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Liability for the unforeseen consequences of a joint enterprise 1.

Secondary party still bear the liability even though principal did beyond what was agreed unless out of contemplation Sometimes the parties have a plan, express or implied, to achieve a common purpose but the plan misfires. Perhaps the victim dies unexpectedly when only a beating was intended by the principal, perhaps the principal deliberately goes beyond what was agreed or alters the agreed method, e.g. he stabs rather than beats or shoots the intended victim.

The basic principle is that a secondary party bears responsibility for any unexpected outcome of the joint enterprise if this arose from its execution. If it did not, because, say the principal deliberately deviated from the joint enterprise, he will not bear responsibility unless he contemplated such deviation by the principal although he may not have agreed to it.

Baldessare 1!"#$% jointly enterprise in joy ride with the common purpose driving dangerous- liable the accomplice of a joy rider was held jointly liable with his principal for manslaughter when the joyride ended in the death of a pedestrian. &iability hinged not upon the mere fact of complicity in the joyriding but a common purpose to engage in a particularly dangerous instance of it. The principal was driving without proper lights and at an excessive speed. The joint enterprise was, in other words, driving a car recklessly and at great speed. It followed that both were liable for the conse'uences.

v !nango ()#11*% joint enterprise even shooting each other ,1 shoot each other ,)
, ) still liable due to transfer malice

Shoot dead third party

the Supreme +ourt made a comparable ruling that where two people engaged in a gun battle with the intent to kill the other the dangerous joint enterprise$ both were liable for murder where one of their number accidentally killed a passer"by who was caught in the cross fire. The murderous intention which each entertained towards the other transferred #under the principle of transferred malice$ to the actus reus of the unlawful killing of the third party.

It did not affect liability that the secondary party, although complicit in the joint enterprise, happened to be the intended victim. Commentary: [not so important in problem question] This is a strange decision since it could hardly be argued that they had a common purpose to shoot the other and be shot at. If not there was no joint enterprise for which - could ta.e responsibility. /e was the intended victim of, not the assister or, the principal0s murderous intentions. See the dissenting judgement of &ord 1err on this. 2ore broadly, where there is a joint enterprise a participant will bear responsibility for those consequences which he contemplates as a possibility.

If ,) contemplate ,1 may .ill3intent cause serious harm, even though without agree to such conduct, still participate, will be liable to murder as well %yde and others 1!!1$ the three appellants had carried out a joint attack on the victim, who died from a kick to the head. &t was not possible to say who had actually struck the fatal blow or blows. The judge directed the jury that if all three intended to do grievous bodily harm, then they were all guilty of murder. If they did not but one of them decided to do it, then if either of the others could be shown to have foreseen the real possibility that that might be the result of the fight which he was engaged in, then he too shared in the responsibility and was guilty of murder.

4ll three were convicted of murder and appealed on the grounds that the judge had misdirected the jury. The +ourt of 4ppeal, dismissing the appeals, held that if '( realises that ') may kill or intentionally inflict serious injury [reckless], and continues to participate with ') in the venture, even though no agree to such conduct, that will amount to a sufficient mental element for '( to be guilty of murder if ,1, with the re'uisite intent, .ills in the course of the venture

%ui *hi"+ing 1!!)$% D2 could be convicted o murder based on his !"- contemplation even D1 may not have such intention to kill /ui +hi%2ing 5$, the defendant, was one of the group and was aware that , was carrying a length of metal pipe. Subse'uently , hit a man with the pipe and the man died. *onvicted with murder -ury could convict B of murder if they were satisfied that he thought there was a realistic possibility that , might use the pipe to cause serious injury.

