Vasuitoga v State [2016] FJSC 1; CAV001.2013 (29 January 2016)

IN THE SUPREME COURT OF FIJI
AT SUVA
[APPELLATE CRIMINAL JURISDICTION]

Petition for Special Leave to Appeal
No. CAV001 of 2013

IN THE MATTER OF AN APPEAL
from the decision of the Court of Appeal
No. AAU0036/2007 on appeal from
High Court Case No. HAC008/2006

BETWEEN:

SAKIUSA BOSE VASUITOGA; and
SOLOMONE QURAI
PETITIONERS

AND:

THE STATE
RESPONDENT

CORAM: Hon. Mr. Justice Suresh Chandra, Justice of the Supreme Court
Hon. Mr. Justice Daniel Goundar, Justice of the Supreme Court
Hon. Mr. Justice Salesi Temo, Justice of the Supreme Court

COUNSEL: Mr. J. Savou for the 1st Petitioner
Ms M. Muir & Mr. P. Katia for the 2nd Petitioner
Ms M. Fong for the Respondent

Date of Hearing: 14 November 2013

Date of Judgment: 29 January 2016

JUDGMENT

Goundar JA:

Background

[1] This is a timely application for special leave to appeal against the judgment of the Court of Appeal affirming the petitioners' convictions and dismissing their appeals. The petitioners were jointly charged with murder (count 1) and robbery with violence (count 4). It was alleged that the petitioners murdered Mohammed Azim Khan (aka Jimmy) while committing a robbery. Petitioner Vasuitoga (aka Boss) faced two additional charges - demanding money with menace (count 2) and act with intent to cause grievous bodily harm (count 3). It was alleged that Vasuitoga demanded money with menace from the victim, Ashwin Kumar (aka Pinky), and he acted with intent to cause grievous harm to the victim, Kamlesh Pillay. On the 5th count, petitioner Qurai (aka Stone) and a third accused were jointly charged with theft from the victim, Sai Nagendran Sami. Both Qurai and his accomplice pleaded guilty to count 5 before the trial commenced. The prosecution alleged that these offences were committed in the course of the same transaction. The petitioners were sentenced to life imprisonment for murder, to be served concurrently with the sentences imposed for other offences.

Facts

[2] The alleged charges arose on the night of 11 February 2006 at a residential suburb called Kewal's Yard in Nasinu. At trial, it was not in dispute that Khan was stabbed with a kitchen knife, as a result of which he died. Khan sustained numerous injuries to his body. He was stabbed twice. He had a 2.5cm x .8cm stab wound on the lower half of the right arm which was 3cm muscle deep, and a 2.5cm x .8cm penetrating stab wound on the right chest that caused his vital organs (liver and lungs) to collapse. Details of this and other injuries were contained in the post mortem report, which was tendered at the trial.

[3] The victim on count 3, Pillay was also stabbed with a kitchen knife. He sustained a 5cm long wound on his right upper abdomen. His medical report revealed that the injury required exploratory surgery and stitching. Pillay showed the trial judge and the assessors the scar from his wound in the course of his evidence. His evidence was that on the night of 11 February 2006 at around 10pm, he was at his home when he heard a commotion. When he came outside, he saw his brother Kumar being attacked by two boys on the roadside. When Pillay intervened, the boys turned around and attacked him. One of the boys punched him and the other stabbed him in the abdomen with a knife.

[4] Kumar's evidence was that he was with Khan and Mohammed Moshin at Kewal's Yard looking for their friends Sai Nagendra Sami and James Lal, when they were attacked by three boys. Kumar's attacker held him by his collar and pointed a knife at him saying "if you shout I'll put the knife in you". The attacker demanded money. At that point someone punched him and he fell down. While he was on the ground, someone pulled off his canvas shoes. He saw Pillay being punched or knifed in the stomach and he also fell down.

[5] Moshin's evidence was that all three of them were attacked by three Fijian boys. Moshin was punched and he fell down. He could not identify his attackers because it was dark. He saw someone punched Khan. The attackers smashed bottles to deflect resistance from the victims. When the attackers left, Moshin found Khan in a nearby drain, bleeding.

