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Judgment
Title: | Director of Public Prosecutions -v- Dekker |
Neutral Citation: | [2015] IESC 107 |
Supreme Court Record Number: | 336/2013 |
Central Criminal Court Record Number: | CC0033/12 |
Date of Delivery: | 16/06/2015 |
Court: | Supreme Court |
Composition of Court: | Denham C.J., Hardiman J., O'Donnell Donal J., MacMenamin J., Dunne J. |
Judgment by: | Dunne J. |
Status: | Approved |
Result: | Appeal allowed |
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THE SUPREME COURT
[Appeal No. 336/2013]
Bill No. CC0033/12
Denham C.J.
Hardiman J.
O'Donnell J.
MacMenamin J.
Dunne J.
IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 23 CRIMINAL
PROCEDURE ACT 2010
BETWEEN
THE PEOPLE (AT THE SUIT OF THE
DIRECTOR OF PUBLIC PROSECUTIONS) PROSECUTION AUTHORITY
/APPELLANT ACCUSED
Judgment of Ms. Justice Elizabeth Dunne delivered the 16th day of June, 2015
This is an appeal from an order of the High Court sitting as the Central Criminal Court finding the accused “not guilty by direction of the trial judge”. The appeal was brought pursuant to s. 23 of the Criminal Procedure Act 2010 which provided for the first time an appeal “with prejudice” from an acquittal by direction of the trial judge to the Supreme Court on a question of law. Section 23 of the 2010 Act provides, inter alia, as follows:
“(1) Where on or after the commencement of this section, a person is tried on indictment and acquitted of an offence, the Director, if he or she is the prosecuting authority in the trial, or the Attorney General as may be appropriate, may, subject to subsection (3) and section 24, appeal the acquittal in respect of the offence concerned on a question of law to the Supreme Court.
(2) Where on or after the commencement of this section, a person’s conviction of an offence on indictment is quashed on appeal by the Court of Criminal Appeal and that Court makes no order for the re-trial of the person in respect of the offence, the Director, if he or she is the prosecuting authority in the trial, or the Attorney General as may be appropriate, may, subject to subsection (3) and section 24, appeal the decision of the Court of Criminal Appeal not to order a re-trial of the offence concerned on a question of law to the Supreme Court.
(3) An appeal under this section shall lie only where -
(a) a ruling was made by a court during the course of a trial referred to in subsection (1) or the hearing of an appeal referred to in subsection (2), as the case may be, which erroneously excluded compelling evidence, or
(b) a direction was given by a court during the course of a trial referred to in subsection (1), directing the jury in the trial to find the person not guilty where -
Section 23 goes on to provide as follows:
It can be seen therefore that an appeal now lies from an acquittal by direction of the trial judge to the Supreme Court on a question of law. The question of law raised in this appeal is as follows:
“Was the Central Criminal Court correct in ruling that the prosecution case taken at its highest was such that a properly directed jury could not properly convict the accused of murder of the deceased on the grounds that he was an accessory?”
Background
Daniel McAnaspie was a young person aged seventeen years and was in the care of the HSE. On the evening of the 25th February, 2010, he was allowed out to visit with friends by his carers but he failed to return to his carers. He was last seen alive at approximately 4am on the morning of the 26th February, 2010. Unfortunately, his remains were found on the 13th May, 2010. Ultimately, the accused in this appeal and one Trevor Noone, the last people to be seen with Daniel McAnaspie, were charged with his murder.
The notice of appeal
The notice of appeal seeks the following determination and orders:
The grounds relied on in the notice of appeal are as follows:
The notice of appeal summarised the principal evidence against the accused as follows:
“(1) Daniel McAnaspie, the deceased, was seventeen years of age (date of birth 13th November, 1992) and in the care of the HSE. He was last seen alive at approximately 4am on the 26th February, 2010 outside a house at Whitestown Avenue Blanchardstown in the company of two men, the accused, Richard Dekker, and another man, Trevor Noone. He had been allowed out to visit with friends by his carers on the previous evening but failed to keep an appointment to return to their care.
(2) His failure to return was reported to An Garda Síochána and a missing person investigation began. The accused gave a witness statement to the Gardaí on the 3rd March, 2010 and further was interviewed by the Gardaí at his home on the 7th March, 2010. On both occasions he lied and told Gardaí that he had left Daniel McAnaspie, the deceased, on Whitestown Avenue on the night of his disappearance.
(3) On the 13th May, 2010, a farmer, David Morton found human remains in a deep ditch on his land at Rathfeigh, Gilliamstown, County Meath approximately 30 kilometres away from Blanchardstown. The remains were later identified using DNA as being that of the deceased. The post-mortem of his badly decomposed body concluded that death was caused by ‘[p]enetrating and perforating sharp force traumata of internal organs (heart, left lung, right lung, oesophagus, trachea, stomach)’. Dr. Jaber, the pathologist, was shown part of a garden shears recovered by the Gardaí and stated that the injuries inflicted to the deceased could be compatible in configuration with injuries that would be caused by such a weapon.
(4) The accused was arrested, detained and interviewed on the 24th and 25th May, 2010. In the first six interviews referred to above, insofar as the accused made any response there were denials of involvement in the murder.
(5) In the last interview which began at 5.50am on the 25th May, 2010, he was given a copy of the memorandum of interview with Trevor Noone (the co-accused of the accused) in which Trevor Noone had said that the accused had carried out the murder in his presence. Having read this, there was a change in attitude by the accused and he gave an account in which he sought to put the entire blame for the murder on Trevor Noone. The prosecution case was that in the course of this account he made admissions from which a case that he was an accessory to the murder was made out. These are as follows:
(a) He knew that Trevor Noone wanted to give the deceased ‘a hiding’ over fighting with his uncle or cousin.
(b) That the purpose of going down to the Tolka (the crime scene, which was an isolated park, approximately 9 minutes walk away) was to enable Trevor Noone to give this ‘hiding’ to the deceased.
(c) He agreed to this (by his actions) in going ‘down the Tolka’ with the deceased and Noone. This facilitated Noone’s actions.
(d) That a suggestion that they were all going off to Corduff to fight anyone was a ruse to get the deceased to go with them to the Tolka Valley Park.
(e) That he knew that Trevor Noone had brought the half shears with him and had got it out of his (the accused’s) front garden. He maintains that he did not know Trevor Noone was going to kill him. That he ‘thought that he was just going to give him a few digs’.
(f) He goes on to say that ‘I know he had shears and all but he’d carry anything around, ya know, locked drunk he’d carry anything around’.
(g) The accused identified the murder weapon as a half shears and describes how Trevor Noone killed the deceased in his presence with it.
(6) The video of interview of the final interview was played in court before the jury, further there was a transcript of the relevant portion of the interview provided to the jury.
(7) Subsequent to his release from detention the accused showed the locus to the Gardaí from where the half shears subsequently shown to the pathologist was recovered as well as a shoe which matched and made up a pair with another one recovered near the body of the deceased.”
The notice of appeal concluded by setting out the details of the course of the trial before the Central Criminal Court. The accused and Trevor Noone were arraigned on the 17th June, 2013, both accused pleaded not guilty and the trial ran from the 18th June to the 2nd July, 2013 on which date the learned trial judge, Butler J., directed the jury to acquit the accused. The jury was discharged in respect of the trial of the co-accused and a new trial date was fixed for his trial.
The application for a direction
No issue arises in the course of this appeal as to the principles applicable to an application for a direction. The principles of law applicable to such an application are set out in the case of DPP v. Martin Leacy (Unreported, Court of Criminal Appeal, 3rd July, 2002) which cited with approval the principles identified in R. v. Galbraith [1981] 1 W.L.R. 1039. The application for a direction made on behalf of the accused relied on s. 4 of the Criminal Justice Act 1964 (the 1964 Act). It was contended on behalf of the accused that for the accused to be convicted of murder as an accessory, it was necessary to prove that the accused had the necessary intent required under s. 4 of the 1964 Act, namely, an intention to kill or cause serious injury. Alternatively, it was submitted that if that submission was incorrect, it was necessary to show that the accused as an accessory had knowledge of intent on the part of the principal. Counsel on behalf of the accused referred to the seventh transcript of interview with the accused in which he accepted that he assisted Mr. Noone to get the deceased, Daniel McAnaspie, down to the Tolka. In the course of that transcript the accused said (at p. 8):
“I knew, like Trevor was already after saying to me right we’ll bring him down the Tolka and Trevor was gonna give him a hiding over fighting with his family, even though he already knocked him out . . ..”
