HKSAR v. YEUNG YEUNG

CACC 149/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 149 OF 2006

(ON APPEAL FROM HCCC NO. 220 of 2005)

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J U D G M E N T

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Stuart-Moore, :

Background

1.  On 13 March 2006, the applicant pleaded guilty to counts of burglary and robbery (counts 1 and 2) and was convicted on 23 March 2006 of murder (count 3) following a trial before Beeson J and a jury. 

2.  In short, the alleged murder occurred after a falling out between thieves.  Two of them used rocks, each taking a turn to strike a heavy blow to the back of the deceased’s head.  Then, fearing that the applicant might betray them if he did not also play a role in the killing, they told him to join in.  The applicant did so, and he described how he threw about three heavy “stones” which hit the deceased’s head as the deceased lay on the ground still alive.  He gave as his reason for acting in this way that he thought he would be in danger if he did not do so.

3.  This now comes before us as an application for leave to appeal against the conviction for murder on the 3^rd count.

4.  There were three main grounds of appeal.

5.  The first two grounds concerned the initial ruling given by the judge, together with the underlying reasons for it, that the count of murder should be withdrawn from consideration by the jury and substituted by a count of wounding with intent.  This followed submissions from defence counsel in the jury’s absence after the evidence had concluded and before final speeches.  Subsequently, having heard fresh submissions from leading counsel, and in the realisation that her earlier ruling had been in error, the judge decided to allow the murder count to remain.  This turn of events was described in the 1^st ground of appeal as a material irregularity.

6.  The argument, both here and below, which led to the rulings covered by the first ground, centred upon whether there was sufficient evidence to prove causation, linking the applicant’s action to the cause of death.  This now forms the subject matter of the 2^nd ground of appeal.

7.  The other principal ground of appeal was that the judge erred by failing to leave an alternative of manslaughter to the jury when, according to Mr Chandler who appeared in these proceedings as well as for the defence at trial, a defence had been advanced that, at the time the applicant threw rocks at the head of a mainlander known only as ‘Shan Tung’ (the deceased), he did not have the intention to kill or to cause serious bodily harm.  It was submitted, following the House of Lord’s decision in R v Coutts [2006] 4 All ER 353, that the alternative verdict was obviously raised by the evidence and ought to have been considered by the jury.

The facts

8.  In setting out the facts, I propose to adopt part of the summary of the case presented against the applicant which Mr Zervos SC for the respondent has helpfully provided.

9.  The applicant did not testify at trial and the prosecution’s case was largely based upon the replies he had given in interviews with the police following his arrest.  Neither the admissibility nor the accuracy of the interviews was contested although there were some reservations at trial on the part of the court’s interpreter about the English translation provided to the jury.  The amendments were carefully noted, the jury were reminded of them and a list of them has been provided to us.

10.  In March 2005, the applicant sneaked into Hong Kong from the Mainland.  He was arrested on 7 April 2005 on a hillside in the Tuen Mun area during a police investigation into a report that there were suspected illegal immigrants in that general location.  When the applicant was arrested, police found a gold bracelet and a mobile telephone in his possession which were later identified as having been stolen in the course of a robbery of a female victim on 30 March 2005.  Whilst being interviewed about his possession of these items, the applicant admitted not only his involvement in a robbery but also in the burglary of a temple in Tuen Mun.

11.  The applicant was being questioned about the burglary when he disclosed that he had also been involved with two other men (whose identities are unknown) in the killing of the deceased, known to him only as ‘Shan Tung’.  He described how “stones” had been used both to throw at and to strike the deceased’s head.  He admitted that he had himself thrown three “stones” at the deceased’s head each weighing about “7 or 8 catties”.  He and the other two men had then buried the body.

12.  Later, the applicant took the police to the burial place.  After that, the applicant provided the police with a full account of the killing.

13.  A post-mortem was held and I shall turn to the pathologist’s findings in greater detail in the context of the 1^st ground of appeal which deals with the application by the defence at trial to have the murder charge withdrawn from the jury’s consideration and substituted by a count of wounding with intent.  Suffice it to say, Dr Yu found ten separate blows caused by “major force” to the skull which were, in his opinion, inflicted while the deceased was still alive.  A scientific officer, from blood-spatter patterns, confirmed that major force had been used.

14.  The judge dealt with the applicant’s three interviews sequentially, summarising passages taken from the full interviews which were exhibited at trial.

15.  In the first interview, the applicant explained how an argument started between his two companions and the deceased over the amount of money stolen from a money box in the temple.  He referred to the other two men by describing them, respectively, as “fat” and “thin”.  He went on to say that all three of them had killed the deceased and that he could locate the burial place.  The other two, he said, had escaped up the hill when they saw the police searching for them.

16.  When the applicant admitted that he and the other two men had killed the deceased, he explained that he had decided to tell the police in order to “feel better”.  He went on to say “the fat big brother said all three of us had to hit” and that he had no alternative but to join in.  When asked to explain this answer, he said:

“	I saw [the fat one] hit the head of the bleeding person, at that time, he was bleeding, lied (down) on the ground …
	They said that the three (of us) had to hit, we still took the stone to hit the back of (his) head …” (Appeal bundle p. 92)

17.  The second interview was effectively a visit to the scene of the crime.  There, the applicant directed the police to the place where the deceased had been buried in a shallow grave.

18.  In the third interview, the applicant went into the greatest detail about what had happened.  Having rehearsed his general background, he described how he had met the deceased in Shenzhen and came to Hong Kong with him and two other men who also wanted to go there.  They had said “it was easy to snatch money in Hong Kong”.

19.  Again, the applicant admitted killing the deceased and, when asked why he had done so, he said it was because the deceased had refused to share the money stolen from the temple.  However, he continued by telling the police that suddenly the fat man hit the deceased with a big stone on the back of the head causing the deceased to lie on the ground unconscious.  He was hit again, apparently this time by the thin man.  Then, when the fat man told the applicant to hit the deceased and said: “What are you looking at … do you want to betray us?”, the applicant did as he was told as he thought he was in danger.

20.  When dealing with the salient parts of the remainder of this interview in the summing up, making reference to the deceased as Shan Tung and to the counter numbers on the transcription, the judge said:

“	… At 839 he says: ‘I lifted up three stones from the rubble and threw them downwards. He died just down below there, I just’. At 841 he says: ‘Probably I had struck -- struck him three times, anyway, I can’t remember clearly.’ Again the question whether he struck him is a matter you have to consider, and how many times he struck him is for you to decide. Bear in mind that he gives different answers about that in different places in the video interview.
	At 855 he says: ‘If I didn’t strike him at that time, I thought I would not come out as the winner if I fought with the two of them.’ In other words, he was saying that he was, presumably, frightened of sharing the same fate if he tried to fight the ‘Fat Guy’ and the ‘Thin Guy’ together. At 857 he says: ‘I could only obey them, could only be obedient to them.’ At 867 he repeats that: ‘I thought in my heart that if I didn’t join in the beating, I might be in danger too.’ At 869 he mentions that, ‘When I thought of this, I struck him’.
	He confirms that the three separate pieces of stone were thrown one after the other. He says that he picked up the items of stone from the place where he was. At 883 he says: ‘I didn’t go down, I was just standing up above, throwing stones downwards’. At 887 he says: ‘The stones probably -- anyway were quite heavy, probably had’ - he was asked how big they were. At 895 he says, ‘They were about 7 to 8 catties of stones, might be’. In the context of the answer that he gives, you might think he is referring to the stones that he was dealing with at that time. That has been challenged by the defence who say they could be any of the stones generally.
	He says that he was positioned above Shan Tung. He was standing on what he refers to as ‘the steps’ which is the slope.  ‘He was lying down there while I was standing on the steps.  You have been told by the Scientific Evidence Officer that the distance up to the slope was probably about 2 metres, and he was standing up higher than that. So it is reasonably close range but enough distance to give some force to the throw if he wanted to.
	At 905 he is asked: ‘You had thrown three pieces of stone. Did every piece actually hit him?’ At 907 he says: ‘Yes, hit him,’ presumably answering that question in the affirmative. In other words, he threw stones that hit the deceased. That question is repeated at 910. ‘Did every piece of stone hit on him actually?’ and he said, ‘Yes’. Again it is not clear whether it is referring to all the stones thrown by the three persons or whether just his stones, but in the context of the interview, you might think it is likely to be referring to his stones.
	At 916 he says the stones were almost the same size, they would not vary very much. When he was asked which part of the body did he hit, he said this was also the back of the head. ‘He was sleeping on the ground and we all hit him in the head.’ ‘When you hit him on the head,’ he was asked, ‘what did you actually see?’ - this was his first blow with the stone, and he refers to, ‘I hit him and blood splashed out’. At 928: ‘I hit him on his head, blood splashed from the back, his blood, blood gushed out.’ ‘Blood gushed out’ was our interpreter’s retranslation of it. At 930 he says: ‘His head, it seemed like I see the brain inside his head.’ And it was at that point that he threw the stone, his own stone.
	At 940 he refers again to seeing the brain inside, ‘which was the same as a human brain’. At 944 he refers to seeing ‘Shan Tung panting and breathing at that time’. At 952 he says: ‘When I threw the third piece of stone, it seemed that he -- it seems that he had not died -- had not died yet, only that they told me to strike him. After striking him several times, it seemed he made no more sound.’ When referring to ‘they’ in that context, he refers to the ‘Fat Guy’ and the other man at 956. It was suggested to him that, at 959, when he threw the third stone, his head would become flat if he aimed at the same position. He said: ‘No, they -- his -- for example, this was the face, he in fact -- it seemed he was already like that when I struck him.’ In other words, there was already damage to the back of the head. At 963 he is asked: ‘Later, did the “Fat Guy” and the other person strike him any further,’ and he said, ‘Probably they had struck him one or two times’.
	At 968 he says: ‘The thinner one got -- struck him once -- struck him once with something that looked like a stone carried in his hands. He struck -- seemed he struck in fact twice.’  This appears to be after the initial blows made by the ‘Fat Guy’ and the ‘Thin Guy’. Then he says that, ‘The other guy, the fat one, carried a stone and then he struck once or twice’. At 976 he says: ‘At that time, Shan Tung, it seemed, uttered no more sound or word but seemed he was dead and had no breathing.’ At 977, the interpreter interprets that: ‘At that time it seemed Shan Tung did not utter any sound, it seemed he was dead.’ It does not make any reference to the breathing. At 978, the inspector asks: ‘The final strike, who did it?’ and at 980, he says that that’s the ‘Fat Guy’.
	The question at 982: ‘Finally, when Shan Tung was beaten, beaten when he was first struck, Shan Tung was already struck, lying -- struck down, lying there, did he struggle? Did he make any sound or so?’. At 983, the interpreter interprets that: ‘In the first time when Shan Tung was struck and fell down, did Shan Tung struggle or did he not make any sound?’ and the answer to the question put by the interpreter is: ‘No, the first time when he was struck once, he gave a groan and then he fell and did not move any more.’ He was then asked questions to confirm what he had previously said. He confirms, at 994, that he threw three pieces of stone.
	The inspector then went on to ask questions, from 1000 on, about his intentions, and suggested that, ‘That means you wanted to kill him, didn’t you?’. The answer by the defendant was he did not want him dead, ‘We -- he -- that is the “Fat Guy”, he said he didn’t want to kill him, must have him -- beat him to death’. The interpreter interprets that as ‘That means the “Fat Guy” said no, must have him beaten to death’. The answer on the transcript has changed to that extent.
	At 1006 and 1007 is another omission by the interpreter. The answer is put: ‘I didn’t strike him. Even if I didn’t strike those three pieces of stone, he would also die.’ The words ‘I didn’t strike him’ are left out of the answer. The answer just comes back to the Inspector as, ‘Even if I didn’t strike those three pieces of stone to him, he would also die’.
	He is then asked a question, at 1008, ‘Do you agree Shan Tung’s injuries and death were caused by those three pieces of stone of yours?’. This is really a question that he is not in a position to answer very capably. It is a question which should really have been put to a doctor. His answer is, ‘Absolutely. As I had taken part in it, I definitely knew that I had a part to play,’ which does not entirely answer the question that is put by the Inspector, which is not surprising because it is not a question he can really answer. He is asked whether the injuries and death were caused by those three pieces of stone. That in fact is a matter for you to decide as a matter of fact. His answer, ‘Absolutely,’ it is not entirely clear whether he was saying that ‘Absolutely, yes, that the injuries and death were caused by those three pieces of my stone’. He certainly agrees he had a part to play, but you might think those answers as to whether his actions were a cause of death are not very reliable because it is not possible for him to answer them.
	He is asked about whether he thought of saving Shan Tung and he says, ‘In fact, at that time it was impossible for me to have the thought of saving him by myself. How could I save him just by myself?’.
	At 1036, he confirms that, ‘After the “Fat Guy” struck the stone, made the last strike, Shan Tung did not utter any sound or word’. This is in answer to the question, when did he confirm that Shan Tung was dead. 1040 he says: ‘Later they said, “let us bury the body.” We then buried. In fact, I said bury the body.’ And at 1040 to 1095 he describes how the burial was done. They buried him in the ditch and covered him with the clothing and the items that were later found by the police when they came to the grave site, and also the Scientific Evidence Officer. They confirmed that they buried him with his face facing the ground, his legs curled so that they folded into the hole that they had dug.” (Appeal bundle pp. 51-55)

21.  In short, the applicant admitted striking the deceased on the back of the head with about three “stones” which were “quite heavy” after the deceased had become unconscious and was lying in a ditch.  The applicant was standing above the deceased on “the steps” of a slope.  The first blow caused blood to splash or gush out and the applicant confirmed that the deceased was still breathing at the time he threw the third stone.  However, the applicant maintained that even without the blows he had delivered to the deceased’s head, the deceased would have died because of the two blows struck by the other men before he threw three stones at the deceased.

Grounds of appeal

22.  Mr Chandler advanced five grounds of appeal.

(1) and (2) Judge’s jurisdiction to change her mind after ruling that murder count should be substituted by wounding with intent and the evidence of causation

23.  In his first ground, Mr Chandler argued that the judge had erred in that: “having ruled that the count of murder should be withdrawn from the jury and a count of wounding with intent substituted, she accepted that she had jurisdiction to rehear the issue in circumstances where she had no jurisdiction thereby creating a material irregularity in the applicant’s trial”.