The Privy +ouncil held that this was a perfectly acceptable direction6 there was no need to look for any authorisation or agreement, express or implied. &t was sufficient that the jury were satisfied that the defendant had deliberately lent himself to a venture in which he foresaw that there was a realistic possibility that the principal offender might intentionally cause grievous bodily harm. 4dditionally, #ui Chi- ma.es it clear that it is not necessary for the prosecution to prove that both parties contemplated the use of violence when they set out on their joint venture, though this will usually be the case

If ,) foresee ,1 intent to murder (27*, rather than only foresee death can be caused by accident and in fact ,1 did .ill (47*, ,) will be liable for murder even ,1 will not be liable for murder !" to !urder by D$ in joint enterprise only need to oresee by D2- might kill with intent to do so or with intent to cause grievous bodily harm% The principle in %yde was approved and applied by the /ouse of &ords in .owell and 'aniels (1!!!* .owell and 'aniels went with / to the house of a drug dealer to buy some drugs. The drug dealer was shot. The prosecution was unable to prove which of the three men fired the gun but contended that, if the third man fired the gun, .owell and 'aniels were guilty of murder because they knew that / was armed with a gun and

realised that he might kill or cause grievous bodily harm. They were convicted of murder and appealed. The %ouse of Lords dismissed their appeals, holding that it is sufficient to found a conviction for murder for a secondary party to have realised that in the course of the joint enterprise the perpetrator might kill with intent to do so or with intent to cause grievous bodily harm.

8ote that '( must foresee that ') will act with the requisite mens rea. o 0hat mean in murder, '( must foresee ') 1intent2 to kill, cause !B% &ord /utton commented9 o 3here two parties embark on a joint enterprise to commit a crime, and one party foresees that in the course of the enterprise the other party may carry out, with the requisite mens rea, an act constituting another crime, the former is liable for that crime if committed by the latter in the course of the enterprise. o 0he accessory to murder, however, must be proved to have been reckless, not merely whether death might be caused, but whether murder might be committed6

o he must have been aware, not merely that death or grievous bodily harm might be caused& but that it might be caused intentionally& by a person whom he was assisting or encouraging to commit a crime% o ecklessness whether murder be committed is different from, and more serious than, recklessness whether death be caused by an accident

This decision come out from public policy that ,) will not escape criminal liability

'pplied to (assist) crime as well In 7oo. (1!!"* the +ourt of 4ppeal held that the principle in these cases applies generally % not only where the parties ta.e part in a joint criminal enterprise but also where a secondary party lends assistance or encouragement before the commission of the crime 4ttorney -eneral0s reference 8o. " of )##:$ ()##;*$.

Still liable even ,) contemplate ,1 will .ill one victim in fact .ill ) as it is still within contemplation In eardon (1!!!*, ') had shot two men in a pub. 4long with a number of others, ,) #the appellant$ carried the unconscious and wounded men out to the pub0s garden. They returned to the pub while ,1 stayed with the dying men. %e then went back into the pub, told '( that one of the men was still alive and asked him to lend him his knife. '( did so. ') then went outside and fatally stabbed both men. '( was convicted of both murders and appealed.

The +ourt of 4ppeal dismissed his appeal. 5eldam &<, delivering the judgment of the +ourt, said9 o It is 'uite clear that whichever of the deceased the principal stabbed first, the use of the knife for the purpose of killing the deceased was plainly contemplated, and must have been contemplated, by the appellant when he handed the knife over. o 'id he foresee at least the strong possibility that if the principal found that the other deceased was still breathing and alive, he might use the knife in the same way, and if he did so was that an act by the principal of a type which this appellant foresaw but did not necessarily intend= o &n our view it was an act of that type.

/e concluded9 o In our view the jury, who had been properly directed, reached the only conclusion which they could % that the actions of +urray were within the scope of the appellant4s contemplation when he handed the knife over, and the fact that 2urray used the .nife in the foreseen manner twice as opposed to once is, in our view, immaterial. %is action in stabbing the second of the victims was an action of the very type that the appellant actually contemplated +urray would use the knife for. See also 5ad>a Starfield$ ()##!* and &ewis 7hys Thomas$ ()#1#*

). 0he level of foresight required% i contemplate the possibility then will be liable unless the risk so remote that D2 genuinely dismiss& only need to oresee what the consequence by the weapon but not the way lead into consequence In .owell and 'aniels6 5nglish, &ord /utton stated9 o The secondary party is subject to criminal liability if he contemplated the act causing the death as a possible incident of the joint venture, unless the risk was so remote that the jury ta.e the view that the secondary party genuinely dismissed it as altogether negligible. That mean even D2 contemplate the act will cause death, he will not liable if he genuinely dismissed it entirely as negligible However, in reality it will be rare case in the joint enterprise case

In +iah #,6i6$ ()##!*, it was held that '( need not foresee the precise events which unfolded. ,) was liable for the murder of ? by ,1 on the basis that he had foreseen the infliction of grievous bodily harm by weapons although he had not foreseen the precise manner in which the weapons came to hand. The fatal injury had been inflicted using a knife which had originally come into the possession of the victim as he was pursued through a restaurant .itchen.