[6] Evidence was also led that the petitioners were involved in theft of beer and coke near a shop shortly before the incident at Kewal's Yard. This evidence concerned count 5 and was mainly uncontested.

[7] The prosecution also led evidence of the caution statements of the petitioners. In his caution interview, Vasuitoga admitted stealing beer and coke from two people. He admitted attacking three victims at Kewal's Yard in the company of others with the intention to rob them. He admitted threatening the first victim by placing a knife on his neck. He admitted stabbing the second victim with a knife for money. He admitted stabbing the third victim twice to save himself when the victim ran with a stick to hit him.

[8] Vasuitoga gave evidence at the trial challenging the voluntariness of his caution interview. He said he was assaulted by police and that the contents of his interview were fabricated. In the Summing-Up, the trial judge summarised Vasuitoga's evidence as follows at p.18:

"He said that on the 11th February 2006, he and his friends were drinking at the house of Amania from 4 pm until nightfall. Later he, with the 2nd accused and another came to the black market at Secala Road. He saw two Indian boys buying beer and Coke and followed them because they wanted to rob them of the beer. They robbed them then crossed over to Kewal's Yard. They then met 4 other Indian men and they robbed them also. One of the men he robbed had a scuffle with him and in the scuffle, pulled the Accused's t-shirt over his head. He heard the noise of other people rushing to the scene. He took out the knife he had taken from Amania's house which was in his back pocket and swung the knife. He did not know whether the knife struck the man or not. The man held his singlet and the Accused left it there. He did not know whether the knife struck the man or not. He turned around and another person came and hit him with a stick. The Accused lifted his arm to defend himself and his hand had a knife in it. He then left the scene and joined the drinking party. During this incident he did not see the 2nd Accused nor what he was doing. He left the knife at the roundabout and went home."

[9] Only Qurai's charge statement was admitted in evidence. He said he did not hit Khan but another person with the plastic beer bottles he was holding. He said he did not take the money from the pocket of his victim but that the victim took the money out of his pocket and threw at him. Qurai's defence was that he may have been involved in the theft near the shop, but he was not involved in the robbery at Kewal's Yard. He also contended that there was no evidence to show that he knew that Vasuitoga had a knife and would use it on the deceased. He also contended that there was no evidence that he had assaulted the deceased with a beer bottle and that his charge statement did not clearly state that he had robbed the deceased of $12.00.

[10] After the Summing Up was delivered, the three assessors returned within 45 minutes with the unanimous opinions that the petitioners were guilty as charged. The trial judge agreed and convicted the petitioners.The petitioners appealed against their convictions to the Court of Appeal.

Proceedings in the Court of Appeal

[11] Vasuitoga's appeal was filed by his trial counsel, Mr. Vosarogo. Subsequently, an amended notice was filed on 1 April 2009 containing the following three grounds of appeal:

1. That the learned Judge erred in law when he (sic) failed to direct the assessors on the issue of the subjective aspect of self defence as a matter that the Assessors were entitled to consider whether the defence of self defence were made out; and

2. That the learned trial Judge erred in law and in fact to direct the assessors fairly on the case of the Appellant regarding his defence of self defence; and

3. That the learned trial judge erred in law and in fact when she failed to put the Appellant's claim of assault fairly to the Assessors.

[12] On 23 July 2010, Fernando JA gave a written ruling allowing Vasuitoga to proceed on the first ground of appeal as of right because it involved a question of law alone (see, section 21(1) (a) of the Court of Appeal Act, Cap. 12.) The remaining two grounds involved a question of mixed law and fact. Fernando JA refused leave on those two grounds.

[13] By the time Fernando JA delivered his ruling, there was a change of counsel. Ms Malimali was the new counsel. On 21 April 2011, Ms Malimali filed skeletal submissions addressing the only ground on which the appeal was allowed to proceed as of right. On 9 May 2011, Ms Malimali filed further written submissions in which she raised an additional ground of appeal, that is, "the Learned Trial Judge erred in failing to put the defence of SELF DEFENCE to the assessors in relation to Count 1".