24.  The second ground, which is closely linked to the first, alleged that the judge had erred by reversing her ruling that the murder count should be substituted by a count of wounding with intent because there was “insufficient evidence for the jury to safely conclude that the deceased’s death was caused by a blow or blows administered during the course of the joint enterprise to which the applicant was allegedly a party as opposed to a blow or blow[s] struck prior to the joint enterprise coming into being”.  I shall deal separately with joint enterprise, the subject of the 4^th ground of appeal.

25.  The contention in the first of these grounds was that the judge had no jurisdiction, having made a ruling that the murder count should be substituted, to change her mind in the light of further legal argument.  Mr Chandler argued that the judge should never have accepted jurisdiction to hear further argument as the ruling the judge had made was final and because it caused injustice.  In this last regard, I should add that Mr Chandler was unable to identify any specific injustice other than to say that the decision had been communicated to the applicant and had resulted from the prosecution being given “a second bite of the cherry”.  He argued that the issues had been “determined and litigated to finality” and that “the criminal law recognized a presumption of finality”.

26.  I do not need to deal with many of the details of the application on which the judge had ruled.  It was made, apparently without warning, on 21 March 2006, when the jury were due to hear the final speeches of counsel.  Mr Chandler addressed the judge, in the jury’s absence, at the start of that day’s proceedings at 10.02 am by indicating that he wanted the judge to withdraw the murder count from the jury or, alternatively, to substitute murder with an amended count of wounding with intent.  He announced that “the submission is based on the lack of evidence to establish causation in this case”.

27.  The trial judge, having agreed to hear the application, was then taken by Mr Chandler through the applicant’s replies in his interviews in an attempt to demonstrate that the deceased had not been killed pursuant to any agreement on the part of the applicant although, as he put it, the deceased was “undoubtedly murdered” by the other two men.  He pointed out that the pathologist had been unable to identify a particular blow which had caused the death and, with that in mind, he had submitted to the judge:

“	… this jury, properly directed, applying whatever test you really want to apply, could not safely find that the wounds or the injuries that caused death were inflicted during the currency of the common enterprise.
	And the issue is not whether or not anything done by the accused person was a substantial cause of death. So far as causation is concerned, before the jury could convict this defendant of murder, they would have to be satisfied that the criminal standard, that, and applying the ‘but for’ test, that but for the assaults, the injuries that were inflicted during the currency of the common enterprise, as opposed to the very serious wounds which were inflicted before the common enterprise commenced, certainly so far as the accused [was] concerned, that but for those injuries, the … (deceased?) would have survived.
	On any view of the evidence, in my submission to your Ladyship, they just could not safely do that. There would be no basis for them to discount certainly the reasonable possibility that either or both, whether singly or in combination, the first two blows that were inflicted on the deceased, heavy blows, prior to the accused receiving a threat and prior to the accused reacting to the threat by throwing his stones, they could never be satisfied to the criminal standard, safely satisfied, that those earlier injuries had not been the essential cause of death.
	In fact, in my submission, on the evidence - and this is the way that I intend to put it to the jury - it is highly likely that after the man had been struck, heavily struck, by the other two men and rendered unconscious on the ground, that the process through to death was irreversible. That’s, on any view, a proper submission on the evidence which is available in the case.
	That they cannot safely be left to -- well, they can never be left to speculate, but there is just nothing in what the pathologist said upon which they could base a conclusion that anything, anything, which happened after the accused joined the enterprise was causative in the death of the deceased. And if that’s right, and in my submission it is right, the count of murder cannot be safely left for the jury’s consideration.” (Appeal bundle pp. 830-831)

28.  In reply, counsel for the prosecution referred the judge to the relevant passages in Hong Kong Archbold as to causation and also directed her attention to the evidence which supported the charge of murder.  The judge adjourned shortly afterwards to listen to a particular part of the audiotape of the pathologist’s evidence.  The effect of the prosecutor’s opposition to Mr Chandler’s submission, which continued after the audiotape had been heard, was that albeit the applicant may have physically joined in after two heavy blows had been struck to the back of the deceased’s head, the applicant would still have joint responsibility for the murder if he lent himself to the enterprise after it had begun and while the deceased was still alive.

29.  Following a reply from Mr Chandler, and after further assistance from the prosecutor at the judge’s request, the judge stated:

“	Yes, I am inclined to leave the charge as it is.”

30.  Mr Chandler seems to have gained further inspiration from this apparent conclusion and, in spite of the judge’s announcement, he went on to mount further argument.  This precipitated a change of mind on the judge’s part who, having again heard from prosecuting counsel, soon afterwards stated:

“	Yes. I have considered the questions that have been raised this morning and I rule that I am going to withdraw the charge of murder and ask that a charge of wounding, section 17, be placed before the jury instead.
	The main reason is the ambivalence of the medical evidence and the question of causation because, inevitably, I am going to have to ask the jury to speculate on that matter and that is not appropriate.” (Appeal bundle p. 845)

31.  The court then adjourned until the following morning when, for the first time, Mr John Reading SC appeared for the prosecution and invited the judge to reconsider her decision.  He was successful in that endeavour in that he persuaded the judge that murder should be left to the jury to decide.

32.  In my opinion, the judge was entitled, without causing prejudice to the fairness of the proceedings, to revisit her decision not to allow the prosecution to continue to proceed on the charge of murder.  There was a considerable body of evidence, from which the jury were entitled to draw an inference from the applicant’s admitted actions that, after he joined in the assault on the deceased, he contributed significantly to the death.  The applicant had admitted amongst other things that when he struck the deceased on the head with heavy stones, the deceased was still breathing and that blood splashed or gushed out when he did so.

33.  The forensic pathologist and the scientific officer had each given evidence which plainly supported the fact that the deceased was still alive when he was struck.  Dr Yu found a total of ten discernible injuries to the skull representing ten separate blows, although the condition of the deceased’s brain by the time of the post-mortem was such that he found it impossible to say which of the blows had caused death or whether all or some of blows in combination had done so.  Two of the fractures found by Dr Yu were on the forehead which may have been caused by the deceased falling forwards onto a hard object and eight blows were to the back of the head.  All of the blows were caused by major force by or against a hard blunt object such as a stone.  In the opinion of Dr Yu, the death was likely to have been a slow one.  For the sake of completion, I should perhaps also mention that he found that a stone had been placed in the deceased’s throat.  This was too deeply lodged to have been accidentally swallowed but Dr Yu ruled this out as a factor causing death.

34.  The scientific officer, who attended the scene, found a number of rocks with bloodstains on them and some of these also had hair on them.  The “steps”, described by the applicant as being above the ditch where the deceased was lying, are visible in photographs I have examined.  The applicant would, according to the scientific officer, have been standing about 2 metres above the deceased as he threw the stones at the deceased’s head.  Some of the blood-spatter patterns, consisting of very small dots of blood, showed that some of the blows must have been delivered with great force.

35.  When the judge changed her mind about withdrawing the murder count, she had plainly realised that her original ruling had been in error.  Justice is not one-sided so that a ruling in favour of the prosecution may just as readily be changed as one made in favour of the defence if no injustice is created.  I can envisage that there may be situations where a trial has to be restarted with a fresh jury, for example, when an erroneous ruling has allowed the jury to hear evidence which, on reflection, they should not have heard.  Here, the case for the defence was not prejudiced by the course taken by the judge and, in any event, the doctrine of issue estoppel has no application in criminal proceedings (see: DPP v Humphrys [1977] AC 1).

