourable direction than they were entitled to. All that needed to be proved was that each of the Appellants had realised that there was a risk that a knife would be used with intent to cause at least really serious bodily injury.

31. (iii) The opportunity to withdraw from the joint enterprise. In the second scenario which the judge asked the jury to consider (p. 24N-S), the judge made it clear that an Appellant who had not known that anyone else had a knife could only be convicted of murder if he had continued taking part in the attack on the deceased after becoming aware that someone else had a knife. The question arises whether the judge should have told the jury that if any of the Appellants were to be convicted of murder despite not having known beforehand that anyone else had a knife, they had to have had some time, even if only a very short time, to respond to their awareness that one of their number had armed himself with a knife. In other words, is it arguable that it was only if an Appellant had continued to participate in the joint enterprise after (a) he had become aware that someone else had a knife and (b) he had had a sufficient opportunity then to disassociate himself from the joint enterprise that the Appellant could be convicted of murder?

32. I do not think that this is arguable. If an offender embarks upon an unlawful criminal enterprise (e.g. a plan to beat someone up by kicking and punching him) which takes an unexpected turn (e.g. because a knife is unexpectedly produced), and the offender continues to participate in the enterprise (i.e. by kicking and punching the victim) knowing of the change of circumstances and realising that the change may result in a consequence (i.e. the stabbing of the victim) other than that which was originally intended (i.e. the beating of the victim), there is no reason in principle why he should not be liable as a secondary offender for the acts of the primary offender. It is unnecessary to graft onto the principle of secondary liability an additional requirement that the offender should have time to disassociate himself from the joint enterprise in view of the unexpected turn of events. None of the authorities suggest that such a refinement is necessary. The need for the offender to have time to respond to the new situation is catered for by the need for his participation in the joint enterprise to have continued with knowledge of the change of circumstances and with the realisation that that change may result in a consequence other than that which was originally intended.

The unexpected production of the knife

33. I return finally to the evidence of the eye-witnesses which suggested that the knife which had been used to inflict the fatal stab wound had only been produced late in the fight. That in turn suggested that the Appellants who had not had that knife themselves might not have known about the knife which the primary offender had until the deceased was actually being stabbed. Since that was a perfectly plausible scenario on the evidence (even though it was not one which had been advanced either by the prosecution or the defence), the jury had to be directed on the effect in law of such a scenario.

34. Principle (v) in Uddin is relevant here:

"If in the course of the concerted attack a weapon is produced by one of the participants, and the others, knowing that he has it in circumstances where he may use it in the course of the attack, participate or continue to participate in the attack, they will be guilty of murder if the weapon is used to inflict a fatal wound."

Two points should be made about this principle. First, it focuses on what the participant without the weapon contemplated the participant with the weapon might do in the future. If the participant without the weapon continued to participate in the attack knowing that the participant with the weapon might use it in the course of the attack, he will be guilty of murder if the weapon was used to inflict a fatal wound. It was his willingness to continue participating in the attack knowing that he was lending support to the possible use of the weapon which underlay his liability for murder.

35. Secondly, the principle covers only the situation where the participant without the weapon becomes aware of its production before it is used. The evidence relating to the lateness of the production of the knife in the present case meant that the Appellants who did not have the knife which was used to inflict the fatal stab wound may not have known about its presence until the deceased was actually being stabbed. That situation is not covered by principle (v) in Uddin.

36. To be convicted of murder, the Appellants who did not have the knife which was used to inflict the fatal stab wound had at the very least to have continued to participate in the attack on the deceased having realised that the knife had been used. But Mr Marash submitted that that alone would not have been enough to justify their conviction for murder. They must, so it is said, have continued to participate in the attack on the deceased, not merely having realised that a knife had been used to stab him, but in the belief that there was a real risk that the knife would continue to be used. In my opinion, that submission is correct. Only then could those Appellants be said to have participated in the attack knowing that there was a real risk that the knife would be used, which was (a) the basis for liability for murder in principle (v) in Uddin and (b) the rationale underlying the law of secondary liability for murder which we outlined in our previous judgment on this appeal and which has been summarised in para. 14 above.