7. 8oresight of an act of the type committed by ') i. '( foresee ') intent to kill by wood stick, but ') used the gun to kill which out of contemplation, then '( liable of murder ii. '( foresee ') intent to kill by wood stick but ') only intent to cause some injury, anyhow ') killed the 9, '( still liable :intent did not included in fundamental different rule; iii. '( foresee ') intent to cause serious harm by wood stick, but ') kill the 9 by gun out of contemplation, then '( will not be liable :fundamental different act; eason< there is various degree of !B%, wood stick may not so lethal %owever, if the wood stick is the lethal type then will be liable

iv. '( foresee ') intent cause !B% by knife, but ') kill 9 with gun out of contemplation, then '( may liable as knife and gun can cause !B% which is lethal 9. So, '( need to foresee the conduct :weapon; with ') intent to charged him murder '( no need to foresee the consequence 5g. '( only need to foresee ') use knife with ') intent to cause death=gbh, then will be liable for murder :'( no need to foresee ') used knife to cause gbh=death; &f '( foresee ') used wood stick with intent to cause injury, but ') used gun to kill. :then it is fundamental different;, '( will not be liable for murder &f '( foresee ') used knife with intent to cause injury, but ') used gun to kill. :although

fundamental different, but these ( serious injury is really serious injury which is fatal;, '( will be liable for murder as well ,ny weapon will cause death of course, the more important whether the unexpected weapon has greater lethal propensity 9i. &f '( foresee ') use wood stick with intent to in the way to cause !B% :fatal one; but ') use knife to kill 9, '( will be liable of murder as well, as '( foresee the equal dangerous situation by different act by weapon 0his point is combined the weapon used and lethal level of the weapon

*oresee the act committed by D$ by using the weapon& i the weapon used by D$ out o contemplation with greater lethal propensity then& D2 will not be liable or murder 4s we saw, from eardon, to be guilty under the /yde principle 4the secondary party must foresee an act of the type which the principal party committed4 +han @ing%siu v 7 (1!A:*6 Powell and ,aniels6 Bnglish (1!!1*$. In cases involving homicide the use by ,1 of a weapon is a significant factor in deciding whether the fatal acts were of a different type. If the character of the weapon used by the perpetrator was different from any weapon used or contemplated by the other parties % most importantly if it had a greater 4lethal propensity4 % the others attract no responsibility for the death unless it is proved that they knew or foresaw the likelihood of the use of such a

weapon Cddin (1!!A*6 Bnglish (1!!D*6 4nderson62orris (1!EE*$.

5nglish% D2 only oresee D$ will cause serious injury by wooden post& later D$ get out lethal weapon [kni e] and killed the +- D2 will not be liable or murder i he did not oresee the lethal weapon due to undamental di erent and unauthori,ed act the purpose of the joint enterprise in which he and another man, 3eddle, took part was to attack and cause injury with wooden posts to a police officer, Sergeant Forth. In the course of the attac. 3eddle produced a knife with which he stabbed Sergeant 8orth to death. The trial judge directed the jury that Bnglish was guilty of murder if he had foreseen that @eddle would act with intent to cause grievous bodily harm, even though he had not oreseen the use o the kni e. 5nglish was convicted of murder.

/is appeal to the +ourt of 4ppeal was dismissed and he appealed to the /ouse of &ords. The 'uestion certified for the opinion of the /ouse was as follows9 o Is it sufficient for murder that the secondary party intends or foresees that the primary party would or may act with intent to cause grievous bodily harm, if the lethal act carried out by the primary party is fundamentally different from the acts foreseen or intended by the secondary party= The appellant submitted that to be guilty under the principle stated in /yde the secondary party must foresee an act of the type which the principal party committed, and that in the present case the use of a knife was fundamentally different to the use of a wooden post.