36.  The headnote in Humphrys (at page 2) reads that the court held:

“

… that the doctrine of issue estoppel had no place in English criminal law; that determination at a first trial of an issue in favour of the accused was no bar to the admission at a second trial of evidence given at the first trial directed to establishing perjury at the first trial even though that evidence, if accepted at the second trial, would lead to the inference that the accused was guilty of the offence of which he had been acquitted at the first trial; and that, accordingly, the trial judge had rightly admitted the evidence of the police officer and the respondent’s conviction should be restored …”

37.  The first ground fails.

38.  On the 2^nd ground, so far as causation is concerned, Mr Chandler’s argument at trial, repeated in these proceedings, was that there was no safe way of saying on the evidence whether or not the first blow to the deceased’s skull delivered by the fat man or the second delivered by the thin man may have been the blows which led to death.  It was, he submitted, an invitation to the jury to speculate by leaving it to them to decide if the applicant’s actions gave rise to any significant cause of death.  Mr Chandler emphasised that the applicant had described the deceased as lying wounded and unconscious and had said also that, before he threw the stones, the deceased’s brain was visible through a wound at the back of his head.  Furthermore, in the applicant’s mind, the deceased would have died whether or not he had joined in the attack.

39.  It has to be recognised, contrary to Mr Chandler’s contention, that homicide is sometimes described as the acceleration of death by unlawful means.  Reference is made in Archbold Hong Kong [2007] to this well-established expression of the law at paragraph 20-12 which reads:

“	… In R v Dyson [1908] 2 KB 454 at 457, Lord Alverstone CJ said:
	‘	The proper question to have been submitted to the jury was whether the prisoner accelerated the child’s death by the injuries which he inflicted in December 1907. For if he did the fact that the child was already suffering from meningitis from which it would in any event have died before long, would afford no answer to the charge of causing its death.’
	Thus, since every killing is an ‘acceleration of death’, it matters not that the victim was dying from a fatal disease or injury, (or even if he were under sentence of death): R v Chan Yuk-keung (supra). It matters not that the likelihood of death, if not hastened, is only a matter of days or even hours away.”

40.  In this case, there was an abundance of evidence from the applicant’s confessions, from the pathologist and from the scientific officer in combination to show that the deceased was alive, although not well, when the applicant deliberately delivered what he seems to have thought were three blows to the deceased’s skull with heavy stones.  When directing the jury on this aspect of the case, the judge said:

“	In respect of the contribution or substantial cause of death, the law is that before you can find this defendant guilty of murder, one of the matters about which you have to be sure is that the accused’s act in throwing stones at the deceased was a significant cause of the death of Shan Tung. Looking at the time after the first two blows were inflicted, there were eight more blows, according to the Forensic Pathologist, of which the defendant claims to have caused three. The evidence of the video interviews is important in this regard as also is the evidence of the Forensic Pathologist and the Scientific Evidence Officer.
	The prosecution does not have to prove that the accused’s act was the only cause of death; nor is it necessary for the prosecution to prove that it was the main cause of death. But the prosecution must prove, so that you are sure, that the act was one of the causes of the death of Shan Tung, and one of the causes that was a significant cause, not just a minimal cause. If you were to find that the accused’s act contributed in some trivial way to causing the death, the accused would have to be acquitted of murder. It is enough for the prosecution to prove that the act accelerated death. If the act brought forward the time of death, the law regards that act as a cause of death as long as the accused’s act contributed to that death in a more than trivial way. So although the two blows inflicted by the ‘Fat Guy’ and the ‘Thin Guy’ might have left him dying, if you are satisfied that the eight further blows hastened or accelerated death, and the defendant’s act was one of those acts, you can be satisfied that the cause is proved as a significant cause of death.
	What is meant by ‘minimal’ or ‘trivial’? We know that we are all going to die some time. Killing is just an acceleration of the death. The factor which produces a trivial acceleration of death is not the cause of the death. So if the prosecution establishes a cause of death which is only a trivial acceleration or a trivial contribution to the death, the prosecution has not proved that the accused committed an act which was a substantial cause of the death. That is a matter of fact for you to consider from the evidence.” (Appeal bundle pp. 28-29)

41.  In my opinion, the argument that the prosecution had failed to establish a case on causation was not made out and the judge’s directions on the topic as a whole were faultless.  The point, as Mr Chandler also argued in the court below, that there was a reasonable possibility that the two initial blows may have been sufficient to cause the death so that the prosecution were in no position to prove that “but for” the applicant throwing the three rocks at the deceased’s head, the deceased would not have died, ignored the fact that on the applicant’s own version, while his actions may not have been the sole or even the principal cause of death, there was overwhelming evidence from which an inference could be drawn that he had significantly contributed to the death by accelerating it.

42.  This ground fails.

(3) Whether manslaughter or wounding with intent were viable alternatives to murder

43.  In the 3^rd ground, Mr Chandler submitted that the judge had erred by leaving the case to the jury on the basis of murder alone.  He argued that manslaughter and wounding with intent were viable alternatives to murder on the evidence presented to the jury.  He pointed out that the judge had specifically directed the jury that if the requisite intention for murder had not been proved, the applicant was entitled to be acquitted.  If that were so, he submitted, then inevitably the jury should have been directed to consider manslaughter and, as this was not left, there was a danger that the jury had convicted of murder because they had been left with no alternative.  As to this, he also pointed out that the jury had convicted by a majority of five to two despite cogent and undisputed evidence that the applicant had thrown three heavy rocks at the deceased’s skull while he was still alive.  This, he submitted, might be indicative that at least two of the jurors may have concluded that the applicant’s actions formed no part of a joint enterprise with the other two men in regard to murder and needed to be considered in isolation which, in turn, should have resulted in the applicant’s conviction for wounding with intent.  If so, the defence of duress on this possible alternative, which was not available on the count of murder, should also, he suggested, have been left for the jury’s consideration.  This was despite Mr Chandler’s eventual opposition at trial to wounding with intent and duress being left to the jury in the summing up.

44.  Dealing first with the question of a manslaughter verdict being left for the jury to consider, in R v Coutts (above), the appellant faced a charge of murder where evidence was adduced which would have enabled a rational jury, if they accepted it, to convict him of manslaughter.  However, counsel on both sides persuaded the judge that it would not be right to leave the alternative and consequently no mention was made of manslaughter in the summing up.  Lord Bingham, in this appeal to the House of Lords, stated (at pp. 359-360):

“

[12]

In any criminal prosecution for a serious offence there is an important public interest in the outcome (see R v Fairbanks [1986] 1 WLR 1202 at 1206). The public interest is that, following a fairly conducted trial, defendants should be convicted of offences which they are proved to have committed and should not be convicted of offences which they are not proved to have committed. The interests of justice are not served if a defendant who has committed a lesser offence is either convicted of a greater offence, exposing him to greater punishment than his crime deserves, or acquitted altogether, enabling him to escape the measure of punishment which his crime deserves. The objective must be that defendants are neither over-convicted nor under-convicted, nor acquitted when they have committed a lesser offence of the type charged. The human instrument relied on to achieve this objective in cases of serious crime is of course the jury. But to achieve it in some cases the jury must be alerted to the options open to it. This is not ultimately the responsibility of the prosecutor, important though his role as a minister of justice undoubtedly is. Nor is it the responsibility of defence counsel, whose proper professional concern is to serve what he and his client judge to be the best interests of the client. It is the ultimate responsibility of the trial judge (see Von Starck v R [2000] 4 LRC 232 at 237, [2000] 1 WLR 1270 at 1275; Hunter v R [2003] UKPC 69 at [27], [2004] 2 LRC 719 at [27]).”