Later in the course of the interview he was asked by the Garda interviewing him:
“Would you say that when he was going down it wasn’t to give him a straightener, it was to go down to kill him?
RD: I didn’t know that. I thought that he was just going to give him a couple of digs. That was it, you know I men (sic). I know he had a shears and all but he’d carry anything around, ya know, locked drunk he’d carry anything around.”
Referring to the responses of the accused as set out in the transcript of the interview, it was submitted on his behalf that the evidence was not sufficient to establish mens rea on the part of the accused such as to convict him of murder.
Counsel on behalf of the DPP responded to the application for a direction by making two arguments. The first argument was that a jury could conclude by inference from the evidence that the accused was aware of what Trevor Noone intended was going to happen to Daniel McAnaspie, that by his own actions in going along with him to the Tolka, he at least intended that serious injury be caused to Mr. McAnaspie and therefore, even on a restricted view of the meaning of s. 4 of the 1964 Act, the case for murder should go to the jury as the prosecution case should be taken at its highest. He referred to the admissions made by the accused in the course of the memorandums of his interviews together with the fact that the accused knew and accepted that he knew that Mr. Noone had armed himself with a large lethal weapon being half a shears (garden shears). The accused was party to a situation where he and Mr. Noone got the deceased to go down to an isolated park in the dead of night to receive a hiding. He was aware of the character of Mr. Noone as someone who would carry anything. He knew it was a lie that the three of them were “off to fight the Corduff lads”. Therefore it was submitted that a jury could imply from all of the circumstances what, in fact, the accused knew to be the case. Even if it was the case that there must be some equivalence of the mental state of the principal or some knowledge of intention on the part of the principal it was submitted that taking the prosecution case at its highest, the jury could infer such from the admissions that were made. The second argument put forward on behalf of the Director of Public Prosecutions was that the mental element required of an accessory to murder was something less than that required of a principal under s. 4 of the 1964 Act. This submission was based on developments in the law in the context of the liability of accessory in this jurisdiction and in the neighbouring jurisdiction in recent years. I will refer to the authorities relied on in this regard at a later point in the course of this judgment.
The ruling
Having considered submissions made at the close of the prosecution case by counsel on behalf of the accused and also on behalf of Mr. Noone, the learned trial judge ruled as follows:
“Applications for directions withdrawing the case from the jury are made on behalf of the both accused and I must at this stage take the prosecution case at its height for the purpose of those applications. This case is unusual, in that there is absolutely no forensic evidence linking either of the accused persons to the deceased victim, Mr. McAnaspie. In each case, the only evidence linking the accused to the death of Mr. McAnaspie stems from the statements and interviews which, I must say, were carried out with the utmost skill wherein each accused implicated himself. In both cases the evidence is such as would entitle the jury to find that each accused was party to luring the victim to the remote and dark area where he was brutally murdered. In Mr. Noone’s case, it was stated in the course of the interview which commenced at 2.39pm on the 10th November, 2010 that Mr. Dekker had told him that he was going to stab the deceased; that, together with the rest of his statements, would entitle a jury to convict him of murder, in that he could be held to have aided and abetted the commission of a murder. Mr. Dekker’s case is different in one material respect: in his case, there was no evidence that he knew death or serious injury were to be inflicted on Mr. McAnaspie. The evidence against him is based upon his own statement which, at its height, indicated that Mr. McAnaspie was to receive a few digs. That evidence is simply not enough to allow a jury to convict him of murder and I accede to the application on his behalf.”
Discussion
Mr. Gillane, S.C., counsel on behalf of the accused, identified the issue of law arising on this appeal as the nature and extent of mens rea required to support a conviction for murder as an accessory. In his written submissions he observed that:
Mr. Grehan, S.C., on behalf of the appellant, accepted that the above statement correctly identified the issues to be determined on this appeal.
I propose to consider and address the question as to whether or not there was evidence before the Court taking the prosecution case at its highest such that the case could be left to the jury on the basis that the accused had the necessary mens rea for murder as an accessory as posited in the first scenario.
It is necessary therefore, to examine the evidence before the learned trial judge in order to ascertain whether the learned trial judge was correct in his decision to grant a direction in respect of the accused. The learned trial judge pointed out that there was no forensic evidence linking either of the accused to the late Daniel McAnaspie. He observed that the only evidence against each of them stemmed from the statements and interviews wherein each accused implicated themselves. He also made the point that:
“The evidence is such as would entitle the jury to find that each accused was party to luring the victim to the remote and dark area where he was brutally murdered.”
However, as can be seen from the ruling of the learned trial judge set out above, he concluded that in the case of the accused:
“There was no evidence that he knew death or serious injury were to be inflicted on Mr. McAnaspie. The evidence against him is based upon his own statement which, at its height, indicated that Mr. McAnaspie was to receive a few digs.”
Counsel on behalf of the DPP contends that the inference can be drawn from the information contained in the statement of the accused that he aided and assisted his co-accused in the murder of Mr. McAnaspie with knowledge of the offence that the co-accused was proposing to commit. Given that the only available evidence against the accused is that contained in the seventh interview that took place between the Gardaí and the accused it is necessary to look at the memorandum of that interview in some detail. Prior to the seventh interview, some six interviews had taken place between the Gardaí and the accused and in those interviews the accused denied any involvement in the murder of Mr. McAnaspie. At the commencement of the seventh interview with the accused, the memorandum of interview of Mr. Noone was read out to the accused and he then changed his approach and set out a number of matters in relation to the events leading up to the murder of Daniel McAnaspie. The following list of extracts from the memorandum of interview of the accused gives a flavour:
“He wasn’t going to Corduff either.”
“He wanted to give your man a hiding over fighting with his cousins.”
“He asked me ‘Are we walking down the Tolka, I just wanna give him a hiding’.”
“Then we were on the footbridge, Daniel was walking ahead, Trevor had the shears in his hand and stuck it straight in his back.”
“He brought the shears with him, he got the shears out of my front garden.”
“He wanted to bring Daniel down to the Tolka, just to, he told me he was just gonna give him a hiding over fighting with his cousin or his uncle or whatever it was. He had the shears with him. I didn’t think Trevor was gonna do this. And you actually said to me earlier on, no one would do that to a dog - Trevor has a fucking dog buried out his back garden he stabbed to death.”
“Daniel didn’t know anything about this. He didn’t know that Trevor was gonna give it to him, know what I mean . . ..”
“I knew, like Trevor was already after saying to me right we’ll bring him down the Tolka and Trevor was gonna give him a hiding over fighting with his family, even though he already knocked him out.”
The accused confirmed again that his co-accused had the shears which he got from the front garden. Later on he responded to the question:
“Would you say that when he was going down it wasn’t to give him a straightener, it was to go down to kill him?”
“I didn’t know that. I thought that he was just going to give him a couple of digs. That was it, you know I men. (sic) I know he had a shears and all that he’d carry anything around, you know, locked drunk he’d carry anything around.”
Subsequently he was asked:
“And the two lads already had an altercation that night. You’re saying that Trevor already gave Daniel a straightener that night?”
“It wasn’t even a straightener, Daniel didn’t fight back, Trevor hit him. I was standing there and Daniel was saying I’m fighting with this person and that person and he mentioned one name that was related to Trevor and Trevor just went bang and just floored him and knocked him on to the deck.”
The principles set out in R. v. Galbraith [1981] 1 W.L.R. 1039 have been cited with approval in this jurisdiction as previously mentioned in DPP v. Martin Lacey and in many other cases. Lord Lane C.J. said:
There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge.”