0he %ouse of Lords allowed the appeal. Gn the evidence, the jury could have found that 5nglish did not know that 3eddle had a knife. The fact that both ') and '( had the intention to inflict serious harm on the victim was insufficient to make '( responsible for the death of the victim caused by the use of a lethal weapon used by ') with the same or shared intention. 0heir Lordships, quashed '(2s conviction for murder6 '( was liable for unusual conse'uences arising out of the joint enterprise but was not liable for the unauthorised act of ').

It was held that the secondary party would not be guilty of murder where he intended or foresaw that the primary party would or might act with intent to cause grievous bodily harm but the lethal act carried out by the primary party was fundamentally different from the acts foreseen or intended by the secondary party

ahman" undamental di erent cannot be the intention o It must often be very hard for jurors to ma.e a reliable assessment of what a particular defendant foresaw as li.ely or possible acts on the part of his associates. o &t would be even harder, and border on speculation, to judge what a particular defendant foresaw as the intention with which is associates might perform such acts. That mean it cannot fundamental different intention is not the big issue o &t is safer to focus on the defendant2s foresight of what an associate might do, an issue to which knowledge of the associates possession of an obviously lethal weapon such as a gun or a knife would usually be very relevant

+ontrast9 5nglish another reasoning9 if fundamental different but same dangerous, then D2 will still liable knife and gun is the same! /owever, as &ord /utton stated in other cases, if the weapon used by , is simply different to, but as dangerous as, the weapon which 5 had contemplated he might use, then B should not escape liability for murder because of the difference in the weapon. It should, for example, make no difference if g expected , to kill with a gun and , actually used a knife.

Bg. +ase9 !reatrex (1!!!*% D2 will be liable i he oresaw the way he did to + e"ually dangerous to the une-pected weapon [in this case& kicking and bar are the same equal dangerous perhaps] the appellant was one of a group of youths involved in an attack on a victim who died as a result of a blow from a bar or spanner. '( admitted kicking the deceased, but the fatal blow was administered by another youth, Bates. -reatrex appealed against his conviction of murder. The trial judge had ruled that participation and joint attac. with a shared intent to cause serious physical harm sufficed to render -reatrex and the others guilty of murder.

The +ourt of 4ppeal held that the judge should have directed the jury to consider whether !reatrex foresaw as a possibility the use by Bates of the bar or an equally dangerous weapon. &ord <ustice 5eldam stated9 o In deciding whether the actions of one participant are so fundamentally different the jury will have regard to all the circumstances and of course where one participant unknown to the others is carrying a lethal weapon such as a knife or revolver and uses it in a way which indicates that his actions go entirely beyond actions which were foreseen by the others, that is cogent evidence that what was done was substantially different from actions within the common purpose. 0he jury might have concluded that the shod foot was equally dangerous in the sense of being capable of inflicting really serious injury

o but as they had not been directed to consider that the appeal was allowed%

Fundamental different only related to the act but not to the intention, as long as ,) foresee ,1 intent to .ill or cause -5/, then ,) will be liable even ,1 did not has such intention and .ill in another unexpected way This 4fundamentally different act4 rule is justified on the basis that an intention to cause !B% does not necessarily entail an intention to cause injuries which are life" threatening. 0here are degrees of !B%. 5ut there is no justification for the rule where '( foresaw that ') might intentionally kill and ') did so. In such a case '( is party to the killing and will be guilty of murder. &t is immaterial whether the means adopted by ') were different from those contemplated by '(.

4s ,avid Gmerod observed in his commentary on 7 v Powell and 7 v Bnglish9 o :&;f B intends or foresees that , may act with intent to kill, it seems immaterial that he does it by one means rather than another. o >nlike !B%, there are no degrees of death. This view was accepted by the /ouse of &ords in ahman ()##A* in which &ord 7odgers stated9 o &f ') and '( agree to kill 9 by beating him to death with baseball bats, but, in the course of the attac., D1 pulls out a gun and shoots #, '( must still be guilty of murder.