45.  The question arises, with these principles in mind, whether the evidence in the instant case gave rise, as Mr Chandler submitted, to an alternative of manslaughter.

46.  The judge gave model directions as to the ingredients which the prosecution had to prove in order to establish murder.  These included, of course, the intent to kill or to cause serious bodily harm “at the time of the act or acts which caused the death”.  Later in the summing up (page 57 of the appeal bundle), the judge directed the jury that if they were not satisfied that the applicant’s intention had been proved, it would be their duty to acquit.  Again, on the subject of intention, the judge went on to say:

“

…The burden of proving the charge so that you are sure about his guilt remains with the prosecution. Any doubt that you might have as to whether the accused had an intent to kill or cause grievous bodily harm, any doubt you might have about whether or not his actions were a substantial, if not the only, cause of death would mean that the prosecution has not made you sure of the guilt of the accused and it would be your duty as jurors to acquit.” (Appeal bundle p. 59)

47.  Whilst intent was a necessary ingredient for murder, it has to be said that at no stage was there any real issue about it.  At no stage in his interviews had the applicant ever raised a suggestion that he had not formed such an intention.  On the contrary, he had specifically told the police:

“	They told me to strike (him), he had not died yet, needed to strike him to death directly.” (Appeal bundle p. 495)

48.  This, taken with all the other circumstances involved in his throwing heavy stones or rocks at the applicant’s head, in my opinion, left the jury with only one real issue to decide, namely, causation with which I have dealt already although I shall also deal with joint enterprise in due course.  I have indicated that, in my opinion, impeccable directions were given about causation.  I consider also that the judge had no obligation to leave a defence of manslaughter by reason of an unlawful act, lacking the intent required for murder, which would have been so tenuous that no reasonable jury could have accepted it.  In Alexander Von Starck v R [2000] 1 WLR 1270 at 1275, Lord Clyde said:

“

The function and responsibility of the judge is greater and more onerous than the function and the responsibility of the counsel appearing for the prosecution and for the defence in a criminal trial. In particular counsel for a defendant may choose to present his case to the jury in the way which he considers best serves the interest of his client. The judge is required to put to the jury for their consideration in a fair and balanced manner the respective contentions which have been presented. But his responsibility does not end there. It is his responsibility not only to see that the trial is conducted with all due regard to the principle of fairness, but to place before the jury all the possible conclusions which may be open to them on the evidence which has been presented in the trial whether or not they have all been canvassed by either of the parties in their submissions. It is the duty of the judge to secure that the overall interests of justice are served in the resolution of the matter and that the jury is enabled to reach a sound conclusion on the facts in light of a complete understanding of the law applicable to them. If the evidence is wholly incredible, or so tenuous or uncertain that no reasonable jury could reasonably accept it, then of course the judge is entitled to put it aside. The threshold of credibility in this context is, as was recognised in Xavier v. The State (unreported), 17 December 1998; Appeal No. 59 of 1997 a low one, and, as was also recognised in that case, it would only cause unnecessary confusion to leave to the jury a possibility which can be seen beyond reasonable doubt to be without substance. But if there is evidence on which a jury could reasonably come to a particular conclusion then there can be few circumstances, if any, in which the judge has no duty to put the possibility before the jury. For tactical reasons counsel for a defendant may not wish to enlarge upon, or even to mention, a possible conclusion which the jury would be entitled on the evidence to reach, in the fear that what he might see as a compromise conclusion would detract from a more stark choice between a conviction on a serious charge and an acquittal. But if there is evidence to support such a compromise verdict it is the duty of the judge to explain it to the jury and leave the choice to them. In Xavier v. The State the defence at trial was one of alibi. But it was observed by Lord Lloyd of Berwick in that case that, ‘If accident was open on the evidence, then the judge ought to have left the jury with the alternative of manslaughter.’ In the present case the earlier statements together with their qualifications amply justified a conclusion of manslaughter and that alternative should have been left to the jury.” [Emphasis added.]

49.  Accordingly, in my view, the judge correctly decided that this was a case of murder or nothing.  This is subject only to the further question touched upon in this ground, but more specifically dealt with in the 4^th ground, that ‘joint enterprise’ was not established and that, in such circumstances, wounding with intent and the defence of duress ought to have been left.

(4) The directions on joint enterprise

50.  It was submitted in the 4^th ground of appeal that the directions given to the jury on the approach to be taken to joint enterprise were likely to have confused the jury in that the judge:

“

… failed to properly distinguish between a killing caused by blows administered by the applicant and for which he was solely responsible as a principal and a killing caused by blows administered by the applicant or either or both of the other two men during the currency of a joint enterprise to which the applicant was a party. The judge did not make it clear to the jury that before they could convict the applicant of murder on the basis that he had participated in a joint enterprise they would have to be satisfied that the deceased’s death was caused by a blow or combination of blows administered during the course of the joint enterprise as opposed to blows administered by the other two men prior to the time that the applicant allegedly joined the joint enterprise.”