[14] The question whether the trial judge should have directed on self-defence on the charge of murder was a question of mixed law and fact. Vasuitoga was required to obtain leave before the ground could be considered. It is not clear whether Ms Malimali made any attempt to amend the Notice of Appeal by adding a fresh ground of appeal or renew the application for leave on a fresh ground of appeal that involved a question of mixed law and fact before the Full Court.

[15] On 6 November 2012, the Court of Appeal heard Vasuitoga's appeal. Unfortunately, we do not have the transcript of the proceedings in the Court of Appeal. There is nothing in the Court of Appeal judgment to suggest that at the hearing, Ms Malimali pursued the fresh ground of appeal or applied for leave to pursue the fresh ground of appeal. The Court of Appeal considered only the ground that was sanctioned by Fernando JA to be a question of law alone (see, para [4] of the judgment). Vasuitoga's sole ground of appeal was rejected by the Court of Appeal.

Criteria for special leave

[16] The legal parameters for the grant of special leave in criminal appeals are governed by statute. Section 7(2) of the Supreme Court Act 1998 and section 7(2) of the Administration of Justice Decree 2009 (which applied when the petitions were filed) provide:

"In relation to a criminal matter, the Supreme Court must not grant special leave to appeal unless-

(a) a question of general legal importance is involved;

(b) a substantial question of principle affecting the administration of criminal justice is involved; or

(c) substantial and grave injustice could otherwise occur."

Vasuitoga's petition for special leave

[17] Vasuitoga's initial petition was filed in person. Subsequently, he engaged legal aid to represent him. Mr. Savou filed the following ground upon which he seeks special leave:

"The Court of Appeal inadequately approached the error of the Trial Judge when she had failed to direct the Assessors on the issue of the subjective aspect of self-defence as a matter that the assessors were entitled to consider whether the defence of self-defence was made out."

Directions on self-defence

[18] In her Summing-Up, the trial judge confined her directions on self-defence to count 3 only. This count involved the victim, Pillay. Vasuitoga did not pursue his complaint regarding whether the trial judge should have given the directions on self-defence on the murder charge in the Court of Appeal. In other words, the murder conviction was unchallenged in the Court of Appeal. Gates CJ said in Kamlesh Kumar v The State unreported Cr App No. CAV0001/09; 21 August 2012 at [20] that "such an approach will not find favour with this court unless the omitted ground is compelling and meets the criteria for special leave of section 7(2)".

[19] The question posed for special leave is whether the Court of Appeal adequately dealt with the alleged inadequacy in the trial judge's directions on self-defence. The alleged inadequacy related to the subjective aspect of self-defence, which was the sole ground of appeal in the Court of Appeal.

[20] In his disputed caution interview, Vasuitoga said he stabbed the first victim for money, and he stabbed the second victim to save himself from being assaulted with a stick. At trial it was not established by way of direct evidence which one of his victims ran with a stick to hit him. Vasuitoga claimed that the contents of his caution interview were fabricated by the police. In cross-examination of the prosecution witnesses he did not suggest that one of the victims ran with a stick to hit him.

[21] Vasuitoga's evidence was that he got blindfold in the scuffle when one of the victims pulled his t-shirt over his head and when he heard other people approaching him he swung the knife to defend himself. When he was leaving the scene and came to the footpath to Nasinu, another person hit him with a stick, at which point he lifted his arm to defend himself and his hand had a knife in it. But in cross-examination, Vasuitoga admitted that when the man with the stick approached him he was able to fend off the stick with his hand and that the man was not able to hit him.He denied stabbing his victims. In this regard, there was a significant departure from what he had said in his caution interview.

[22] In closing address, Vasuitoga's trial counsel did not suggest that Vasuitoga acted in self-defence on the charge of murder. On the charge of murder, counsel submitted that Vasuitoga acted without malice aforethought. The only reference to self-defence was made in respect to the assault on Pillay, the victim on count 3. This submission suggested that Vasuitoga was approached with a stick by Pillay– an inference that was available on the evidence.

[23] When the prosecutor presented his closing address, he addressed self-defence in respect to the assault on both, Khan who was killed and Pillay who was seriously injured.