Bxample case9 ?neecapping case< intent to !B% enough for murder but sometime depend on circumstances Plan to cause grievous bodily harm to ? by H.neecappingI firing a bullet into his .neecap$. @hat actually occurred was that ?Js throat was cut with a .nife with great force and gun%shot to the brain

ahman reasoning9 supporting ,) will be liable$ If '( realises without agreeing to such conduct being used$ that ') may kill or intentionally inflict serious injury, but nevertheless continues to participate with P in the venture, that will amount to a sufficient mental element for ' to be guilty of murder if ,1, with the re'uisite intent, .ills in the course of the venture unless i$ ,1 suddenly produces and uses a weapon of which '( knows nothing and which is more lethal than any weapon which ,1 contemplates that ,) or any other participant may be carrying and ii$ for that reason ')2s act is to be regarded as fundamentally different from anything foreseen by ,I1)! emphasis added$. So, ,) in the .neecapping will be liable as well as the gun will be same dangerous as the .nife cutting provided he did not .now ,1 has the .nife

4nother view9 (brea. in chain of causation if different man* &ord 7odgerJs speech ahman$ supporting the view that there been a break in causation between the assault on the victim, with the intention of inflicting grievous bodily harm, and his murder by cutting his throat9 in effect, it was if two defendants were on the were on of .neecapping the victim when two other men suddenly appeared and cut his throat.

4nother unforeseen case9 ,) will liable for unforeseen liability +ahmood This decision exemplifies the principle that 5 is not liable for a greater crime committed by 4 in the course of committing a less serious crime if the act which , did was materially different from any act foreseen contemplated by 5. , and B had participated in an unlawful enterprise where the conduct involved the taking of a car without the consent of the owner. Subse'uently, a police chase ensued which is a typical feature attendant to car thefts. In this case 4, the drive%abandoned the car whilst still in gear which led to the killing of a bystander, a small baby

This was held by the appellate court to be manslaughter on ,2s part but not by B who was liable only for the lesser offences under the Theft 4ct and 7oad Traffic 4ct. The +ourt or 4ppeal was of the view that B did not contemplate or foresee the greater offence. Thus, B was not responsible for the totally unforeseen consequence.

8o doubt a different outcome would have transpired if , had killed by means of high speed driving or through failing in adhere to a red light. ,2s conduct was treated as unauthorised by B, absolving 5 from liability for manslaughter.

:. 3hether the act is 1fundamentally different2 is a question of fact for the jury% spontaneous violence situation must be taken into account In @48laherty +antell L- noted9 o The statements in Powell and Bnglish and Cddin about types of weapons should not be seen as reflecting principles of law as opposed to 'uestions of evidence. o The <udicial Studies 5oard specimen direction in relation to the scenario in Bnglish treats the 'uestion whether use of a knife is fundamentally different from any act which the defendant realised the principal might do as a question of fact for the jury. o The principles set out in .ddin are not stated to be principles of law as opposed to matters of evidence, and it would be unfortunate if they crystallised as such.

o The result would be the creation of a complex body of doctrine as to whether one weapon for instance a .nife$ differs in character from another for example a claw hammer$ and which weapons are more li.ely to inflict fatal injury.

4nd in +ende6 ()#1#* the +ourt of 4ppeal pointed out that in cases of spontaneous violence it is unlikely that the parties thought carefully about the exact level of violence intended or foreseen. Toulson &< stated9 o In a case of spontaneous or semi"spontaneous group violence... it is highly unlikely that the participants will have thought carefully about the exact level of violence and associated injury which they intend to cause or foresee may be caused. o 4ll that a jury can in most cases be expected to do is form a broad brush judgment about the sort of level of violence and associated ris. of injury which they can safely conclude that the defendant must have intended or foreseen.

o They then have to consider as a matter of common sense whether .4s unforeseen act #if such it was$ was of a nature likely to be altogether more life"threatening than acts of the nature which ' foresaw or intended. It is a 'uestion of degree, but juries are used to dealing with 'uestions of degree. In Stringer ()#11* convictions for murder as secondary participants were upheld in relation to two defendants who, together with the principal offender, had chased a man before he was fatally stabbed by the principal offender. 0heir conduct in chasing the victim amounted to conduct assisting and encouraging the principal offender, they knew the principal offender had a knife and would have foreseen its possible use to kill or cause serious injury.