51.  This ground to some extent placed reliance, once again, on the causation argument with which I have dealt already.

52.  The directions on this issue which the judge gave were as follows:

“	There has been reference to the fact that this was a joint enterprise, that after the first two blows, on being told to do so, the defendant joined in with the other two on a joint enterprise to kill Shan Tung. Generally, there are a number of ways in which someone can intentionally assist or encourage the commission of a crime. If a person acts together with the actual perpetrator at the time of the offence as part of a joint plan to commit the offence, he is guilty of the offence. He might be convicted as a party to a crime if he is present when it is committed, and although he is not the actual perpetrator, he intentionally assists the perpetrator to commit the offence or, with the intention of assisting, he is near enough to assist if the need arises and the perpetrator knows that he is there to help. Simply being present at the scene of the crime is not enough. If somebody happened on a fight and they did not do anything to encourage an attack or to assist in the fight, you are not obliged in law to assist the victim and if you just stand by, that does not make you a party to the attack or the assault.
	In another category is the person who intentionally encourages another person to go out and commit an offence. He is a party to that offence if the other person does go out and commit it. Similarly, the person who supplies the instrument for a crime, like a gun, or ammunition, or anything essential to the commission of a crime, including information, is assisting in the commission of the crime, and if he does that knowingly, or with intent to assist, then he is guilty of the crime committed as well. However, if the actual perpetrator goes outside the scope of the agreed plan or of the act which is encouraged, or the purpose for which the weapon was supplied and does something which the other person did not contemplate as a real possibility when he agreed to commit the crime or when he encouraged the crime, then that other person is not responsible for the unanticipated and unauthorised act. So that is just a general number of situations that could arise in relation to the commission of a crime.
	Anyone who intentionally assists or encourages the commission of an offence is liable to be convicted of that offence no less than the person who actually strikes the blow or uses the gun. The prosecution case is that this defendant committed this offence jointly with the unknown men, the ‘Fat Guy’ and the ‘Thin Guy’. Where a criminal offence is committed by two or more persons, each of them may play a different part, but if they are acting together as part of a joint plan or agreement to commit it, they are each guilty.
	The words ‘plan’ and ‘agreement’ do not mean that there has to be any formality about it. It is not suggested here that it was a longstanding plan, or that it had been discussed at length by the ‘Thin Man’ and the ‘Fat Guy’ and this defendant. An agreement to commit an offence can arise on the spur of the moment which is what is suggested here. No words need be said at all, though in this case, the defendant says he was told to join in the stoning. The agreement can be made with a nod and a wink, a knowing look or a gesture, which can be inferred from the behaviour of the parties. You are being asked to infer from the behaviour of the defendant, in the circumstances that he described, that he joined in, after the first two blows, he joined in the joint enterprise with the ‘Fat Guy’ and the ‘Thin Man’ to kill or cause serious bodily harm to Shan Tung.
	In this case, the evidence, if you accept the video interview information is correct, was that the two men began the attack on Shan Tung and then told the defendant to join in after the first two blows, making it clear that the aim was to kill or cause serious bodily harm, that the defendant joined in by throwing three stones, each about 7 to 8 catties in weight. You are asked to draw the inference that the defendant did so knowing what the intention of the other two men was, that he had joined the plan to kill or cause serious bodily harm regardless. Even though the plan was not a longstanding plan, the plan would have been clear to the defendant and he joined in intending to kill or cause serious bodily harm.
	The essence of joint responsibility for a criminal offence is that each defendant shared a common intention to commit the offence and played his part in it, however great or small that part might be, so as to achieve the aim. So you should approach the case in this way: if, looking at the case of the defendant, you are sure that he did an act or acts as part of a joint plan with the ‘Fat Guy’ and the ‘Thin Man’ to commit it, he is guilty. You should ask yourself a simple question, were they in it together? That is something you have to discern from the admissions in the video interview.” (Appeal bundle pp. 29-32)

53.  Later, the judge said:

“

It is not suggested that the first two blows were any part of his actions. The evidence that we have is that - if you accept that the evidence is correct - is that that was a complete surprise to him; he did not know the immediate cause, although he had been talking about quarrelling preceding that, but he did not know what the immediate cause of the first blow was. But he then saw the ‘Thin Man’ take the rock and strike the second blow. At that point he is told to join in.

This is where I have suggested that the intention to join in the joint enterprise does not have to be a long pre-planned or premeditated intention; it can be formed on the spur of the moment. You have to decide whether or not, on the spur of the moment, he decided, ‘Yes, I am going to join in willingly into this activity and take part in the killing of the deceased,’ and you have to be sure that he intended to kill or cause grievous bodily harm at the time he did that.” (Appeal bundle pp. 55-56)

54.  In my opinion, the judge had given accurate directions on the law, properly tailored to the circumstances of this case, although I should perhaps add that whether the applicant decided to “join in willingly” or not was beside the point.  The way the judge left this was somewhat generous to the applicant as the jury had rightly been told in earlier directions during the summing up that duress was not a defence to murder.  There was, in my view, no sensible basis for leaving to the jury the alternative of a wounding with intent which could be said to fall outside the scope of a joint enterprise with the other two men.

55.  This ground fails.

(5) The defence case

56.  The 5^th ground amounted to a complaint that the judge failed to put the case for the defence fairly to the jury in that:

“

… she failed to adequately explain to the jury how, if at all, the fact that the applicant was threatened by the ‘fat man’ impacted upon the issue as to whether or not he had joined the joint enterprise, that is to say whether or not he shared an intention with the other two men to kill or cause grevious bodily harm. Further her direction on how, if at all, the applicant’s physical deformity may have impacted upon the issue as to whether or not he possessed an ability to pick up large stones was not fairly balanced.”

57.  It is unnecessary to go into many of the details which touch upon the two issues raised by this ground.  It is apparent, as I have indicated when dealing with the 3^rd ground of appeal, that there was no evidential foundation for suggesting that the applicant did not intend to cause grievous bodily harm when he acted as he did.  He may not have wished to act in that way or have desired the result that almost inevitably was achieved when stones, which would perhaps be better described as rocks, were used by him to strike the deceased’s head, but that is, with respect, to muddle intent with motive.  Nevertheless, in dealing with the case for the defence, and contrasting it with the stance taken by the prosecution, the judge provided an example of how an inference might be drawn when she said:

“

The prosecution say here that the only reasonable inference to draw from the facts is that the accused had an intention to kill or to cause serious bodily harm … . On the other hand, the defence says that that might be one inference which could be drawn, but it is not the only reasonable inference to draw and that another inference that might be drawn is that it was just a charade to convince the ‘Thin Man’ and the ‘Fat Guy’ that he was on their side and was not going to betray them. So there will be a number of occasions when you are required to make a decision as to which inference is reasonable.” (Appeal bundle p.33)

58.  Later, the judge went on to remind the jury of those parts of the interviews where the applicant had made clear his concern that he regarded himself as being in danger if he had failed to carry out the instruction to hit the deceased with stones.

59.  I am satisfied that the summing up provided a balanced presentation of the applicant’s case.  In reality, the prosecution was being put to proof of its case as the evidence, as I have indicated, gave the applicant no opening for a defence to murder once causation was established to the satisfaction of the jury.

60.  On the second issue raised by this ground, I have not thus far referred to the deformity to the applicant’s hands.  This was described by the judge in the summing up, when dealing with the evidence given by the forensic pathologist, as follows:

“

The other matter that the Forensic Pathologist spoke of was his examination of the defendant. He confirmed the amputations of the fingers. In his view, his testing showed a moderate degree of weakness in the gripping power, but that this man was strong enough to inflict the head injury which was sustained by the deceased, despite that weakness. That is a matter for you to consider. His expertise as to checking the capacity to grip was challenged by the defence. It is a matter on which Dr Yu can give evidence. He gives evidence, opinion evidence; it is a matter for you to decide whether to accept that evidence or not, in showing that it was possible for him to do this lifting. You have seen the defendant’s hands. I point out that the fingers are not fully amputated; the fingers are effectively half-fingers where they have been amputated. So there is a rim of hand there still. Also he did not indicate himself, in the video interviews, that he had any difficulty in lifting stones; nor did he indicate on the second video interview any difficulty in actually going along the path which was quite difficult to access. He did not indicate he had any difficulty in doing that. Nevertheless, it is a matter for you to decide whether or not he was able to use his hands in the way that he must have been able to use them, according to the prosecution’s case.” (Appeal bundle pp. 42-43)

61.  This evidence is self-explanatory and there is nothing in the suggestion that the applicant’s deformity may have rendered it difficult for him to pick up the heavy rocks which he had himself admitted picking up and throwing whilst standing above the deceased.

Conclusion

62.  I am satisfied that the conviction for murder, in the light of all the submissions, was neither unsafe nor unsatisfactory.  Having regard to the arguments advanced on the first three grounds I would grant leave but, treating the hearing as the appeal, I would dismiss the appeal.