Counsel for the DPP made the submission that when the trial judge took the view that:
“The evidence against him is based upon his own statement which, at its height, indicated that Mr. McAnespie was to receive a few digs”, the interpretation of those remarks by the accused was a matter for the jury. That may be so, but counsel for the DPP in the submissions to the trial judge on the application for a direction reviewed the admissions made by the accused about getting the deceased, Mr. McAnaspie, to go down to the isolated park in the dead of night at least to receive a hiding, and conceded “If that was the entire state of his knowledge, I think there might be something in what Mr. Gillane had to say”.
However, having made that concession counsel went on to submit that that did not represent the prosecution case at its height. There were a number of other matters in the memorandum of interview that the jury could take into consideration in considering the liability of the accused. These included the fact that the accused was aware that Mr. Noone struck Daniel McAnaspie earlier in the evening because of an alleged incident between Mr. McAnaspie and members of Mr. Noone’s family; the accused was willing to facilitate the deceased being brought to an isolated area using a ruse; he knew that the purpose of doing so was to give Mr. McAnaspie “a hiding”. He knew that Mr. Noone had brought a weapon with him, namely the garden shears or half shears which had been removed from the accused’s front garden. It was also pointed out that the reference to “a couple of digs” had to be seen in the context where the accused knew that Trevor Noone had taken the garden shears and had said that he was going to give Daniel McAnaspie a hiding over fighting with his family.
At this point it would be useful to recall the law in respect of accessorial liability which has been set out in a number of decisions over the years starting with the case of The People (DPP) v. Madden [1977] 1 I.R. 336. In that case it was stated at p. 340 as follows:
“In the absence of evidence showing that any one of the accused actually took part in the shooting of Laurence White, the case made against each of them is that he aided and abetted in the killing of the deceased. The killing of the deceased is described in the evidence which undoubtedly establishes that it was accomplished in a manner from which the mens rea required for the offence of murder may be inferred in relation to the persons by whom the killing was committed. To sustain a conviction of any one of the accused as an accessory before the fact for aiding and abetting in the commission of this crime, the prosecution must prove that the acts of aiding and abetting attributed to the accused were done in the knowledge of the intended commission, and assisted the commission, of the actions carrying the mens rea of the offence committed by the principle, that is to say, an unlawful killing such as is described in section 4, sub-section (1) of the Criminal Justice Act 1964.”
The test set out in that case (at p. 341) was stated in the following terms:
“In relation to a charge of aiding and abetting, it is clear from the cited judgments in Bainbridge’s case and Gamble’s case that motives and desires are irrelevant, and that mere evidence of common association is insufficient. The kernel of the matter is the establishing of an activity on the part of the accused from which his intentions may be inferred and the effect of which is to assist the principal in the commission of the crime proved to have been committed by the principal, or the commission of a crime of a similar nature known to the accused to be the intention of the principal when assisting him.”
The approach taken in that case was followed in the case of The People (DPP) v. Egan [1989] 1 I.R. 681 where it was held that:
“In order to be convicted of the principal offence, it was not necessary for the prosecution to establish that a person who aided and abetted the principal offender before the crime was committed had knowledge of the actual crime intended. It is sufficient that a person who gave assistance knew the nature of the intended crime.”
More recently the matter was considered in the case of The People (DPP) v. Cumberton (Unreported, Court of Criminal Appeal, 5th December, 1994). In that case the Court at p. 5 stated:
“It seems to the Court, however, that whether it was within the contemplation of the common design or not was a question of act for the jury. It was for them to decide in the light of the evidence what was the common design and then to decide whether what Reilly did fell within it.”
The court in that case was satisfied that there was ample evidence on which a jury could come to a conclusion.
The learned trial judge in his ruling in this case observed that the evidence was such as would entitle a jury to find that each accused was party to luring the victim to the remote and dark area where he was brutally murdered. I am satisfied that having regard to the principles set out in R. v. Galbraith that there is also evidence upon which a jury taking into account all of the relevant matters contained in the statement of the accused could convict him of murder as an accessory. I accept that there is no clear admission made by the accused which would suffice on its own to allow the case to go before a jury but when one considers all of the admissions as to the facts and circumstances surrounding the death of Mr. McAnaspie contained in the memorandum of interview described previously, such as the knowledge of the previous altercation, the use of a ruse to get Mr. McAnaspie down to the Tolka, the fact that Mr. Noone had the half shears with him, it seems to me that it is open to a jury to convict of murder by drawing inferences as to his intention from the facts and circumstances described by the accused in the memorandum of interview. Thus, it would be for the jury to consider, paraphrasing the words used in Madden, has an activity on the part of the accused been established from which his intentions may be inferred and the effect of which is to assist the principal in the commission of the crime proved to have been committed by the principal, or the commission of a crime of a similar nature known to the accused to be the intention of the principal when assisting him? In the circumstances of this case, I am satisfied that the prosecution case taken at its height is such that there is sufficient evidence to allow the matter to go before a jury taking into account the facts and circumstances described by the accused from which inferences could be drawn as to the actions and intention of the accused in aiding and abetting Mr. Noone. It will ultimately be a matter for a jury to determine if the accused in assisting Mr. Noone had knowledge of the nature of the crime intended by the principal. (See The People (DPP) v. Egan [1989] 1 I.R. 681 referred to above.) Thus, the facts of the case are a matter for the jury and it will be for them to consider the verbal statements of the accused as to his state of knowledge of Mr. Noone’s intention together with all the facts and circumstances described by the accused in the memorandum of interview. In the circumstances, it seems to me that the learned trial judge erred in his decision to grant a direction on the application of the accused and having regard to the first scenario posited on behalf of the DPP, I would allow the appeal on this point.
The second scenario
Strictly speaking, it is not necessary to consider the second scenario described in this case but given the importance of the issue raised as to the extent of the mens rea required of an accessory to murder, I think it is appropriate to consider the arguments put forward.
Counsel for the DPP placed emphasis on a number of factual matters, namely, the accused’s knowledge that Mr. McAnaspie was to get a hiding or “a couple of digs”, that the hiding was to occur in an isolated or secluded area as opposed to the incident that occurred earlier in the evening when Mr. McAnaspie was assaulted in the street in front of other people and the fact that the hiding was being facilitated by the accused in circumstances where he knew that Mr. Noone had armed himself with a half shears. On the basis of these facts it was submitted that there was at the very least a degree of foreseeability attributable to the assistance given by the accused and the act ultimately carried out by Mr. Noone. In support of these arguments, counsel on behalf of the DPP relied on a number of authorities. The first is the case of The People (DPP) v. Costa and Batista (Unreported, Court of Criminal Appeal, 21st January, 2008). The issue in that case was whether a direction should have been granted at the conclusion of the prosecution case on the basis that there was not sufficient evidence to allow a case of joint enterprise to go to the jury. The Court of Criminal Appeal referred to the English case of R. v. Uddin [1998] 3 WLR 1000 in which Beldam J. set out the law as follows (at p. 1008):
“(i) Where several persons joined 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 . . .
(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, and
(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 Reg. v. Powell; Reg. v. English [1997] 3 WLR 959. 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.”
Having referred to the judgment in R. v. Uddin, Kearns J. went on to say (at p. 16):
“The Court is also satisfied that the learned trial judge correctly charged the jury on the issue of joint enterprise in accordance with the principles cited above from R. v. Uddin [1990] 3 WLR 1000.”
Particular emphasis was placed by counsel for the DPP on the matters set out at paragraph (vi) of the principles set out by Beldam J. in R. v. Uddin.
Counsel for the accused laid emphasis on the matters set out at paragraph 1 of the principles identified by Beldam J. in R. v. Uddin and made the point that in the first of the principles identified by Beldam J., liability for murder would arise in circumstances where several persons join to attack a victim where the circumstances made it clear that they intended to cause serious harm and as a result of which the victim suffered a fatal injury. Beldam J. went on to make the point that if the injury inflicted with the intent was 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 then only that participant was guilty of murder. Thus liability could be excluded if the injury was caused by actions of one participant only of a type “entirely different” from the actions foreseen by the others.