;. @ther charges if '( is not a party to killing if the acts of ') are fundamentally different from those foreseen If the jury conclude that the death of the victim was caused by the actions of one participant which can be said to be of a completely different type to those contemplated by the others, they are not to be regarded as parties to the death and are therefore neither guilty of murder nor manslaughter. 0hey may nevertheless be guilty of offences of wounding or inflicting grievous bodily harm with intent which they individually commit Cddin (1!!A*$.

8o manslaughter due to ,1 depart completely from what was contemplated see chart below In ,nderson and +orris (1!EE*, ') #,nderson$ killed 9 with a knife. The defence of ,) 2orris$ was that even though he too. part in a joint attac. with 4nderson to beat up the victim, he did not .now that 4nderson was armed with a .nife. In his summing up, the trial judge told the jury that they could convict 2orris of manslaughter even though he had no idea that 4nderson had armed himself with a .nife. The +ourt of 4ppeal held that this was a misdirection in respect of +orris and quashed his conviction for manslaughter.

&ord Par.er +<, delivering the judgment of the +ourt of 4ppeal, said9 o It seems to this court that to say that adventurers are guilty of manslaughter when one of them has departed completely from the concerted action of the common design and has suddenly formed an intent to kill [this point may not the big issue/see section below] and has used a weapon and acted in a way which no party to that common design could suspect is something which would revolt the conscience of people today.

A. 3here ') performs an act foreseen by '( but with a more serious intent 0ee the chart in the end- (when same act& but di erent intentmanslaughter)& i (di er act with di er intent-then no manslaughter)

5asic point9 Stewart and Schofield @hen two or more men go out together in joint possession of offensive weapons such as revolvers and .nives and the circumstances are such as to justify an inference that the very least they intend to do with them is to use them to cause fear in another, there is, in our judgment, always a likelihood that, in the excitement and tensions of the occasion, one of them will use his weapon in some way which will cause death or serious injury. &f such injury was not intended by the others, they must be acquitted of murder6 but having started out on an enterprise which envisaged some degree of violence, albeit nothing more than causing fright, they will be guilty of manslaughter.

1ut *right may not be guilty manslaughter due to undamental di erent $% &e 'o. ( )2**+,

!uilty of manslaughter but not murder due to ,) only foresee to the injury from what ,1 done @here the principal carries out the very act contemplated by the secondary party but with a more serious intent it was held in !ilmour ()###* that the secondary party is liable for the consequence to the extent of his own mens rea. ,) drove three men to a housing estate, .nowing that a petrol bomb was to be thrown at a property. Three children died as a result of carbon monoxide poisoning from the resulting fire.

'( submitted that it had been his belief that the petrol bomb had been intended to frighten the occupants of the house and that accordingly he had been unaware that the actual intention of those throwing the petrol bomb had been to .ill or cause grievous bodily harm. The +ourt of 4ppeal of 8orthern Ireland held that he was guilty of manslaughter.

Sir 7obert +arswell +< recognised that although there may be circumstances where the principal0s intent might alter the nature of the act committed, the 0basic principle0 was accurately expressed in the following hypothetical example, discussed in 5lac.stone0s +riminal Practice )###$9 o Suppose . and , agree that . will post a specific incendiary device to ?, , contemplating only superficial injuries to ? when he opens it but . foreseeing and hoping that the injuries will be serious or fatal. o &f 9 is killed as a result, . will clearly be guilty of murder, $ is clearly not guilty of murder as an accessory but should be guilty of manslaughter because the act done by P is precisely what was envisaged.

o 0he fact that . happens also to have the mens rea of murder is irrelevant because it does not change the nature of the act that he does or the manner in which he does it. 2hat D$ done still within the contemplation o D2& the only intent is di erent

,1 intent serious harm but ,) intend some harm but lead to ?Js death, still liable for manslaughter due to joint enterprise to inflict harm In &oberts, Day and Day ()##1* the +ourt of 4ppeal considered a situation where the participants in a joint enterprise all foresaw the same kind of physical violence being inflicted on their victim but differed in their intent. Two of them intended to inflict really serious injury by means of such violence. The third " +arc 'ay " intended or foresaw only that some harm might be done. @ne of the two who intended to do grievous bodily harm punched and kicked the victim, who fell, suffered a brain haemorrhage and died.