[24] After the Summing Up was delivered, Vasuitoga's trial counsel did not seek any re-directions. Mr. Vosarogo could have raised with the trial judge the need for direction on self-defence on the murder charge if there was evidential basis for the defence to be considered although not expressly raised for tactical reasons. Appellate courts will not look favourably on cases where counsel have held their seats, hoping for an appeal point, when issues in directions should have raised with the trial judge (Raj v The State unreported Cr App No. CAV003 of 2014; 20 August 2014 at [35] per Gates CJ). Due to the change of counsel on appeal, we cannot ascertain why the trial counsel held back and did not seek any re-directions.

[25] The reasons for the judgment in the Court of Appeal were given by Basnayake JA and Madigan JA. Calanchini P agreed with the conclusion that the appeals should be dismissed. Mr. Savou contends that Basnayake JA and Madigan JA have given contradictory reasons for rejecting Vasuitoga's ground of appeal. Basnayake JA referred to the impugned directions and concluded that there was not an iota of evidence to support the claim of self-defence by the petitioner. For that reason, the ground of appeal was rejected.

[26] The impugned directions on self-defence are at pp 7-8 of the Summing-Up:

"The 1st Accused has also raised the issue of self-defence in relation to Count 3 on the information. He said that Kamlesh attacked him with a stick, that he deflected it with his hand and that his hand had the knife which struck him.

The law of self defence is this. A person who is attacked may defend himself or herself, but he /she may only do what is reasonably necessary. The questions for you to decide are whether the accused was indeed attacked by Kamlesh Pillay, whether he swung the knife to protect himself, and whether the use of knife was necessary and in proportion to the necessities of the situation. Of course you must also consider that the incident must have taken place quickly and in the dark and in deciding what is reasonable self-defence you are entitled to take into account the physical characteristics of the accused and Kamlesh Pillay as well as the other circumstances of the case. It is for the prosecution to prove that the 1st Accused was not acting in reasonable self-defence and you must be satisfied of this beyond reasonable doubt"

[27] Madigan JA's reasons are more detail. Madigan JA agreed that the trial judge did not address the assessors on the subjective limb of the self-defence but his Lordship concluded that Vasuitoga was not prejudiced by the error because self-defence was not available to him on the facts of the case, and therefore, the limited direction on self-defence was favourable to him.

[28] It is settled that when an accused relies on self-defence, the trial judge should direct the assessors to consider whether the accused believed that his actions were necessary in order to defend himself and whether he held that belief on reasonable grounds. As the Privy Council said in Palmer v The Queen [1970] UKPC 2; [1971] AC 814, 831-832:

"The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable ground that it was necessary in self defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal."

[29] In State v Li Jun unreported CAV0017/2007S; 13 October 2008 Sackville JA referred to the English and Australian authorities on self-defence and said at [46]:

"It is important to appreciate that the test stated in Zecevic is not wholly objective. It is the belief of the accused, based on the circumstances as he or she perceives them to be, which has to be reasonable."

[30] We also refer to what Lord Lowry CJ said in R v Browne [1973] NI 96 which is cited in the unreported decision of the English Court of Appeal of Balogun [1999] EWCA Crim. 2120. Lord Lowry said at p 106:

"To justify killing or inflicting serious injury in self-defence the accused must honestly believe on reasonable grounds that he is in immediate danger of death or serious injury and that to kill or inflict serious injury provides the only reasonable means of protection."

[31] The question is whether it was open on the evidence for the Court of Appeal to conclude that self-defence was not available to Vasuitoga. Vasuitoga's case was that he only swung the knife to ward off Khan when his t-shirt was pulled over his head and he did the same to fend off the stick when Pillay approached him. He denied stabbing the victims. On Vasuitoga's own evidence he could not reasonably have justified the conclusion that he honestly believed on reasonable grounds that he was in an immediate danger of death or serious injury and that to kill or inflict serious injuries was the only reasonable means of protection. In view of the way that Vasuitoga put his case, it is surprising that the trial judge gave a direction on self-defence on count 3.