The DPP in referring to cases such as that of Costa and Batista, which in turn relied on the decision in R v. Uddin, also made the point that in a series of Irish cases reliance has been placed on authorities from the jurisdiction of England and Wales. In the case of The People (DPP) v. Cumberton, Blayney J. accepted that the relevant law was to be found in the case of R. v. Anderson and Morris [1966] 2 All E.R. 644, a decision of the Court of Criminal Appeal in England and Wales. In The People (DPP) v. Doohan [2002] 4 I.R. 463, Denham J. recognised the principles set out in the decision in R. v. Anderson and Morris. Reference was also made in the course of the judgment to the decision in the case of R. v. Powell and Anor; R. v. English [1999] AC 1. The argument made on behalf of the DPP was that as Irish law on criminal liability has accepted the principles of law set out in a number of decisions of the courts in England and Wales in which the law on accessorial liability has been developed this Court should adopt the same approach in the development of the law as is exemplified in the decision of the House of Lords in R. v. Rahman and Ors. [2008] 3 WLR 264.
R. v. Rahman and Ors.
Given the reliance placed on that decision by the DPP, it is appropriate to look at this case in some detail. The background to the matter was as set out in the headnote as follows:
“C was attacked by a group of persons, including the four defendants, who were armed with various blunt weapons. He collapsed to the ground, where he was further assaulted with blunt weapons and kicked. He was subsequently found to be dead. The cause of death was one or two of three knife wounds, the infliction of which would have required considerable force. At their trial for murder, there was no evidence that any of the defendants had inflicted the fatal injuries. Each defendant gave evidence that he had joined the enterprise with at most an intention to cause serious harm, without knowledge or foresight that anyone else involved in the assault intended to kill. The judge directed the jury, inter alia, that they could convict a particular defendant if they were sure that he had realised that one or more of the attackers might produce and use a knife and kill with the intention of killing C or causing him really serious injury, but that, if they concluded that to stab with a knife had been ‘in a different league’ from the kind of assault which the attackers had implicitly agreed on by the use of other weapons, they would not be responsible for the consequences of the use of the knife unless they had actually foreseen its use. The defendants were convicted and their appeals against convictions were dismissed by the Court of Appeal which suggested a series of questions which a trial judge might invite a jury to consider in such a case.”
The matter was then appeal to the House of Lords which held dismissing the appeals:
“That, where the principal committed an unlawful killing with the requisite intent for murder, an accessory would be liable for murder on the basis of his foresight of what the principal might do rather than his foresight of the intention with which the principal’s act might be performed; that knowledge of the principal’s possession of an obviously lethal weapon would usually be very relevant to the accessory’s foresight of what the principal might do; but that an undisclosed and unforeseen intention to kill on the part of the principal was not relevant to whether the principal’s act had been fundamentally different from the act or acts which the accessory had foreseen as part of the joint enterprise. In those circumstances it was found that the trial judge’s direction to the jury on the law had been correct.”
Lord Bingham of Cornhill in his judgment noted at paragraph 4:
“There was no evidence that any of the appellants inflicted the fatal injuries. The participant who did was probably not apprehended. The prosecution alleged that the role of each appellant in the attack involved either the deliberate and intentional infliction of serious physical harm to the deceased or, by their conduct, the intentional encouragement of others to do likewise; that each appellant shared a common intention that serious bodily harm should be inflicted; and that the circumstances of the attack were such that each of them knew that weapons such as baseball bats, a scaffolding pole and a knife or knives might be used to inflict serious bodily harm.”
Lord Bingham then conducted an extensive review of English law in relation to the criminal liability of accessories. Having done so, he went on to say at paragraph 21 as follows:
“It was, inevitably, common ground between the parties that an accessory may only be criminally liable for a crime which the principal has committed, in murder unlawful killing with intent to kill or cause really serious injury. It was also common ground that the test of an accessory's liability under the wider principle explored in R v Powell (Anthony) [1999] 1 AC 1 is one of foresight. The crucial divide between the parties was: foresight of what? The appellants' answer would include foresight of the principal's intention. The Crown's answer, clearly given by Mr Robert Smith, was: foresight of what the principal might do. On the Crown's analysis the principal's undisclosed intention is beside the point. It is his acts which matter.”
Lord Bingham concluded that there was little support for the appellants’ submissions in the legal authorities. He went on then to say at paragraph 24 and 25 the following:
“24. Authority apart, there are in my view two strong reasons, one practical, the other theoretical, for preferring the Crown's contention. The first is that the law of joint enterprise in a situation such as this is already very complex, as evidenced by the trial judge's direction and the Court of Appeal's judgment on these appeals, and the appellants' submission, if accepted, would introduce a new and highly undesirable level of complexity. Given the fluid, fast-moving course of events in incidents such as that which culminated in the killing of the deceased, incidents which are unhappily not rare, it must often be very hard for jurors to make a reliable assessment of what a particular defendant foresaw as likely or possible acts on the part of his associates. It would be even harder, and would border on speculation, to judge what a particular defendant foresaw as the intention with which his associates might perform such acts. It is safer to focus on the defendant's foresight of what an associate might do, an issue to which knowledge of the associate's possession of an obviously lethal weapon such as a gun or a knife would usually be very relevant.
25. Secondly, the appellants' submission, as it seems to me, undermines the principle on which, for better or worse, our law of murder is based. In the prosecution of a principal offender for murder, it is not necessary for the prosecution to prove or the jury to consider whether the defendant intended on the one hand to kill or on the other to cause really serious injury. That is legally irrelevant to guilt. The rationale of that principle plainly is that if a person unlawfully assaults another with intent to cause him really serious injury, and death results, he should be held criminally responsible for that fatality, even though he did not intend it. If he had not embarked on a course of deliberate violence, the fatality would not have occurred. This rationale may lack logical purity, but it is underpinned by a quality of earthy realism. To rule that an undisclosed and unforeseen intention to kill on the part of the primary offender may take a killing outside the scope of a common purpose to cause really serious injury, calling for a distinction irrelevant in the case of the primary offender, is in my view to subvert the rationale which underlies our law of murder.”
It is noteworthy that a number of the other opinions in that case expressly agreed with Lord Bingham’s observations in paragraphs 24 and 25. Thus Lord Rodger of Earlsferry commented at paragraphs 48 and 49 as follows:
“48. In the present case the simple fact is that the appellants knew that they were taking part in a joint attack with the purpose of causing serious injury, in which one or more of the participants were armed with a knife. Obviously, those participants would not have had a knife with them unless they were prepared to use it in the attack, if the occasion arose. In the absence of any evidence to the contrary, the jury would have been entitled to conclude that the appellants must have realised this when they joined in the attack. Moreover, the appellants were in no position to control what would be done with the knife or knives during the attack. So, in no sense could killing due to the use of a knife be regarded as a complete departure from what the appellants contemplated as being involved in the common design.
49. Suppose, however, that the appellants did not specifically contemplate that one of their number would use a knife with the intention of killing any of their opponents. Nevertheless, they participated in an attack in which, as they knew, they would have no control whatever over what those armed with a knife or any other weapon might do with it. In joining in the attack, the appellants therefore took the risk of anything that any of their number might do with the weapon at his disposal in the heat of the moment. In these circumstances any decision to kill did not ‘relegate into history’ the events in which the appellants were involved. Rather, the killing flowed directly from the joint attack in which the appellants had decided to participate. The words of Sir Robin Cooke in Chan Wing-Siu v. The Queen [1985] AC 168, 177, are apt to describe the appellants' predicament:
‘What public policy requires was rightly identified in the submissions for the Crown. Where a man lends himself to a criminal enterprise knowing that potentially murderous weapons are to be carried, and in the event they are in fact used by his partner with an intent sufficient for murder, he should not escape the consequences by reliance upon a nuance of prior assessment, only too likely to have been optimistic.’