37. Indeed, an example bears that out. Suppose that two men agree to attack a third man by punching and kicking him. During the attack, one of the two assailants unexpectedly produces a knife and stabs the victim a number of times who falls to the ground. That assailant then runs away. The second assailant, who saw the victim being stabbed a number of times, but who had not known before that moment that his confederate had a knife, then kicks the victim in the head a few times while he is on the ground. The victim eventually dies from the stab wound. True, the second assailant has continued to participate in the attack on the deceased knowing that a knife had repeatedly been used in the attack to stab the deceased. But that conduct should not have the effect of rendering him liable in law for the death of the deceased. That is because at no time did he participate in the attack on the deceased knowing that there was a real risk that a knife would be used, and in those circumstances it would be unjust for him to bear in law the consequences of the unforeseen but repeated use of the knife merely because of his conduct after its use at a time when it could not be used again.

38. I have not overlooked the fact that two knives were used - one whose blade was left embedded in the deceased's back and the other which caused the fatal stab wound to the deceased's neck. Nor have I overlooked the fact that the deceased had other wounds which were consistent with having been caused by knives. But in the light of the evidence of the eye-witnesses, both the production of the knives and their use could have occurred late in the fight, and that meant that a direction on the lines suggested by Mr Marash was required. Indeed, even if they had not been produced late in the fight, a direction on the lines suggested by Mr Marash was still required to cater for the possibility that they had been produced unexpectedly, even if they had been used repeatedly.

39. Did the judge give the jury such a direction? I do not think that he did. At p. 40I-L, he said:

"If a person is party to one agreement and the nature of it changes by the production of a weapon and he is aware of that production of a weapon and that it is being used to stab and nevertheless goes on and continues with the agreement having obtained that knowledge, then he is guilty of murder." (Emphasis supplied)

If the words "is being used" meant "is going to be used", this would have been a perfectly adequate direction in accordance with principle (v) in Uddin. But what was required in addition was a direction covering the situation where the Appellants who had not had the knife which caused the fatal stab wound became aware of its production only while it was being used, rather than before it had been used. On the other hand, if the words "is being used" were meant literally, and if the judge was therefore directing the jury as to the legal effect of a scenario in which the Appellants who had not had the knife which caused the fatal stab wound only became aware of it while the deceased was being stabbed, it was incumbent on the judge to direct the jury that those Appellants could only be convicted of murder if they had believed that there was a real risk that the knife would continue to be used.

40. The same can be said for what the judge said when he applied his directions to the cases of the individual Appellants. I take A2 and A3 first, because of the two Appellants who the prosecution alleged could have been the primary offender, A1 was plainly the Appellant who the prosecution said was the more likely of the two to have inflicted the fatal stab wound. I have already quoted in paras. 20 and 21 above the passages from the summing-up relating to them, but convenience I repeat them here. In relation to A2, the judge said at p. 45L-O:

"[A2] can only be found guilty of murder if you are sure that in the course of a common agreement to assault the deceased, he became aware that a knife was produced and was being used to cause really serious harm, and after that, continued on to participate in the common design; if you are sure of all those things, then you will convict him of murder." (Emphasis supplied)

And in relation to A3, he said at p. 46K-M:

".... if you are not sure that he had a knife and used it, but are sure that he participated in a joint agreement to assault the deceased, that in the course of that assault, he became aware that a knife had been produced and was being used to cause serious harm; if you are sure of that, then you will convict him of murder." (Emphasis supplied)

These passages suggest that it would have been sufficient to convict them of murder if they had continued to participate in the attack on the deceased knowing that the knife had been produced and "was being used".

41. If the words "was being used" meant "was going to be used", these directions would have been perfectly adequate directions in accordance with principle (v) in Uddin. But what was required in addition was a direction covering the situation where the Appellants became aware of the production of the knife while it was being used or after it had been used, rather than before it had been used. On the other hand, if the words "was being used" were meant literally, and if the judge was therefore directing the jury as to the legal effect of a scenario in which A2 and A3 only became aware of the knife while the deceased was being stabbed, it was incumbent on the judge to direct the jury that A2 and A3 could only be convicted of murder if they had believed that there was a real risk that the knife would continue to be used.

42. In summary, then, if the jury's conclusion was that A2 and A3 had not known about the knife until the deceased was actually being stabbed, they could only have been convicted of murder if they had continued to participate in the attack on the deceased in the belief that there was a real risk that the knife would continue to be used in the attack on the deceased. The judge's failure to give the jury a direction on those lines was fatal to their convictions.