63.  Before leaving this case, I feel I should add that when, ultimately, the applicant’s sentence is reviewed by the Long-Term Prison Sentences Review Board, it should be remembered that, while duress is no defence to murder (and having regard to the decision in R v Shepherd [1988] 86 Cr App R 47 duress would probably have provided no defence to the applicant even if it had been because he had voluntarily joined a group of men with criminal objectives using coercive methods), there is nothing on the facts of this case to gainsay the applicant’s version of events that he acted out of fear and out of a desire to save himself.  These were unusual circumstances and, although the offence remains a serious one, I would respectfully recommend that this factor should be borne in mind when a determination has to be made about the timing of the applicant’s release.

Stock JA:

64.  I agree that this appeal should be dismissed but the route by which which I arrive at that decision is different from the reasoning of my lords, with whose reasoning on the issue of manslaughter I respectfully disagree.

65.  Everyone at trial and upon presentation of this appeal proceeded upon the basis that in order to convict of murder, it was necessary to prove that the applicant himself intended to kill or cause grevious bodily harm.  The question of his foresight of the intention of the others was ignored.  Although the jury was given a standard direction about joint enterprise, the jury was, as to necessary intent, told time and again that what had to be proved before a verdict of guilty of murder was permissible was that the applicant himself at the time of his admitted participation in an assault on the victim harboured an intention to kill or cause grevious bodily harm.  So for example they were told in the summing up:

“	… you have to be sure that he intended to kill or cause grievous bodily harm at the time he [joined in the assault].”[1]

66.  So too when counsel addressed the court as to the suggestion that manslaughter be left to the jury, they did so on the basis that the mens rea required in this case to constitute the applicant guilty of murder was his own intent to kill or to cause grevious bodily harm.  And my lords have concluded, in that context, that there was no evidential foundation for the suggestion that the applicant himself lacked the requisite intent.

67.  In that my lords say that there was no basis upon which lack of this applicant’s intent to cause serious harm should have been left to the jury as the basis for a manslaughter alternative, it is the stark fact that at the trial in this case the issue of the intent of this applicant was placed by the judge before the jury as a live issue; that is to say, not merely an ingredient formally to be proved, but as a key issue raised by the evidence.  The jury was invited not only by counsel but by the judge to consider whether the only inference to be drawn was that the applicant himself intended to kill or cause serious harm or whether, on the other hand, there might be something in the suggestion constructed by counsel from various features of the evidence that there was no such intention.  That course having been adopted, logic would dictate that, if one ignores parasitic liability for mens rea contemplated though not shared – a matter to which I must later return – manslaughter ought to have been left as an alternative verdict available to the jury.

68.  Having been invited to consider the defence of lack of requisite intent on the part of the applicant himself, the jury was told by the judge that if they extended to the applicant the benefit of the doubt on that matter, then the consequence was a requirement to acquit.  On the basis upon which the question of intent was left to the jury, namely, that what mattered was the applicant’s own intent, the logic of that choice was, with respect, flawed.  It was admitted that the applicant participated in the attack and for present purposes we can assume that causation was proved.  Yet it was denied that he intended to cause serious harm.  If it was the law that the prosecution had to prove that the applicant himself intended to kill or cause serious bodily harm but the jury found that, although the applicant had assaulted the deceased and thereby caused death but may not have had the necessary intent, what other verdict than manslaughter, I ask rhetorically, could be the proper verdict in law?

69.  But my lords suggest that although intent on the part of the applicant himself appears to have been left as a live issue, it should not have been, for any suggestion that he lacked intent conflicts with what he said upon interview; that he himself had not said that he did not intend to kill or cause serious harm and that there was no real issue about his own intent; and they refer to Coutts and Starck for the warning not to leave alternatives which have no evidential foundation.

70.  In answer to this I would say as follows: that the threshold for finding a defence from evidence is low; that great care must be taken not to confuse lack of plausibility with lack of evidential foundation; and that evidential foundation does not have to come from the lips of the defendant – indeed it may contradict what has come from the lips of a defendant – but may be drawn from any quarter of the evidence.

71.  The question of the applicant’s own intent was not merely addressed as an ingredient that the prosecution had formally to prove though not in reality in issue: if one reads the speeches of counsel, the submissions made to the judge, and the judge’s summing up, it is clear beyond peradventure that each of those participants in the process treated it as a live issue and as if there were a sufficient evidential footing for it to be left.  It was accepted by the court below that, howsoever the applicant phrased himself in his interviews, there was an evidential foundation from the evidence as a whole from which counsel could properly construct the basis of a defence of lack of personal intent, however implausible that defence might be, and I think that one should be slow, particularly in a homicide case, to overturn such an acceptance by the first instance court in a defendant’s favour and at his invitation.

72.  There are some cases in which an attempt by counsel to divine a defence from the facts as a whole is an exercise in the purely fanciful, because there is not a semblance of tangible evidence from which such a defence can be divined.  I will give two examples:

(1)

In R v Critchley [1982] Crim L R 524 the appellant, a drug taker, was admitted to hospital and shortly after his admission a man was found in his flat who had been battered to death.  The appellant, charged with murder, denied the killing but said that he had no recollection of what happened.  In his final speech, counsel suggested that the appellant may have acted in self-defence.  But there was simply no evidence from which that suggestion could be constructed and the defence was not left.

(2)

In Hoang Hai Viet v The Queen [1997] HKLRD 203, the appellant was a detainee at the High Island Detention Centre.  The prosecution case was that he and a number of others stabbed another detainee, and then chased him, surrounded him and stabbed him again, this resulting in the death of the victim of the attack; wherefore the appellant was charged with murder.  The appellant’s case was that he had not been present at the scene of the first attack and at the time of the second attack he was a mere onlooker.  It was submitted that the judge ought to have left the option of a verdict of manslaughter to the jury.  The suggestion was made as a result of a question from the jury, not from any evidential construction; and the Privy Council said that the option did not arise because there was no evidential basis for it.

73.  The present case is not a case of that kind.  In the present case, the evidence adduced included statements made at some length by this applicant. In them he volunteered the information, previously unknown to the police, that there had been a killing to which he was a party.  He said, and it was not contested, that the deceased was his friend; that he had not instigated an attack, but had been forced to join it, which he did most reluctantly, that he stood afar at the time of his active participation and that, given what he perceived of the victim’s condition at the time he threw the stones, he did not believe that his participation would make any difference at all to the consequences to the deceased; and that he, the applicant did not want to kill the deceased.  In addition there was evidence about a deformity of the applicant’s hands the suggested significance of which was that he could wield but limited force.

74.  Counsel for the applicant submitted to the trial judge that the effect of these features of the evidence left open the possibility that the applicant had at the time of the assaults been engaged in a charade, directing stones, it is true, at the applicant, but not intending himself to cause serious bodily injury.  It was on this basis that he invited the judge to leave manslaughter open to the jury as an alternative to an outright acquittal or a conviction for the offence of murder.

75.  Now, it is no doubt the case that there was much to gainsay the suggestion that there may have been a lack of intent – and my lords have pointed too much that gainsays it – and in terms of hoping that that interpretation of the evidence might be accepted by the jury, the cards were heavily stacked against the defendant.  But that is not to the point, for the point is that that was the evidential foundation put forward by the defence for the interpretation of events.  It was not some alternative defence – an invisible defence[2] for the judge to leave when the parties do not do so – as in cases such as Starck and Coutts.  The issue of causation aside, the applicant’s lack of intent was the defence.