The considerations identified by Lord Bingham in paras 24 and 25 of his speech support this approach.”
Lord Brown of Eaton-under-Heywood made the following observations at paragraphs 66 and 70:
“66. Of course the secondary party can say in evidence that he was ignorant not merely of the principal's possession of a knife or gun or whatever it was but also of his murderous intent. But if the jury conclude that he knew about the weapon and foresaw the possibility of its use to cause at least grievous bodily harm then they must convict him of murder whether he knew of the killer's murderous intent or not. R. v. Powell (Anthony) [1999] 1 AC 1 itself is surely directly in point on this issue: no one suggested there that it mattered whether the appellants realised that the third man was intent on killing the drug dealer; it was sufficient and fatal to their defence that they knew he had a gun and foresaw he might use it at least to cause GBH.
70. On the narrow arguments now raised I am in full agreement with all that Lord Bingham of Cornhill says at paras 24 and 25 of his opinion. There is this further consideration too. At what point is it suggested that the killer's actual intention is to be determined? He may have embarked upon the venture intending at most to cause GBH but later, in the heat of battle, for any one or more of a host of possible reasons, changed his mind and decided to kill or perhaps merely become reckless as to whether he killed or not. It is absurd that the criminal liability of secondary parties should depend upon such niceties as these.”
For completeness it would also be helpful to refer to the opinion of Lord Neuberger of Abbotsbury. At paragraphs 80 and 81 he said:
“So far as the authorities are concerned, they indicate that, where A and B are engaged on a joint criminal enterprise, B should be criminally liable for A's acts, save insofar as any act of A involved his having ‘departed completely from the concerted action of the common design’, to quote from Lord Parker CJ in R v Anderson; R v Morris [1966] 2 QB 110, 120. The same point was made in different words by Beldam LJ in R v Uddin [1999] QB 431, 441B-C, where he referred to ‘the actions’ of A being attributable to B, unless they were ‘of a type entirely different from actions which B foresaw’. This reflected the language of the certified question in what has been the leading case on the topic at least so far as the crime of murder is concerned, namely R. v. Powell (Anthony) [1999] 1 AC 1, 17C, where the expression used was ‘fundamentally different.’
81. Accordingly, the issue on this appeal resolves itself into whether, on the bare facts described in para 76, the difference between B's understanding of A's intention and A's actual intention could entitle a jury to conclude that A's action ‘departed completely’, or was ‘entirely’ or ‘fundamentally’ different, from what B foresaw, and therefore justified B being acquitted of V's murder.”
He continued at paragraph 87:
“Accordingly, in the absence of special factors, and subject to any good reason to the contrary, I consider that, even if the primary perpetrator intended to kill the victim, an alleged accessory should not escape a murder conviction simply because he only foresaw or expected that the perpetrator intended to cause serious injury. The mere fact that the perpetrator intended to kill does not render his actions ‘entirely’ or ‘fundamentally’ different from what the alleged accessory foresaw or intended. It follows that, subject to any further arguments persuading me otherwise, I consider that Wakerley J's summing up in the present case cannot be impugned on this score.”
Lord Neuberger concluded his judgment by saying at paragraph 103:
“For the reasons I have tried to explain, in a case such as that summarised in para 76, B would normally be guilty of murder, in view of the decision in R. v. Cunningham [1982] AC 566 and of the law relating to accessories In other words, it appears to me that the conclusion I have reached flows from the fact that an intention to cause serious bodily injury is sufficient mens rea to found liability for murder, and from the fact that in cases such as these involving accessory liability, the touchstone is one of foresight, as Lord Bingham puts it in para 11. It is a matter for the legislature, not the courts, to decide whether to change this, or any other, aspect of the law relating to murder or accessories. . . .”
The observation may be made at this point that the case of R. v. Rahman is a case of joint enterprise. A case of joint enterprise involves accessorial liability but not all accessories are involved in a joint enterprise/common design. As McIntyre, McMullen and O’Toghda in their work, Criminal Law, commented at p. 373 : “Closely related to secondary liability is the doctrine of common design, also known as the doctrine of joint enterprise.” In this case, there is no suggestion that the accused and Mr. Noone had embarked on a common design to seriously injure or kill Mr. McAnaspie. The case made against them in essence is that having regard to the account given by the accused and Mr. Noone as to their own state of knowledge and involvement in the murder of Mr. McAnaspie they are each guilty of his murder on the basis that their admissions bring them within the legal definition of being an accessory to the offence of murder which each says was committed by the other. Nevertheless, although R. v. Rahman concerned a joint enterprise, the judgments in that case have are of assistance on the facts of this case.
Commentary on R. v. Rahman
McIntyre, McMullan and O’Toghda in Criminal Law went on to make a number of observations in relation to secondary liability and liability on foot of joint enterprise. They referred to the observations of Campbell Kilcommins and O’Sullivan, Criminal Law in Ireland: Cases and Commentary (2010, p. 305) where they observed at p.375:
“It is difficult to see in Ireland, for example, how a wider door of liability arises through the process of joint enterprise given that it is limited to what is expressly or tacitly agreed between the parties.”
McIntyre, McMullan and O’Toghda went on to comment (at p. 375):
“While the above observations on the criminal laws heightened concern with offences involving a group element hold true, it is worth noting that secondary liability may also have such a group element. For example, a number of men might agree to take part in a criminal assault on a victim and be found guilty under doctrine of joint enterprise; it being their common design to attack the victim each party will be liable for the acts of the other in executing the criminal enterprise. Equally, on very similar facts, the principal offender might assault the victim with the assistance and encouragement of a group of men, each secondary party playing a distinct role in participating in the principal offence. Assistance might be offered by supplying a weapon, luring the victim to the crime scene, acting as lookout, facilitating escape or simply being present in numbers so as to overbear the victim’s will to such a degree that he is resigned to suffering the attack and offers no resistance. It follows that a group of men may form a criminal group and be dealt with under either the principles relating to secondary liability or the doctrine of joint enterprise. It would appear that the threat posed by group crime might be adequately catered for under both legal doctrines.”
The authors went on to consider the position in England and, at p. 377, made the following comments:
“The English position on common design seems to be distinct in that an offence will be considered to be part of the common design if the offence was in the contemplation, or foresight, of the defendant. Under English law, liability for joint enterprise is based on a test of contemplation or foresight. A party to a joint enterprise is liable for an offence committed by another party if he has foreseen the possibility that the offence might be committed in the course of the joint enterprise. Foresight or contemplation in this context is considered to be subjective in nature. Under this arrangement, there is no requirement of any agreement, tacit or otherwise, to commit an offence; it is sufficient that the defendant contemplated or foresaw the possibility of the offence. In R. v. Rahman, the victim was attacked by a group of men armed with various blunt instruments, including the four defendants. After a severe beating he died. The cause of death was later discovered to be a number of knife wounds. Since it was not possible to establish which person inflicted the fatal injury each defendant was charged as being part of a joint enterprise to kill the victim. The House of Lords held that where a party to a joint enterprise committed an unlawful killing with the requisite intent for murder, other parties could be held liable for murder on the basis of their foresight of what the principal might do. It remains to be seen whether the Irish courts will approach the issue of joint enterprise liability by retaining their focus on the agreement or following the English approach based on foresight.”
An article in the Irish Law Times entitled “The Doctrine of Common Design: Beyond the Plain Vanilla Version” (2010) 28 I.L.T. 63), by Elaine Finneran considered the developments of the law in this area. Having referred to the judgments and in particular the judgment of Lord Bingham of Cornhill in R. v. Rahman in which he reviewed the decision in R. v. Powell, she observed (at p. 66):
“Arguably, what Lord Bingham identified as prosecution difficulties improving the elements of their case against participants in a joint venture. The interpretation of the doctrine of common design in this fashion allows the court to overcome these difficulties. The proposition that it is somehow safer to focus on the issue of foresight rather than agreement is an interesting one; one could suggest that this is rather the safety of obtaining a conviction than the safety of protecting an accused’s due process rights.”