43. A1's case requires more detailed analysis. Leaving aside issues of intent and provocation, the judge initially left three scenarios for the jury to consider. The first was on the footing that A1 had inflicted the fatal stab wound himself. The second was on the footing that although he had not had a knife himself, he had known that one of the other Appellants had a knife which was to be used in the attack on the deceased if the need arose. The third was on the footing that, not only had he not had a knife himself, but he had also not known that either of the other Appellants had had a knife, and he had not seen a knife produced in the fight. For some reason, one of the scenarios which the judge invited the jury to consider in the cases of A2 and A3 was not referred to when the judge was initially dealing with A1's case - namely that although he had not had a knife himself and had not known that either of the other Appellants had a knife, he saw one produced in the course of the attack. It may be that the judge had been intending to leave that scenario to the jury but forgot to do so, which would explain why on p. 37 he moved from what he described as the third scenario to what he described as the fifth scenario, without referring to a fourth.

44. However, at the conclusion of the summing-up, he left for the jury to consider precisely the same scenario as he invited the jury to consider in the cases of A2 and A3. I have referred earlier to the relevant passage in his summing-up, but for convenience I set it out again here. It is at p. 45F-I, and reads as follows:

"If you are not sure that he had a knife, but you are sure that he was part of an intention to assault the deceased, and in the course of that assault became aware that there was a knife, and still continued to participate, having became aware there was a knife and it was being used to cause serious harm; [if] you are sure of all those matters ...., then you would find him guilty of murder." (Emphasis supplied)

That passage is subject to the same defect as the equivalent passages relating to A2 and A3. Since we do not know the basis on which the jury convicted A1, and since it is possible that they convicted him on the basis of this misdirection, the misdirection was fatal to his conviction as well.

Conclusion

45. For these reasons, I would have allowed the Appellants' appeals and I would have ordered that their convictions for murder be quashed. I see no reason whatever why they should not be re-tried for the murder of the deceased, and I would therefore have ordered that there be a re-trial of the Appellants on the indictment which they faced.

Stuart-Moore V-P:

46. I have read Keith JA's judgment and, for present purposes, I shall adopt most of the factual background which he has set out. Regrettably, I am in disagreement with his conclusion, reached under the heading to paragraph 33: "The unexpected production of the knife", although I am in complete agreement with his disposal of the three issues on which he had requested to hear argument. There was no substance to any of those points.

47. Taking briefly some of the most crucial evidence in the trial, there had been direct evidence against A3, from the confession he had allegedly made to police, that he had a knife in his possession at some stage during the fight and that he had used it to stab the deceased in the back. Against A1, there was evidence from an eye-witness which identified him as having stabbed the deceased in the neck. However, when A3 and A1 gave evidence, they each insisted that, whilst they had used their fists, they had not been armed with a knife at any stage during the fight.

48. The case against A2 was distinguishable from the other two in that there was no suggestion that he had ever been armed with a lethal weapon.

49. On any view, the judge had a variety of possible scenarios to cover in order to enable the jury to know precisely what had to be established against each appellant before a conviction for murder could be returned. It is unnecessary to set all of these out again and, to the extent that Keith JA has accepted that Gall J properly directed the jury on these various scenarios, I am in agreement with his judgment.

50. I do, however, need to repeat some of the trial judge's directions where they were focused on the issue which arises under the topic on which Keith JA found that the judge had misdirected the jury. This is to demonstrate how, in my opinion, the judge had properly directed the jury in terms which closely follow the guidance given in R v Uddin [1999] 1 Cr App R 319.

51. After his directions as to joint enterprise generally, dealing with the position where one appellant knew that one of the others had a knife, which was being carried with an intention to use it if the need arose, the trial judge had gone on to direct the jury:

"There is a second scenario that you also must consider. If an accused does not know that another accused is carrying a knife, but in the course of the attack upon the deceased he saw another accused use a knife - in other words, he came to the knowledge that in their joint attack upon the deceased, a knife was being used, and he still continues in the attack - then at that point he is party to a joint enterprise knowing that a knife was being used, and still making himself part of that joint enterprise, and if death results, then he is guilty of murder." (Emphasis added) (Appeal bundle p. 24N-S)