[32] It makes no sense to allow an accused who engages in a violent crime to plea self-defence when his victim resists or retaliates. Victims of violent crimes are justified to retaliate or to defend themselves, not the perpetrators of violent crimes. We endorse what was said by the Australian High Court in Zecevic v DPP (Vic) [1987] HCA 26; (1987) 162 CLR 645; 71 ALR 641; 25 A Crim R 163 (at 664; 654; 175):

"A person may not create a continuing situation of emergency and provoke a lawful attack upon himself and yet claim upon reasonable grounds the right to defend himself against that attack."

[33] This is not to say that a plea of self-defence is not available to an original aggressor under any circumstances. When the original aggressor pleas self-defence when his victim retaliates, the question is whether the retaliation is such that the accused is entitled to defend himself. This principle was endorsed in the Scottish case of Burns v HM Advocate [1995] SLT 1090 at 1093H:

"The question whether the plea of self-defence is available depends, in a case of that kind, on whether the retaliation is such that the accused is entitled then to defend himself. That depends upon whether the violence offered by the victim was so out of proportion to the accused's own acting as to give rise to the reasonable apprehension that he was in an immediate danger from which he had no other means of escape, and whether the violence which he then used was no more than was necessary to preserve his own life or protect himself from serious injury."

[34] Even if it had been Vasuitoga's case that he had intentionally stabbed Khan and Pillay in self-defence, we do not think that the assessors and the trial judge could reasonably have concluded that he acted or might have acted in self-defence. Khan was justified to retaliate when the petitioner attacked him in order to rob him. Pillay was justified to defend his brother and friends when he saw they were being attacked. The resistance offered by the victims was not so out of proportion to the petitioner's conduct as to give rise to the reasonable apprehension that he was in an immediate danger of death or serious injury. The only reasonable view of Vasuitoga using the knife was that he was not acting in self-defence, but as an aggressor in pursuit of his criminal intention to rob.

[35] For these reasons we find that it was open on the evidence for the Court of Appeal to conclude that self-defence was not available to Vasuitoga and the error in the directions by the trial judge did not prejudice him. The threshold requirements for special leave have not been reached.

Qurai's petition for special leave

[36] Qurai was convicted on two charges. His petition concerns the murder conviction only. At trial, the murder conviction was based on the principle of joint enterprise. Qurai advances the following ground for consideration for special leave:

..."that the learned Judges erred in law in failing to quash his conviction where the Prosecution failed to produce evidence to the requisite standard of proof beyond a reasonable doubt at the High Court trial that there was a joint enterprise between the principal offender, Sakiusa Bose, and the Petitioner and that the fatal injury to the deceased occurred during that joint enterprise".

[37] In crafting his arguments for special leave, counsel for the petitioner submits that Fiji's common law on joint enterprise is vague and this Court's guidance on the proper interpretation and scope of murder by joint enterprise would be of considerable legal importance to the application of this law, particularly whether its scope is narrowed by following the approach in the English case R v Powell (Anthony) and English (1991) 1 AC 1 where it was held that even if an alleged accomplice intended or foresaw that the principal would or might act with the men's rea for the further offence, he cannot be convicted as a party to that offence if the principal's act was fundamentally different from the acts intended or foreseen by the alleged accomplice.

Joint enterprise

[38] As far as the murder charge was concerned, the prosecution attached criminal responsibility on Qurai pursuant to section 22 of the Penal Code, Cap. 17. Section 22 provides:

"When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence."

[39] The question is what the scope of section 22 is when the charge is murder. Section 22 has two limbs. The first limb requires proof that the accused formed a common intention with another to prosecute an unlawful purpose. The second limb requires proof that in the prosecution of the unlawful purpose an offence is committed of such a nature that its commission was a probable consequence of such purpose.

[40] In case of murder, the subjective element that the prosecution is required to prove is that the secondary party contemplated and foresaw the probability of death or infliction of serious harm on the deceased in the execution of the planned unlawful purpose. This principle was enunciated by the Privy Council in Chan Wing-siu and others v The Queen [1984] UKPC 27; [1984] 3 ALL ER 877 and followed by the courts in Fiji in Kumar and others v R [1987] S.P.L.R. 131, 134, Pauliasi Nacagilevu v The State unreported Cr App No. AAU0058 of 2010; 14 August 2015 at [23] and Eparama Niume and another v The State unreported Cr App No. AAU0106 of 2011; 2 October 2015 at [23].