She went on to add (at p. 67):
“This new species of common design can validly be accused of having a number of faults including that of being over expansive and in conflict with many well established principles of the criminal law. It imports a lesser form of culpability into the spectrum of criminal offences, and in particular into that of murder. The mens rea required of a secondary offender to render him liable for an offence is of a much lesser standard than that required of the principal offender. It has been suggested that all cases that qualify under the foresight test for joint enterprise are merely cases of aiding and abetting, a principle which Buxton suggests has been explicitly accepted in R. v. Powell, Daniels and English and R. v. Raman.”
She concluded her article by observing (at p. 67):
“The key issue now is whether the Irish courts will accept that ‘foresight defines the scope of the joint enterprise’.”
It will come as no surprise to know that the decision in R. v. Rahman has also been the subject of academic discussion in the United Kingdom. Thus in an article headed “Joint Enterprise” 2009 Crim. L.R. (4) 233- 244 Richard Buxton made a number of observations in the context of crimes of murder. At p. 234 he observed:
“Much difficulty has been caused by the need to apply rules of secondary liability, that require of the secondary parties some sort of subjective attitude towards the commission of the principal crime (be that attitude intention, belief, realisation, foresight or contemplation), to cases of murder where the secondary party can only be shown to have contemplated the infliction of grievous bodily harm, and not death, by a principal whose intention in fact was or may have been to kill. In such a case, the secondary party did not have subjective foresight or belief in respect of one element that constituted the principal crime.
The argument that such lack of belief should acquit the secondary party of liability in respect of murder, as opposed to liability for whatever crime he did contemplate the principal committing, was rejected in Rahman. The reason why the argument fails is that given by Lord Bingham (at [25]). The law of secondary liability must apply in uniform terms throughout the substantive law, and must take that substantive law as it finds it. For reasons good or bad it is the law that liability for murder can be established by proving either an intention to kill or an intention to cause grievous bodily harm. In the posited hypothetical case, therefore the prosecution would not need to prove the principal’s intention to kill in order to convict him of murder; intent to cause serious bodily harm, which was contemplated by the secondary party would have been enough to convict the principal. To hold that not to have been enough would have amounted to redefining the substantive law of murder as it applied in a case which had the accidental addition of secondary liability, but not as the substantive law applies generally.”
Apart from such academic commentary it is useful to consider what was said in Archbold, “Criminal Pleading, Evidence and Practice” [2015 Ed.] in its commentary on the decision commencing at paragraph 19 - 25:
“Following on from R. v. Powell; R. v. English, the House of Lords held in R. v. Rahman [2009 1 AC 129, HL, that where, in the course of a joint enterprise to inflict unlawful violence, the principal killed the victim intending to do so but the secondary party only foresaw that the principal might use force with an intent to cause serious injury, the secondary party was still guilty of murder as the principal’s intention was not relevant to
(i) whether the killing was within the scope of the joint enterprise or
(ii) whether the principal’s act was fundamentally different from the act or acts which the secondary party foresaw as part of the joint enterprise.
In R. v. Lewis, Ward and Cooke [2010] Crim. L.R. 870, C.A., the Court said at ([26]) that the effect of Rahman was that an accessory is liable for murder on the basis of his foresight of what the principal might do rather than his foresight of the intention with which the principal’s act might be performed. To the extent that this suggests that it is sufficient that the accessory foresees that the principal might kill, it is submitted that this is misleading and wrong. Rahman did not alter the requirement that the accessory must have foreseen that the principal might act with murderous intent (see R. v. A. (Joint Enterprise), post, 19 - 28). What Rahman decided was that an accessory was not absolved from responsibility if he foresaw that the principal might act with intent to cause really serious bodily harm, but the principal in fact acted with an intent to kill (which he had not foreseen). To the extent that the Court in R. v. Willett [2011] Crim. L.R. 65, C.A., made a similar suggestion (at [17], and see also [10]) it is submitted that it was again in error. Consistently with Rahman, it had been held in the earlier case of R. v. Day (M) [2001] Crim LR 984, C.A. that where an alleged secondary party to murder foresaw the act of the principal that caused the victim’s death, but did not realise that the principal might act with the mens rea for murder, but did envisage that harm less than serious bodily harm might result, he would be guilty of manslaughter. This was confirmed post-Rahman in R. v. Yemoh [2009] Crim. L.R. 888, C.A. and re-affirmed in R. v. Carpenter [2012] 1 Cr App R 11, C.A. See also R. V. Gilmour [2000] 2 Cr App R 407, NICA (ante, 18 - 15). The obiter observation to the contrary in Attorney Gen’s reference (No. 3 of 2004) [2006] Crim LR 63, C.A., must now be regarded as wrong as being inconsistent with Rahman and with these authorities. Referring to Day in R. v. Parsons [2009] 2 Archibold News 3, the Court of Appeal said that a judge would only be obliged to leave manslaughter to the jury on this basis where there was evidence to support such a conclusion.
Mere foresight is not enough; the secondary party, in order to be guilty, must have foreseen the relevant act of the principal as a possible incident of the common unlawful enterprise and must, with such foresight, have participated in the enterprise: Hui Chi Ming v. R. [1992] 1 AC 34, P.C.
In Chang Wing Siu, ante, the Privy Council said that in cases where an issue of remoteness arises, it is for the jury to decide whether the risk as recognised by the accused was sufficient to make him a party to the crime committed by the principal. No one of various available formulae is exclusively preferable, e.g. a substantial risk, a real risk, a risk that something might well happen. The question is not one of semantics. What has to be brought home to the jury is that occasionally a risk may have occurred to an accused’s mind, fleetingly or even causing him some deliberation, but may genuinely have been dismissed by him as altogether negligible. If the jury think there is a reasonable possibility that the case is in that class, taking the risk in such circumstances should not make the accused a party to such a crime of intention as murder or wounding with intent. The judge is entitled to warn the jury to be cautious before reaching that conclusion.
In R. v. Roberts 96 C.R. APP. R. 291, C.A. the Court said with regard to Chan Wing Siu that it was doubtful whether a defendant, who fleetingly thought of the risk of the principal using violence with murderous intent in the course of a joint enterprise, only to dismiss it from his mind and go on to lend himself to the venture, could truly be said, at the time when he so lent himself, to “foresee” or “realise” that the principal might commit murder. To realise something might happen was to contemplate it as a real not a fanciful possibility. Accordingly to seek to distinguish between a fleeting but rejected consideration of a risk and a continuing realisation of a real risk would, in most cases be unnecessary. It would also overcomplicate directions to juries and possibly lead to confusion.”
It was then noted in paragraph 19 - 30 that Lord Brown in the course of his judgment in the R. v. Rahman had put forward a restatement of the governing principles with which Lords Scott, Rodger and Neuberger concurred at paragraph 68 of his judgment, which is set out above. The commentary in Archbold in relation to this restatement is as follows:
“Whilst this may strictly have been obiter, it is a relatively simple restatement in an area which has been bedevilled by over elaboration and confusion. It has ample authority to support it and trial judges are likely to latch on to it in preference to the complex series of questions suggested by the Court of Appeal.”
The decision in R. v. Rahman has been applied and followed in a number of subsequent decisions such as R. v. Jogee [2013] EWCA Crim 1433, Court of Appeal, R. v. Badza [2009] EWCA Crim 2695, Court of Appeal, R. v. Yemoh [2009] EWCA Crim. 1620 and R. v. Mendez [2011] QB 876.
` The commentary in Archbold is a useful recitation of the relevant legal principles in England and Wales insofar as it sets out the effect of the decision in R. v. Rahman.