52. The judge then directed the jury in regard to each appellant on this specific scenario. In regard to A1, he said:

"If you are not sure that he had a knife, but you are sure that he was part of an intention to assault the deceased, and in the course of that assault became aware that there was a knife, and still continued to participate, having become aware there was a knife and it was being used to cause serious harm; you are sure of all those matters .... then you would find him guilty of murder." (Emphasis added) (Appeal bundle p. 45F-I)

53. The judge had earlier specifically directed the jury, in the terms set out in Keith JA's judgment taken from page 37G-K of the transcript, along the lines of A1's defence, that if A1 had been attacking with fists, having no knowledge either before or during the fight of a knife in the possession of one of the other two, that:

".... if that could or might be true then you will acquit him completely because he is not guilty of anything of which he is charged."

54. In A3's case, the judge gave very similar directions. Firstly, in this context, he dealt with what he called the "joint enterprise scenario" where A3 was not himself armed with a knife but became aware that a knife was being used by someone else and:

"... he continues in the attack knowing that a knife has been used and intending to be part of the attack." (Appeal bundle p. 42H)

55. On this basis, assuming they were sure, the jury were directed that they should convict of murder.

56. Before the judge elaborated on this direction, he dealt with the position where the jury either accepted A3's version given in his defence or thought that it might be true by saying:

".... then he is innocent, because he says he knew nothing of knives; he did not see one in the fight; he did not use one, and it was never part of any joint endeavour in which he participated." (Appeal bundle p. 44F-H)

57. A little later, when further directing the jury as to the law on these points, the judge said:

"..... if you are not sure that he (A3) had a knife and used it, but are sure that he participated in a joint agreement to assault the deceased, that in the course of that assault, he became aware that a knife had been produced and was being used to cause serious harm; if you are sure of that, then you will convict him of murder ..... Lastly, if his evidence of not having a knife, not seeing a knife and not using a knife could or might be true, you will acquit him." (Emphasis added) (Appeal bundle p. 46K-S)

58. The judge would have perhaps been better advised to have stuck to the formula he had used twice already in the passages I have cited in paragraphs 51 and 52 (above). However, it would have been apparent from the first of these, which had general application to A3, and from the passage just cited, that the prosecution had to prove continued participation on A3's part after he had become aware that a knife was being used to cause serious harm.

59. The case against A2 was described by the judge as being "actually very narrow". The judge examined it in the light of what A2 had said in evidence pointing out particularly that there was no evidence that A2 had ever been seen with a knife. Having summarised A2's account, the judge went on to say:

"The prosecution case is this: They say that the 2nd accused was part of an agreement between the 1st, 2nd and 3rd accused to beat the deceased. There is no evidence of the knowledge of the 2nd accused of any weapon prior to the beating of the deceased. Mr Bell says that the implication from all the events surrounding the beating of the deceased is that the 2nd accused must have become aware that the deceased was being stabbed and that, having become aware, he continued with the joint agreement.

You might remember that was one of the scenarios I gave you. If a person is party to one agreement and the nature of it changes by the production of a weapon and he is aware of that production of a weapon and that it is being used to stab and nonetheless goes on and continues with the agreement having obtained that knowledge, then he is guilty of murder.

The 2nd accused says: 'Well, I didn't know of any knives.' That is borne out by the evidence. There is no evidence he did up till the point of the fight. He said: 'I had only grabbed the deceased by the wrist when I heard Chetre Sudarsan shouting, "Brother. Brother. Stop." I turned my back. There were noises behind me. I was then grabbed by the 3rd accused' - who incidentally says it wasn't him - 'and we ran.' If that is true or could be true, then you must acquit the 2nd accused because he wasn't able to know that there was a knife in use.