/e was, of course, guilty of murder. So also was the secondary party who, li.e him, intended or contemplated the infliction of the serious injury. 5ut what of the third participant, 2arc ,ay= 2anslaughter conviction upheld. &aws &<, delivering the judgment of the court, stated9 o (+ounsel for the appellant* submits he must escape altogether because he did not foresee a murderous state of mind would be harboured by his fellows... o It does not seem to us that that can be right. o In such a case there was a joint enterprise at least to inflict some harm, and that is not negated by the larger intentions of the other two adventurers.

o In our judgment in such a case there is no reason why the participants should not be convicted and sentenced appropriately as their several states of mind dictate. o That was what was done here. 2arc ,ay0s conviction is perfectly safe. %is appeal... is dismissed. 0his case can be distinguished with ,nderson and +orris that ') used the knife which was out of contemplation of '(. o Due to unauthori,ed act &n the present case, ') and '( still foresaw same kind of violence ie beat the 9 by punching and beating

Bo manslaughter as ,) did not foresee any injury3.illed even though .new ,1 had gun only for used to frighten, but in the end used to .ill ,1 (fundamental different* The issue was considered again in ,ttorney !eneral4s eference #Bo. 7 of (CCD$ ()##;* ,) sent two men to apply pressure to ?. '( knew that the men were armed with a gun and was aware that they might fire the gun to frighten 9. It was assumed that '( had not foreseen the possibility that 9 might be killed or injured. /e had contemplated the deliberate discharge of the firearm but not at ?. Gne of the men fatally shot ? in the head at point blan. range and was convicted of murder.

The 'uestion arose as to whether on the assumed facts '( was guilty of manslaughter. &t was held that he was not guilty. The 4ttorney -eneral referred the following 'uestion to the court9 o @here a secondary party to a joint enterprise contemplates that the carrying out of the joint enterprise will involve the commission of an act intended to frighten the victim for example by the discharge of a firearm$ and the principal carries out the act with an intention to kill or cause serious bodily harm thus causing the death of the victim, does the variation in the intent of the participants at the time the act is done preclude the act from being part of the joint enterprise or may a jury nevertheless convict the secondary party of manslaughter=

The +ourt of 4ppeal held that the principal4s act in firing the gun so as to .ill ? was of a fundamentally different character to any act contemplated by '(.

'( had foreseen the deliberate discharge of a loaded gun but not the act which caused the death was the deliberate discharge of a loaded gun deliberately pointed at ?. That was fundamentally different from what '( had foreseen. The court distinguished oberts, 'ay and 'ay on the basis that in that case the act was not fundamentally different from what 'ay had foreseen. The participants all foresaw the same kind of violence being inflicted on their victim, punching with the possibility of .ic.ing to follow.

7ejected the idea that intent ta.en into account to decide the fundamental different In ahman, ,) submitted that the jury should be entitled to take the intent of ') into account when deciding whether his act was fundamentally different from that foreseen by '(. 0he %ouse rejected the submission.

,) foresaw less harm by using .nife but in fact ,1 used to .ill, still liable on the basis joint enterprise by contemplate violence (same act but differ intent* In *arpenter, the +ourt of 4ppeal upheld the conviction for manslaughter, of a woman who foresaw the use of a knife to cause harm but not that it would be used with the intention to kill or cause serious injury. 4lthough what the defendant did was fundamentally different to what was contemplated, thus ruling out a murder conviction, it was not an all or nothing decision. +anslaughter remained available on the basis of a joint enterprise involving contemplated violence.

E. Liability for unforeseen consequences @here ,) is liable for the acts done by ,1 his liability extends to unusual or unforeseen consequences of ')4s acts. 4nd so if, for example, '( encourages ') to cause grievous bodily harm to 9 and 9 dies as a result, both will be guilty of murder ,ndersonF +orris(1!EE*$9 o ... where two persons embar. on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise, that that includes liability for unusual consequences if they arise from the execution of the agreed joint enterprise but and this is the cru- of the matter$ that if one of the adventurers goes beyond what has been tacitly agreed as part of the common enterprise, his co"adventurer is not liable for the consequences of that unauthorised act...