R. v. A.
The decision in R. v. Rahman was also considered in the case of R. v. A. [2011] 2 WLR 647. In that case the Court of Appeal sought to explain the decision in R. v. Rahman in which four defendants had been charged with murder. It was alleged that three of them had beaten the deceased without using any weapon and that the attack had been organised by the fourth. It was not possible to identify individual acts of violence or which blow or blows had caused death. At the trial the judge directed the jury that a defendant would be guilty if, inter alia, he had participated in a plan to assault the deceased in which he intended to cause him some harm, less than really serious bodily harm but had realised that there was a real risk that one of the others might cause him really serious bodily harm and such harm had been caused and he had not disassociated himself from that plan. All four were convicted of murder. They appealed on the grounds that the judge failed to direct the jury that (i) a secondary party would only be guilty of murder if he participated foreseeing that one of the others might intentionally cause the deceased grievous bodily harm and (ii) they had to be sure that at least one of the assailants (whether identified or not) had committed murder as a principal. The Court of Appeal allowed the appeal holding:
“Although in many cases of joint enterprise the critical question for the jury would be what act the secondary party had foreseen that the principal might commit, in the type of joint enterprise under consideration the secondary party could only be found guilty of murder if he had foreseen that the principal might (not would) act with intention to kill or cause really serious bodily harm in the course of their joint enterprise; that since guilt based upon joint enterprise was a form of secondary liability it was necessary to prove that somebody, whether identified or not, had committed murder as a principal, in that he had unlawfully killed the deceased with intent to kill or to cause really serious injury, before any other participant could be found guilty of murder by virtue of the principles of joint enterprise; and that accordingly since the judge had not directed the jury in terms that a defendant could be guilty on the basis of joint enterprise only if both he had foreseen that someone, identified or not, would inflict really serious bodily harm on the deceased with the intention of doing so and someone had actually done so, the convictions were unsafe and would be quashed.”
In the course of the written submissions counsel for the accused referred to the judgment of the Court of Appeal in that case and in particular to the analysis in the course of the judgment by Hughes L.J. of the decision in Rahman. Thus, at paragraph 26, Hughes L.J. stated:
“We conclude that there is no indication that R. v. Rahman [2009] AC 129 meant to alter the well understood previous law and every indication that it did not. D2 must be proved to have foreseen that D1 might (not would) act with intent to kill or to do GBH. R. v. Rahman was a fundamental departure case. Where in R. v. Rahman it is said that it is foresight of act rather that foresight of intention that is relevant, that is in relation to the issue of fundamental departure. It does not mean that foresight of D1’s intention is never relevant.
27. Further, as a matter of principle the liability of D2 in the third type of joint enterprise scenario, here under discussion, rests, as all these citations show on his having continued in the common venture of crime A when he realises (even if he does not desire) that crime B may be committed in the course of it. Where crime B is murder, that means that he can properly be held guilty if he foresees that D1 will cause death by acting with murderous intent (viz either the intent to kill or the intent to do GBH). He has associated himself with a foreseen murder. If all he foresees is that death may be caused without either of those intentions, he has not associated himself with a foreseen murder; he has associated himself with foreseen manslaughter.”
He concluded at paragraphs 36 as follows:
“We should, however, add that in a great many cases, foresight of D1’s act will almost inevitably carry with it foresight of an intention to kill or at least to cause really serious injury. If, as in many of the reported cases, D1 is carrying a knife or a gun or a broken bottle, and uses it, the real question will normally be whether D2 knew he was carrying it and foresaw that he might (not would) use it. If D2 did know this then ordinarily that will mean that D2 realised (foresaw) that D1 might act with intent to kill or do really serious injury, at least until there is some proper evidential basis for asserting the possibility that D2 foresaw an intent to inflict no or minor harm . . .”
Discussion
The concept of foreseeability as explained in the decision of the House of Lords in R. v. Rahman is not as far-reaching as it might at first seem. As is pointed out in Archbold and referred to above,
“What Rahman decided was that an accessory was not absolved from responsibility if he foresaw that the principal might act with intent to cause really serious bodily harm, but the principal in fact acted with an intent to kill (which he had not foreseen).”
It was also pointed out in Archbold that mere foresight is not enough. It must be borne in mind that in our jurisdiction and in the neighbouring jurisdiction, the principal will be guilty of murder even if it is clear that he/she did not have the intention to kill. It will suffice to show that there was an intention to cause serious injury (in this jurisdiction) or really serious bodily harm (in the neighbouring jurisdiction- see for example, R. v. Cunningham [1982] AC 566). It goes without saying that for an accessory to be found guilty of murder, there must be a principal who has killed the victim with necessary intent, that is either with an intent to kill or to cause serious injury.
Much of the case law from the United Kingdom discussed above is concerned with the law in relation to joint enterprise and whether or not the death of the victim has arisen from a “fundamental departure” from the joint enterprise agreed on. This is well explained in the judgment of Hughes L.J. in R. v. A. referred to above. Hughes L.J. noted at paragraph 9 of his judgment as follows:
“The expressions ‘common enterprise’ or ‘joint enterprise’ may be used conveniently by the courts in at least three related but not identical situations.
(i) Where two or more people join in committing a single crime, in circumstances where they are, in effect, all joint principals, as for example when three robbers together confront the security men making a cash delivery.
(ii) Where D2 aids and abets D1 to commit a single crime, as for example where D2 provides D1 with a weapon so that D1 can use it in a robbery, or drives D1 to near to the place where the robbery is to be done, and/or waits around the corner as a getaway man to enable D1 to escape afterwards.
(iii) Where D1 and D2 participate together in one crime (crime A) and in the course of it D1 commits a second crime (crime B) which D2 had foreseen he might commit.
These scenarios may in some cases overlap.
10. There is utility in the use of the expressions ‘common enterprise’ or ‘joint enterprise’ in each of these situations especially to introduce a jury to the proposition that a man may be responsible for acts which his own hand did not physically commit if those acts are within the common purpose. But, as Lord Browne of Eaton-under-Heywood pointed out in R. v. Rahman [2009] AC 129, para. 63, the third scenario depends upon a wider principle than do the first and second. The important difference is that, in the third type of scenario, D2 may be guilty of an offence (crime B) that he did not want or intend D1 to commit, providing that he foresaw that D1 might commit it in the course of their common enterprise in crime A.
11. This case involves, as many murder cases do, consideration of the third type of scenario. Here, as the jury must have found, there was an agreed common purpose to commit crime A, the beating of the deceased. The question was this. If in the course of it, one or more participants inflicted not simply injury but grievous bodily harm, when had Crime B (murder) been committed by those who did not themselves personally inflict it? . . .
13. In those circumstances, there are in R. v. Rahman observations to the effect that it is foresight of D1’s act rather than of his intent which is crucial. It is necessary for us to decide whether they mean that R. v. Rahman was deciding that foresight of the intention of D1 is always irrelevant. If that is what R. v. Rahman decided, then the first criticism made of the judge’s direction in this case . . . would be wrong.”
Hughes L.J. then went on to make a number of observations on R. v. Rahman commencing at paragraph 17:
“Lord Bingham of Cornhill stated the appellants’ argument, advanced by Mr. Harrison QC, in clear terms, at para. 19:
‘it was strongly arguable that the principal's intention to kill, if found by the jury, took his (the principal's) action outside the scope of the common design and rendered it fundamentally different from anything the appellants had foreseen or contemplated.’
18. It was in that context that he continued, at para. 21, in these words:
‘It was, inevitably, common ground between the parties that an accessory may only be criminally liable for a crime which the principal has committed, in murder unlawful killing with intent to kill or cause really serious injury. It was also common ground that the test of an accessory's liability under the wider principle explored in R v Powell (Anthony) is one of foresight. The crucial divide between the parties was: foresight of what? The Crown's answer, clearly given by Mr Robert Smith, was: foresight of what the principal might do. On the Crown's analysis the principal's undisclosed intention is beside the point. It is his acts which matter.’
Lord Bingham accepted this submission of the Crown (see paragraphs 23-25). The words which we have emphasised may, like the headnote, if read out of context, be thought to justify the proposition that foresight of D1's intention is always irrelevant. There is no doubt that they should not so be read.