But if you disbelieve that and you are sure that he was an active participant in the fight and that he must have been aware from, Mr Bell says, the positioning of the wounds on the body, some front, some back, and from the amount of blood that must have flowed from them - if he must have become aware and you are sure that he became aware, because remember in everything you have to be sure, anything less than sure, and you have to reject the evidence - so if you are sure that he knew a knife had been produced and was used to stab and cause serious harm but continued on, then you will convict him of murder. Anything else, if his evidence could or might be true, or you are not sure that he did become aware of the knife, then you will acquit him.... You can only convict him of murder if you are sure." (Emphasis added) (Appeal bundle p. 40D-41G)

60. Finally, in A2's case, the judge said:

"The 2nd Accused can only be found guilty of murder if you are sure that in the course of a common agreement to assault the deceased, he became aware that a knife was produced and was being used to cause really serious harm, and after that, continued on to participate in the common design; if you are sure of all those things, then you will convict him or murder." (Emphasis added) (Appeal bundle p. 45L-O)

61. With these directions in mind, I turn to Keith JA's suggestion at paragraph 42 that in regard to A2 and A3:

".... if the jury's conclusion was that A2 and A3 had not known about the knife until the deceased was actually being stabbed, they could only have been convicted of murder if they had continued to participate in the attack on the deceased in the belief that there was a real risk that the knife would continue to be used in the attack on the deceased. The judge's failure to give the jury a direction on those lines was fatal to their convictions." (Emphasis added)

62. Keith JA went on to suggest in the subsequent paragraphs of his judgment that Gall J's directions concerning A1:

"were subject to the same defect as the equivalent passages relating to A1".

63. I disagree. No fixed formula of words was required from the trial judge, but in any event there could not have been a more dramatic illustration of a real risk of the continued use of the knife than where it had been produced and was already being used.

64. As Mr Blanchflower, SC, was at pains to point out, in R v Powell and Daniels and Anor [1998] 1 Cr App R 261 at p. 286, Lord Hutton had emphasised that there was no fixed formula for directing juries on the liability of secondary offenders:

".... as the Privy Council also stated in Chan Wing-siu, in directing the jury the trial judge need not adopt a set of fixed formulae, and the form of words used should be that best suited to the facts of the individual case."

65. Mr Blanchflower contended that the judge in the present case had tailored the summing up on the law to fit the facts which the jury had to assess and he reminded us that in R v Greatrex and Bates [1999] 1 Cr App R 126, which was also concerned with a gang attack, Beldam LJ applied Lord Hutton's advice where, at 140, he said:

"In such circumstances, as Lord Hutton (in Powell and Daniels) pointed out, fine analysis and legal theory have to yield in part to common sense and more flexible formulation."

66. Uddin was a case where the nature of the attack had been spontaneous. One of the two main grounds of appeal was that the trial judge, in dealing with joint enterprise, had failed to direct the jury that "as a secondary party to the killing, they had to be sure that the Appellant foresaw the use of a knife as a possibility if he was to be found guilty of murder".

67. The principles arising from that case have already been set out by Keith JA. For present purposes and for the sake of convenience, principle (v) needs to be restated. It was in these terms:

"(v) If in the course of the concerted attack a weapon is produced by one of the participants, and the others, knowing that he has it in circumstances where he may use it in the course of the attack, participate or continue to participate in the attack, they will be guilty of murder if the weapon is used to inflict a fatal wound." (Emphasis added)

68. In the case we are presently considering, where not one but two knives were drawn at some stage, the circumstances were such that a jury was obviously entitled to conclude that anyone seeing them produced would realise they might be used to inflict serious harm in the course of the attack. I am unable to agree with Keith JA's criticism of the judge's directions to the jury as to what the position would be where the nature of an agreement simply to assault or beat up the deceased was changed by the production of a weapon "being used to stab". It is true that the judge might have chosen to say that the weapon "would continue to be used in the attack", but I do not, in saying this, mean to imply that he was wrong to have put the matter in the way it was left to the jury. On the contrary, the judge had realistically and sensibly chosen his phraseology to reflect the evidence which had been given. If any appellant was aware a knife was being used to stab and continued to participate in the attack on the deceased, he would plainly have been guilty of murder.

69. There were, according to the evidence, a number of wounds on the body of the deceased which were consistent with having been made by knives. This was not a case of a single knife being used just once to inflict a blow to the deceased. At least two knives were used. Both were used to inflict serious injuries although precisely how many of the deceased's injuries were caused by these knives, the pathologist was apparently unable to say with any certainty. The judge put the matter in this way:

".... (the deceased) died, as you will remember from the forensic pathologist, from the wound to the back of his neck. There were a number of wounds on his body consistent with being made by knives. All the cuts were consistent with being made by knives, the stab wounds by knives, and you will recall the evidence of the forensic pathologist that the abrasions were capable of being caused by the tip of a knife." (Appeal bundle p. 34Q-35B)

70. Returning to the directions given by the judge, it is clear that time and again the judge had emphasised that guilt, on the basis of joint enterprise, where there had been no prior awareness of the presence of a knife, could only be established when continued participation was proved after the appellant whose case the jury were considering had become aware of a knife which was being used to cause serious bodily harm.