[41] Various tests have been formulated by the courts to determine what was contemplated by the secondary party in pursuance of an unlawful purpose. In Johns v R [1980] HCA 3; (1980) 143 CLR 108, 130-13, the High Court of Australia endorsed the test as "an act which might be done in the course of carrying out the primary criminal intention – an act contemplated as a possible incident of the originally planned particular venture". In a later case of Miller v R (1980) 55 ALJR 23, the High Court of Australia spoke of contemplation by the parties of a substantial risk that the killing would occur. In R v Gush [1980] 2 NZLR 92, the New Zealand Court of Appeal preferred the test "an event that could well happen".

[42] In Chan Wing-siu, the Privy Council considered the various tests and concluded that no one test is exclusively preferable because the question is not one of semantics. Sir Robin Cooke who wrote the principal judgment said that all that is required is that the prosecution must prove the necessary contemplation beyond reasonable doubt, although that might be done by an inference from all the admissible evidence led at the trial including any explanation the accused gave in evidence or in a statement put in evidence by the prosecution. At the end of the day, it can only be for the jury to determine any issue of that kind on the facts of the particular case.

[43] The English common law principles on criminal responsibility for murder under the doctrine of joint enterprise correspond closely with section 22 of the Penal Code, Cap. 17. Of course, there is more scope for the development of the principles governed by the common law as opposed to the principles governed by statute. The basic common law principle is that when two or more people plan to murder someone and if the plan is executed, both are liable, regardless of who actually inflicted the fatal injury. The English jurisprudence gets complicated when there is no plan to murder, but in the course of carrying out an unlawful purpose, one of the participants murder. In R v Powell (Anthony) and English [1999] 1 AC 1, the House of Lord considered the question of secondary liability for murder when the secondary party may not have known that the principal was armed with a knife when they carried out an assault and endorsed the knowledge-of-the-weapon test that requires the secondary party to be aware of the presence of either the weapon actually used or an equally lethal weapon.

[44] The knowledge-of-the-weapon test posed some difficulty in practice and was reconsidered by the House of Lords in R v Rahman [2008] EWHC 124; [2009] AC 129. In this case, four defendants attacked the victim armed with blunt instruments but the actual cause of death was stab wounds. The principal offender was not identified. All four defendants denied knowledge of a knife being used. Their main complaint was that the trial judge had declined to direct the jury that they should only convict a defendant of murder if satisfied that he had foreseen that one of the group would attack the victim with the intention to kill. The House of Lords rejected this complaint and the majority summarised the law at [68] in this way:

"If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the venture unless (i) A suddenly produced and uses a weapon of which B knows nothing and which is more lethal than any weapon which B contemplates that A or any other participant may be carrying and (ii) for that reason A's act is to be regarded as fundamentally different from anything foreseen by B." (per Lord Brown).

[45] The question whether the English common law principles on secondary liability for murder apply to secondary liability for murder governed by statute was considered in detail by the Supreme Court of New Zealand in Mahana Makarini Edmonds v The Queen [2011] NZSC 159 (Elias CJ, Blanchard, Tipping, Mcgrath and William Young JJ). The issue for the Supreme Court was whether the trial judge was required to direct the jury that they could only find the appellant guilty of manslaughter if sure the appellant had known that the principal was carrying the lethal weapon – knife. The Supreme Court held that such direction was not required under section 66(2) of the Crimes Act 1961 (NZ) that governed secondary liability for murder in New Zealand. The reasons for the judgment were given by Young J, who said at [47]-[52]:

"[47] The approach of New Zealand courts to common purpose liability must be firmly based on the wording of s 66(2). That section recognises only one relevant level of risk, which is the probability of the offence in issue being committed. If the level of risk recognised by the secondary party is at that standard, it cannot matter that the actual level of risk was greater than was recognised. It follows that there can be no stand-alone legal requirement that common purpose liability depends on the party's knowledge that one or more members of his or her group were armed or, if so, with what weapons. As well, given the wording of s 66(2), there is no scope for a liability test which rests on concepts of fundamental difference associated with the level of danger recognised by the party. All that is necessary is that the level of appreciated risk meets the s 66(2) standard.