19. First, the Crown submission, accepted by Lord Bingham, was certainly not that foresight of the intention of D1 was always irrelevant. It was simply that the difference between D1's intention to kill and his foreseen intention to do GBH was irrelevant to the question of the scope of the common enterprise/fundamental departure. The Crown's argument is summarised at page 138E and following of the report. It began with these words:
‘The appellants' submissions are misconceived as a matter of law in that an unknown and unforeseen intent to kill on the part of the principal is insufficient per se to render his actions fundamentally different from those foreseen by the secondary parties to a common design to inflict unlawful violence where those parties foresee the infliction of serious bodily harm with that intent by him.’ (emphasis as in the original).
That made crystal clear that the issue being confronted was fundamental departure and the words for which we have supplied emphasis demonstrate beyond doubt that the Crown accepted that the basic necessity for D2's liability was foresight that D1 would inflict GBH with intent. It is certainly true that in the course of his argument Mr Smith QC did refer to foresight of the principal's actions (see page 139F), and this may well have been the source of the passage from Lord Bingham's speech cited above. But soon afterwards, counsel for the Crown again repeated the basic proposition that the liability of D2 depends on foresight that D1 would act with at least the intent to do GBH. He is recorded as submitting, at pp. 140H-141B:
‘Since the liability of an accessory who does not fall within the ‘basic’ accessory principle is determined by his foresight of the principal's actions, those actions being accompanied by the mens rea requisite to render them a crime, it is and should be sufficient to establish the liability of a secondary party for murder to prove that he had foresight that the principal would act with one or other of the specific intentions required to render the principal guilty of murder.’ (emphasis as in the original).
20. Second, it was an assumed premise in R. v. Rahman that the jury must have accepted a common purpose to cause really serious injury, which meant foresight that D1 would act with at least that intention. The appellant's only argument was not that he foresaw no intention to cause such injury, but only that D1's intention to kill had not been foreseen. There was therefore no occasion for their Lordships to address the question whether D2 is guilty even if he does not foresee that D1 will act with at least the intent to do GBH.”
That is a very helpful explanation of the decision of the House of Lords in the case of R. v. Rahman. The conclusion of Hughes L.J. at para. 36 set out previously in the course of this judgment where he identified the real question at issue, is worth repeating,:
“. . . if D1 is carrying a knife or a gun or a broken bottle, and uses it, . . . whether D2 knew he was carrying it and foresaw that he might (not would) use it. If D2 did know this, then ordinarily that will mean that D2 realised (foresaw) that D1 might act with intent to kill or do really serious injury, at least unless there is some proper evidential basis for asserting the possibility that D2 foresaw an intent to inflict no or minor harm.”
One can envisage a situation in which a principal persuades an accessory to assist in luring a victim to a remote location. The accessory knows that the principal is armed with a knife. As Hughes L.J. pointed out, ordinarily, that will mean that the accessory realised or foresaw that the principal might act with intent to kill or cause serious harm to the victim. Nevertheless, there may be an evidential basis for asserting that the accessory merely foresaw an intent to inflict no or minor harm. For example, if the principal tells the accesory that he wants to frighten the victim and is going to bring a knife with him for that purpose and the accessory assists him without realising or foreseeing that the principal intends to use the knife to inflict serious injury or with intent to kill then in those circumstances it would be open to a jury to conclude that the accessory was not guilty of murder.
In the Court of Criminal Appeal in Costa and Batista, the Court followed the principles of law set out in the case of R. v. Uddin referred to above. Those principles included at (p. 1008) the following:
“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 Reg. v. Powell; Reg. v. English [1997] 3 WLR 959. 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.”
Thus, the issue of foresight was a relevant factor in that case. There is obviously a difference between foresight of the acts of the principal and foresight of the intent of the principal. Foresight of an act of the principal will usually be indicative of intent. The critical point in Rahman was whether or not an accessory could be found guilty of murder in circumstances where the accessories knew that really serious harm was to be inflicted upon the victim but, because of the use of a knife to inflict the fatal injuries on the victim, it was argued that they were unaware that the principal had the intent to kill the victim even though they knew that he had the intention to inflict really serious harm and thus, it was argued, they should not be found guilty of murder. That proposition was not accepted by the House of Lords. I do not see that decision as being out of line or an excessive development of the law in the area of joint enterprise or accessorial liability.
It was suggested in the course of the submissions on behalf of the DPP in this case that the effect of Rahman was to dilute the mens rea required for an accessory to murder or as it was put in the written submissions, “that the mental element required for an accessory was something less than that required of a principal arising from Section 4” but I do not accept that that is the effect of the decision in Rahman nor do I think that there is any logical basis for suggesting that the mens rea for an accessory could be something less than that of a principal. It may be different - one may intend to kill and one may intend to cause serious injury but in either case each has the mens rea required under Section 4. It is not without significance that Rahman was concerned with foresight in the context of a “fundamental difference” argument.
The second scenario posited in this case, namely that the offence committed by the principal was reasonably foreseeable by the accessory is, in my view, in line with the jurisprudence in this jurisdiction as identified in cases such as DPP v. Costa and Batista which approved the principles of law identified in R v. Uddin. Insofar as the development of the law is concerned, the decisions in R. v. Rahman and R. v. A. are helpful statements of the law in relation to accessorial liability in the area of joint enterprise. It is important to remember the distinction between a case of accessorial liability per se and a case of joint enterprise. Obviously, it will be relevant in a case of joint enterprise to consider what the participants in the crime had agreed to do, tacitly or expressly. To that extent issues of foresight are very relevant. Thus if an individual participates in an assault which they know is intended to cause serious injury and death occurs, given that the principal would be guilty of murder if death ensued, it seems to me that having regard to the provisions of s.4, it follows as a matter of logic that the accessory should also be guilty of murder, even if the accessory did not realise that the principal actually assaulted the victim with intent to kill.
The case against the accused is that he assisted the principal, Mr. Noone, by luring the unfortunate Mr. McAnaspie down to the Tolka River. Thus, the question in this case is, in circumstances where the accused knew of a number of matters including the earlier altercation between Mr. Noone and Mr. McAnaspie, knew that Mr. Noone had armed himself with the half shears, whether he had realised or foreseen the use of the half shears by Mr. Noone with the intent to cause serious injury or to kill. In the course of the written submissions on behalf of the accused it was stated that:
“The crucial interview of the accused contains material on which, it is submitted, the learned trial judge would have been perfectly entitled to conclude that there was indeed present in the case the sort of ‘proper evidential basis’ on which the possibility arose at the height of the prosecution case that the accused wrongly foresaw an intent on his co-accused’s part merely to inflict minor or no real harm, on the basis of him not foreseeing that the principal would use the weapon involved at all.”
As was pointed out in R. v. A., if an accused knows that a co-accused is carrying a weapon then ordinarily that will mean that they realised (foresaw) that the principal might act with intent to kill or do really serious injury but it will be a matter for a jury to decide whether or not there is a proper evidential basis for asserting the possibility that the accused foresaw an intent to inflict no or minor harm and if, in fact, that was the situation. Counsel for the DPP submitted that it was a matter for the jury to decide on the evidence presented to them what was in fact foreseen by the accused in the present case and in that regard it would be part of the function of the jury to consider the inferences to be drawn from the evidence. I agree.
Conclusion
Having regard to the matters set out previously in relation to the decision of the learned trial judge to direct the jury to acquit the accused, I would allow the appeal, quash the acquittal of the accused and direct that the accused be re-tried. Insofar as the question of the extent of the application of the decision in R. v. Rahman is concerned I am satisfied that it clarifies the law in relation to the mental element required to establish the liability of an accessory involved in a joint enterprise in relation to murder. Accordingly, if an accessory assists the principal knowing that the principal is proposing to carry out an assault and that the principal is armed with a lethal weapon, then, the accessory ordinarily will be understood to have known or foreseen that the principal intended to seriously injure or kill the victim of the assault. However, I am not of the view that R. v. Rahman is authority for the proposition that the mens rea required for an accessory to murder is something less than that required of a principal under Section 4. The mens rea of the accessory and the principal may not be identical but provided each has the requisite intention required under Section 4, then, in each case, they would be liable for murder.
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