71. When these directions are placed alongside Uddin it can immediately be seen how closely the judge had adhered to the direction formulated under principle (v). Here, this was a concerted attack by at least three men onto one victim, the deceased. At some stage, two knives were produced, there being direct evidence, if accepted, to prove that A1 and A3 each held one of them. Despite this, as a result of the evidence provided by these appellants in their own defence, the possibility that neither of them had in fact held a knife had to be considered by the jury. It was this which had given rise to the necessity of a "principle (v)" (Uddin) direction. This required the jury to be told, in effect, that the appellant whose case was being considered by the jury knew that one of the others in his group, attacking the deceased, had produced a lethal weapon in circumstances where he might use it in the attack. The fact that it "was being" used was a circumstance which more than amply demonstrated the purpose of that participant holding the weapon.

72. The important aspect of the direction, as Gall J appreciated in his carefully chosen words to the jury, was that for an appellant to be guilty of murder, he should know that another participant was holding a knife and was using it for the purposes of causing serious injury and that he continued to participate in the attack. The judge had, in other words, commendably moulded his summing up to fit a possible scenario presented on the evidence the jury had heard, unencumbered by legal theory which might have invited irrelevant speculation.

73. The fact that the fatal blow may have come towards the end of the incident does not mean that one or both knives were produced so late or unexpectedly in the events that there was no time for continued participation by the others as Keith JA seems to be suggesting. It is true that one particular eye-witness observed one of the knives in the hand of one of the assailants when the fight was almost over. Other evidence, notably that given by the pathologist with which I have dealt, indicated much more than the single cut and thrust of one knife. The two knives which were undoubtedly used in the fight were responsible for a variety of cuts and wounds to the front and back of the deceased's body.

74. The example cited by Keith JA in paragraph 37 of an assailant unexpectedly producing a knife and using it to stab the victim just before running away from a fight involving others was in fact advanced by Mr Marash to illustrate, in his submission, how joint enterprise would not be made out against a second participant who remained at the scene and continued to attack the victim after the knifeman had run away, making the continued use of the knife impossible.

75. Keith JA described this as a "perfectly plausible scenario" when applied to this case. It is interesting, if that were really so, how the three highly-experienced counsel who represented the appellants at trial seem never to have raised such a scenario, even as a remote possibility.

76. We do not have to address such a situation, let alone decide it. However, to have adopted counsel's argument in the present appeal as Keith JA appears to have done is, I consider, unfortunate when no such scenario, as trial counsel recognised, had ever arisen. Far from having misdirected the jury, in my opinion the judge had taken meticulous care to remain within the ambit of the evidence, never once straying into this kind of irrelevance. On this aspect of the case, it is worth emphasising perhaps that the four eye-witnesses saw the three men who had been attacking the deceased run away to a taxi as a group when the attack had ended. The jury must have been satisfied, on the directions they had repeatedly been given, that any unarmed appellant, having become aware that a knife was being used, had continued to participate in the attack before he and the others ran off together.

77. In my view, the matter had been properly left to the jury to decide whether any or all of the appellants had continued to participate in the attack in a way which would render them guilty of murder having become aware that a knife was being used to cause serious harm. I reject the criticism of Gall J's directions. This criticism appears to assume a statutory and inflexible status for the passages cited from Uddin, applied to circumstances which are divorced from the particular facts of the case.

78. This was a classic example of a joint enterprise attack. The judge's task was an extremely difficult one which, in my view, he carried out with care and clarity when providing an intelligible and sensible summary of the law as it applied to each of the possible scenarios raised by the evidence.

79. I would dismiss these appeals.

Stock JA:

80. I agree that the three reservations identified at paragraphs 26 to 32 of the judgment of Keith JA provide, in the event, no foundation for allowing the appeals.