[48] We accept, however, that there are circumstances in which a knowledge-of-the-weapon direction may be required as part of the judge's discussion of the evidence, in particular in relation to:

(a) establishing the extent of the common purpose;

(b) deciding whether the party recognised that the commission of the offence was a probable consequence of the commission of the common purpose; and

(c) determining whether the offence committed by the principal was in the course of the implementing of the common purpose.

As we will explain, the first two respects are closely associated and the third is of less significance than the other two.

[49] The common purpose which is left to the jury is largely for the prosecutor to define. In a group violence case, there will often be a decision to be made as to where to pitch the alleged common purpose in terms of criminality. In this case, the common purpose was pitched at a high level of criminality – an intention to inflict serious violence. But the prosecutor could also have pitched it much lower, for instance to assault the deceased and the other members of his group. The lower the criminality of the alleged common purpose, the easier it will be to establish, but perhaps the harder it will be to show that the ultimate offence was recognised to be a probable consequence of its implementation. The higher the criminality of the alleged common purpose (and thus the closer it is to the offence eventually committed), the more difficult it may be to establish that particular defendants formed the intention to prosecute that common purpose, but the easier it will be to infer that such defendants (that is, those who did form that intention) knew that the ultimate offence was a probable consequence of its implementation. For instance if the Crown can establish that the common purpose was to attack the victim with baseball bats, it will usually not be difficult for the jury to infer that anyone who was a party to that common purpose would have realised that death or serious injury (depending on the consequences for the victim and the charges laid) was a probable consequence of its implementation.

[50] Where the alleged party can be shown to have known of the presence of weapons when the fracas started, it will usually be easy to infer that he or she was party to a common purpose which extended to the use of those weapons. Whether the common purpose should be treated as confined to such use will depend on the circumstances.

(a) In some cases, evidence that the alleged party was either carrying a weapon or knew that other members of the group were armed may be the only evidence that the alleged party either (a) shared the common purpose alleged or (b) appreciated that the ultimate offence was a probable consequence of its implementation.

(b) In other cases, the common purpose may be best assessed by reference to the results the defendants intended to bring about. Thus the evidence may show that the defendant was a party to a common purpose to inflict serious and potentially life threatening violence in whatever way was convenient, including, say, kicks to the head. In such a case, the alleged party could still be found guilty of murder even if the fatal injury was inflicted not by kicking but rather with a tyre lever which, unbeknown to that party, one of the other members of the group had brought to the fracas.

[51] We recognise that there may be cases where the use by one member of a group of a weapon which other members of the group had not known about may conceivably justify the conclusion that the offence committed involved such a departure from the common purpose as not properly to be regarded as occurring in the course of its implementation. But providing the Crown can establish a relevant and sufficient common purpose and a recognition that the offence ultimately committed was a probable consequence of its implementation, it is difficult to conceive of a situation where the nature of the weapon used would be of controlling significance in determining whether the offence occurred in the course of implementing the common purpose.

[52] It follows from this discussion that there is no legal requirement for a knowledge-of-the-weapon direction in a s 66(2) case. Whether such a direction is practically required will depend very much on the particular circumstances of the case and the particular charge which the alleged party faces".

[46] We are persuaded to follow the New Zealand's approach to secondary liability for murder because section 66(2) of the Crimes Act 1961 (NZ) corresponds closely with section 22 of the Penal Code, Cap. 17. At trial, Qurai disputed both limbs of section 22. After close of the case for the prosecution, Qurai's trial counsel applied for a verdict of acquittal saying there was no evidence that Qurai either jointly or alone committed either of the offences charged. The trial judge rejected this application saying there was some evidence of a robbery on the deceased, and although there was no direct evidence of a common intention to attack the deceased, there was sufficient evidence (if it was accepted by the assessors as being reliable) from which an inference could be drawn that there was a common intention to attack the deceased, and the death of the deceased was a probable consequence of that common intention.