76.  At no stage was it suggested, whether by counsel for the prosecution or by the judge, that that construction as to possible lack of intention, was not available on the evidence.  Whether it was going to be accepted by the jury is altogether a different matter.  In the course of submissions to the judge, prosecuting counsel seemed openly to accept that manslaughter was available as a defence on the evidence.[3] In deciding not to leave the alternative to the jury, the judge never suggested that her decision was based on a conclusion that there was no evidential basis for it.  In his closing address to the jury, defence counsel repeatedly proposed that the intent sufficient for murder was a matter of doubt, emphasizing in this context that the applicant and the deceased had no quarrel, that the applicant had weak hands, that he was in fear and had good reason to pretend that he was participating with intent whereas he was not.  ‘It’s a question,’ he said ‘of what was in fact in his mind.  He knew the man was going to die. … You may think it patently obvious what he was doing.  He threw three rocks not with the intention of causing his friend serious injury, or killing his friend, but to avoid ... a situation where he patently would have been killed himself.’[4]  He defined this as the central question in the case.

77.  In her summing-up, the judge emphasised that the defence was twofold: first, whether there had been an intention to kill or cause serious bodily harm and, second, whether causation was proved.[5]  She suggested to the jury that they might consider that in his interviews, the applicant had attempted to distance himself from what was done by the other two men[6] and she reminded the jury that in his interviews the applicant had said that at the time he picked up a stone the victim was lying down, apparently unconscious and that because he, the applicant, was in danger “so without consideration, I struck [the deceased] with a stone.”  This, she said, as well as other answers, was “related to the question of intention.”[7]  She told the jury that the prosecution case was that the only inference to draw from the facts was that the accused had an intention to kill to cause serious bodily harm.  Yet, “on the other hand, the defence says that might be one inference which could be drawn, but it is not the only inference to draw and that another inference that might be drawn is that it was just a charade to convince [the others] that he was on their side and was not going to betray them.”[8]

78.  There can be no question therefore but that the case was conducted on the footing that a defence of lack of intent had been raised and that there was some evidential basis for raising it, though hardly solid.

79.  So I cannot agree with my lords that there was no basis for leaving to the jury as a live issue the question of the applicant’s personal intent.  And the reason I have, despite my ultimate conclusion, dealt with the point at some length is because I think, as a matter of principle, that it is vital to draw a distinction between, on the one hand, a defence that is raised but is palpably weak, and, on the other, a defence that is not raised.  A defence properly raised must be left to the jury for its decision, even if the defence appears to be laughable: see R v Marr (1990) 90 Cr App R 154.

80.  However, what no-one thus far has addressed is the fact that in a case of joint enterprise the offence of murder may be established even if the participant does not himself nurture the requisite intent but joins the enterprise foreseeing that another may carry out the act with the requisite mens rea and that other does so.  See, for example, R v Powell and Daniels; R v English[9].  ‘It is not part of the law of joint enterprise that a secondary party, B, must share the mens rea of principal offender, A’: R v Day.[10]  Thus if A and B agree to do an unlawful act B will be guilty of murder if B ‘intends or forsees that A will or may do [the] act with intent to cause GBH … and death results.’[11]

81.  It is by reason of that concept that in this case there was no evidential footing for a defence of manslaughter.

82.  It was common ground that the applicant joined in the actus reus of the offence, which was the assault upon the deceased.  If a sufficient causal connection between the acts committed after he had joined that assault and death were established, it would matter not that he harboured no intent to kill or cause grevious bodily harm provided that nonetheless he joined in the act foreseeing that such was or might be the intent of the others.  It would in such a circumstance not avail him to say he was engaged in a charade, since that goes only to the question of his own intention as to consequence.  His act in partaking in the assault was not a pretence; it was, on his own case and on any view of the testimony, deliberate.

83.  There could have been no basis in this case for a contention that the applicant did not contemplate in the acts of the others an intent to kill or cause serious bodily harm.  The whole basis for his own conduct was, according to him and the case presented for him, that he feared that the same intent, openly announced by the others and obvious from their conduct in relation to the deceased, would be visited upon him if he did not join.

84.  How then does this leave the case?  What happened is that the judge left the question of intent on a basis that was favourable to the applicant.  It was favourable, not on the footing put by my lords, that there was no live issue as to his own intent; but favourable on the basis that even if the jury had been minded to the view that the applicant had not himself harboured the requisite intent, they should have been invited to consider the alternative basis of his contemplation of the intent harboured by the others.  That alternative basis was an impossible hurdle for the applicant to overcome.  It is that alternative basis that was not a live issue.  Had the jury been directed on that alternative, there could, subject only to the issue of causation, have been only one answer, which was guilty of murder and it is for that reason that I agree with the result proposed by my lords.

Suffiad J:

85.  I have had the benefit of reading both the judgments of the Vice-President and Stock JA in draft.

86.  I am in full agreement with the Vice-President and would also dismiss this appeal for the reasons given by him.

87.  Whether or not the issue of manslaughter is to be left to the jury as an alternative count depends on whether there is any evidential basis for so doing.

88.  The relevant evidence which came from the applicant told by him to the police in interview under caution was as follows :

“	432.	I then lift a big stone on the hill and struck (it) downwards, striking him [the deceased] 3 times.
		…
	833.	He [the Fat Guy] said, ‘Do you want to betray us?’
		…
	835.	He then told us to follow (him) to hit [the deceased].
	837.	At that time, I heard them two say I didn’t hit.  I felt that I, at that time, I thought, I was also in danger, so without consideration, I struck [the deceased] with a stone.
	839.	I then lifted up 3 stones from a-above and threw (them) downwards.  He died just down below there, I just---
	841.	Probably (I) had struck (him) 3 times, anyway I can’t remember clearly.
		…
	948.	They told me to strike [the deceased], he had not died yet, needed to strike him to death directly.
	952.	When I threw the 3rd piece of stone, it seemed that he ... it seemed that (he) had not died, had not died yet, it seemed.  However, they asked me to strike (him) ... After striking (him) several times, it seemed he had no breathing at all.”

89.  From what was said by the applicant to the police stated above, it is clear that the applicant never engaged in any charade nor did the applicant mention anything about a charade.

90.  That suggestion of it being a charade directing stones at the deceased but not intending himself to cause serious bodily injury came from defence counsel’s submission.  There was no evidential basis for it.

91.  While it is true that the applicant did say that he did not want to kill the deceased, that only goes to motive and not intent.

92.  Can there be any doubt in law as to his intent based on what the applicant said as to what he did to the deceased.

93.  The judge in her Summing Up had to direct the jury on intent since that is an ingredient of the offence of Murder.  It was also left to the jury for them to come to a decision on the issue of joint enterprise.  Because the judge had directed them on intent, it does not follow that there was an evidential basis for leaving the alternative count of manslaughter to the jury.

94.  For these reasons, I agree with the judgment of the Vice-President that although leave should be given, treating the hearing as the appeal, this appeal ought to be dismissed.

Stuart-Moore, VP :

95.  The appeal is dismissed.