G. 0he secondary party may be liable for a more serious offence than the perpetrator There are circumstances where a secondary party is guilty of a more serious offence than the perpetrator. For example, if '( assists or encourages '), who suffers from an abnormality of mind, to kill 9, ')4s liability will be reduced to manslaughter on grounds of diminished responsibility, but '( will be guilty of murder see s.) :$ of the /omicide 4ct 1!;D$. 4nd in %owe (1!AD* the /ouse of &ords considered the following hypothetical situation9 o '( hands a gun to ') informing him that it is loaded with blank ammunition only and telling him to go and scare ? by discharging it. o 0he ammunition is in fact live, as ,) .nows, and ? is .illed.

o ,1 is guilty only of manslaughter. o @hat is the extent of ,)0s liability= &ord 2ac.ay, agreeing with the judgment of &ord &ane in the +ourt of 4ppeal that the previous decision of "ichards [$345] was wrongly decided, stated that9 o &t would seem absurd that :'(; should thereby escape conviction for murder... o (@*here a person has been .illed and that result is the result intended by (,)*, the mere fact that (,i* may be convicted only of the reduced charge of manslaughter for some reason special to himself does not, in my opinion in any way, result in a compulsory reduction for :'(;.

H. 0ransfer +alice In addition, the doctrine of transferred malice applies in cases of secondary liability as it does generally. Thus, if '( encourages ') to fatally shoot 9 and ,1 misses ? and inadvertently kills /, '( and ') will both be guilty of the murder of /. It would be different if ') deliberately killed /. >nless '( foresaw that ') might do so, he is not guilty of murder # eardon$.

Summary The mens rea of secondary liability re'uires proof that '( intentionally did an act which assisted, encouraged or procured the commission of the offence and he realised that it was capable of assisting, encouraging or procuring the offence. In addition it must be proved that at the time of the act of assistance or encouragement or procuring '( contemplated or foresaw the commission of the offence by '). It is not however necessary to prove that '( intended the offence to be committed, foresight will suffice.

2y commentary9 0ituation: If ,) contemplate ,1 will .ill3inflict serious harm but ,1 .ill ,) will be liable for murder o %yde 0ituation: If ,) contemplate to cause serious harm (not to endanger life* by using wood stic., but at the time, ,1 use the gun to shot ? to death Then ,) may not liable for murder if ,1Js action is out of ,)Js contemplation !reatrex 5ut ,1 for liable for other offences

0ituation: If ,) contemplate the cause death by wood stic., but at the time, ,1 use the gun to shot ? to death Then ,) will still be liable anyway ahman 0ituation: If ,) contemplate to cause serious harm by wood stic. but contemplate at the same time ,1 had the gun may be used to shot ? 5y the joint enterprise, ,) will still liable anyway. .owell and 'aniels

0ituation: If ,) contemplate use .nife to cause serious harm but at the time, ,1 use the gun to shot ? to death out of contemplation ,) still will be liable as the serious injury caused by .nife may lead to death as well, even though he did not contemplate the way lead to death used by ,) +iah #,6i6$ :(CCH;

!anslaughter issue 0ituation: Di erent 'ct di erent intent ,) beat ? in joint attac. and ,1 .ill ? with .nife out of ,) contemplation ,) will not liable for manslaughter as ,) had no intention to .ill o ,nderson and +orris 4nother situation9 ,) intent to frighten with gun without injury3death but ,1 .ill instead ,) not liable due to fundamentally different from contemplation o $% &e )'o. ( of 2**+,

0ituation: 0ame act contemplation but di er intent ,) foresaw the use of .nife to cause some harm but ,1 used the .nife to .ill ,) liable for manslaughter due to joint enterprise involve contemplated violence o *arpenter If ,) intent less harm by using the same method but ,1 intent to cause more serious harm by using the same method and ? died ,) liable for manslaughter as joint enterprise to inflict some harm o oberts, 'ay and 'ay ,) intent to frighten using firebomb but ,1 intent to .ill, in the end ? is .illed ,) liable for manslaughter due to act done by ,1 is precisely envisaged

!ilmour