[47] Qurai elected to remain silent and not call any witnesses after his application for a verdict of acquittal was rejected by the trial judge at the no case to answer stage. This decision was clearly within his right. The effect of the decision was that the assessors and the trial judge had to decide Qurai's charges based on the prosecution evidence only.

[48] In the Summing-Up, the trial judge dealt with the principle of joint enterprise as it applied to Qurai by referring the assessors to the wordings of section 22 of the Penal Code, Cap. 17, and by giving an example at p. 6:

"Let me give you an example. If a group of men decide to break into a house together carrying weapons, and they all know that the house is occupied, and during the break-in one of the men uses a weapon on an occupant of the house causing his death, then each of the burglars are guilty of murder even if the other never laid a hand on the deceased. This is a legal doctrine of joint enterprise. However, if they broke in carrying no weapons and one of them took a knife from the kitchen, and it was believed that the house was unoccupied, then all the others are not guilty because the death of an occupant was not a probable consequence of breaking into an occupied house without weapons. So you have to ask yourselves in relation to the accused in this case:

1. Did each accused have a common intention to do something unlawful together?

2. Did they execute that unlawful plan?

3. In the course of that plan, did the offences in Courts 1 and 4 occur?

4. Is the commission of these offences a probable consequence of the planned offence?

If you are satisfied of all these matters beyond reasonable doubt, then you may find each accused guilty of the offences charged even if one or other of them did not actually do the act that constituted the offence".

[49] The trial judge returned to the issue of joint enterprise when she summarised Qurai's case at pp 22-23 of the Summing Up:

"For the 2nd Accused, was he part of a joint enterprise with the 1st Accused in relation to the attack on Mohammed Azim. If they both planned to rob persons earlier on, on Kings Road, was the Kewal's yard incident part of the same unlawful plan or was it a separate incident for which there was no common intention? Was there a joint attack on the deceased and his friends or did the 1st Accused attack the deceased alone and in a separate incident to the attacks on Kamlesh Pillay and Ashwin Kumar?

Was the death of Mohammed Azim Khan a probable consequence of robbing a group of men or was it unlikely? Remember that there is no evidence that the 2nd Accused knew that the 1st Accused had a knife. Was it a probable consequence that the 1st Accused would take out a knife and stab Azim Khan?"

[50] In our judgment, the Court of Appeal correctly considered that the question of contemplation and foreseeability was a matter for the assessors and the trial judge to consider. The Court of Appeal concluded that it was open on the evidence for the trial court to infer that Qurai contemplated and foresaw death or serious harm to the victims when he ventured to commit robbery with violence in company.

[51] Qurai's contention that he was not part of the common purpose to rob anyone at Kewal's Yard was not supported by evidence. In his charge statement, Qurai admitted that he was at the scene when the three victims were attacked at Kewal's Yard. This incident occurred shortly after Qurai committed theft at the shop while in the company of his accomplices. After committing theft, Qurai remained in the company of his accomplices, and as they approached Kewal's Yard, all three attacked Khan, Kumar and Moshin, taking on one victim each. There was no evidence to suggest that Qurai had withdrawn himself from participating in any further crime after committing the theft at the shop with the group of men who attacked the victims at Kewal's Yard. Not only Qurai was present at Kewal's Yard, he actively participated in the attack of the victims with his accomplices. It was open on the evidence for the trial court to infer that Qurai had contemplated death or serious harm to the victims when he ventured to rob them in the company of others. For these reasons, Qurai's petition for special leave must fail.

Orders of the Court:

1. Special leave refused.
2. Judgment of the Court of Appeal is affirmed.

.................................................................
Hon. Mr. Justice Suresh Chandra
Justice of the Supreme Court

................................................................
Hon. Mr. Justice Daniel Goundar
Justice of the Supreme Court

.................................................................
Hon. Mr. Justice Salesi Temo
Justice of the Supreme Court

Solicitors:
Office of the Legal Aid Commission for the 1st Petitioner
Messrs Siwatibau and Sloan for the 2nd Petitioner
Office of the Director of Public Prosecutions for the State