81. The basis upon which Keith JA would allow the appeal of each appellant is directed at a limited factual scenario. It is not one which assumes that the participation of the secondary participant or participants (the one or ones who were not in possession of a knife) ceased immediately he or they appreciated that a knife had been used. It is common ground that, if those were the facts found by the jury, the judge's directions, if followed, required an acquittal. Nor is it one that assumes that the oral testimony of any of the appellants might have been true. That testimony, in each case, was that the appellant never saw a knife at all and departed the scene as soon as he was urged by one of the others to do so, one or more of them seeing some blood about at the same time. Again, if such an account were true or might be true, the judge's direction required an acquittal. It is accepted, I believe, that the jury must have rejected the testimony of each appellant.

82. The basis proffered is one which presupposes an unexpected attack with a knife by one of the appellants, unexpected in the sense that the others did not know that one of their number possessed a knife or that it might be used, and that thereafter the unarmed assailants, realising for the first time that a knife had been used, continued nonetheless to attack the victim, but without appreciating or realising that that knife might be used again. The example is given of the knife wielder who runs away, whereas his unarmed friends, taken wholly by surprise by the production and use - even the repeated use - of a knife, nonetheless stay behind and kick the prostrate victim about his head.

83. I do not think it necessary to decide whether, in that scenario, the person who thus puts the boot in, after the stabbing which he has just witnessed, thereby becomes party to the murder which undoubtedly has been committed by the primary offender. Some might say that in such a case the added brutality will inevitably have contributed to death. Furthermore, there will no doubt be cases, and I think that this would be one of them, where conduct of that nature might well be said to be cogent evidence from which to conclude that the non-armed participant was at all material times present and willing to assist in whatever attack, and by whatever method, the others chose to inflict, thereby rendering himself party to what in fact transpired.

84. The more particular problem with the postulated scenario, so it seems to me, is that, within the factual matrix of this case, it is, with respect, unrealistic and without a proper evidential foundation.

85. This was a case in which there were occasioned multiple cut wounds, and evidence suggesting more than one knife. The cuts or stab wounds were on the forehead, over the right eyebrow, between the eyebrows, to the back of the neck, to the middle of the back, and to the right buttock. There was no question of only a single blow with a knife. It was not the prosecution case, nor the evidence, that there was but one strike with a knife at the very end of this attack. More specifically, it was not the evidence that one of the attackers fled ahead of the others, leaving those others behind to continue with their unarmed assault. Rather, the thrust of the evidence was that there were men trying to pull all three assailants off the victim and, more importantly, that all three, when they fled, fled together. That too is the clear sense that emerges from the interviews of the lst and 3rd appellants, both of whom, it is not to be forgotten, are said to have made inculpatory admissions concerning knives.

86. Furthermore, the suggested scenario finds no echo in the evidence of the appellants themselves. As far as the statements of A1 and A3 go, A1 knew well in advance of the fight that a knife was being carried, and A3 saw a knife (described by him in his interview as a one foot long sword-like weapon) in use during the fight, and himself used another knife. As for the testimony of the appellants, none suggested that he saw a knife at any stage. Their case was that they never saw a knife. None suggested that, having seen a knife used once, he did not contemplate that it might be used again. Indeed, it is difficult to see that such a contention could, in the absence of an assertion that the knife user fled or was suddenly incapacitated, be tenable. There was no assertion by any appellant that one of their number fled ahead of the others. It follows that there was also no assertion that one fled whilst the others continued their attack.

87. Whilst there is one passage (at 41B-D of the Appeal bundle) in which the judge told the jury that a murder verdict was open to them if they were sure that an appellant "knew a knife had been produced and was used to stab and cause serious harm but continued on," the overwhelming body of the summing up carries the clear flavour that parasitic accessory liability (to borrow a phrase coined by Professor Sir John Smith) in this case could only attach if a defendant continued an attack knowing that a knife was in use, was 'being used', phrases, in other words, which suggested an ongoing use of such a weapon. This accorded with the facts of the case, for clearly there was no mere isolated stab.

88. The question whether the judge should have given a direction in the terms suggested by Keith JA is one which I do not lightly dismiss, for in the course of argument it is one which caused me some concern. But I have concluded, for the reasons which I have now provided, that there is in the event no material flaw or omission in the summing up.

89. I would accordingly dismiss the appeals.

Stuart-Moore V-P:

90. It follows that, by a majority, these appeals are dismissed.