Lord Rodger delivered the judgment of the Judicial Committee, in a tone that strikes me as darkly humorous. I might be quite wrong about that, as, after all, this was a tragic murder and a long delayed meritorious appeal.
The events started with the falling of a ripe leaf from an ackee tree.
Image from ackee-tree.com
The resulting struggle involved machetes or cutlasses, a shovel, an axe and probably a lead pipe. Shortly after that, someone was "juked" (stabbed) in the back with a cutlass – but this was not particularly serious. The final events, in another incident soon afterwards, involved beatings with cutlasses, and iron pipe, and a fatal stab with a long knife.
The stabber joined in during the attack by two others; three people – the appellants - were charged and convicted of the murder. The only apparent injury to the victim – apart from some blood on his leg (a witness had said "It look like he get a lick … I saw, like when you lick somebody – like when a person get a hearty lick and a settling of blood here") - was the stab wound, so it was obvious that the beatings had not been intended to cause significant injury. This, then, was a case of extended secondary liability as far as two of the appellants were concerned, and of identity for the alleged stabber.
The law had been settled in R v Rahman [2009] 1 AC 129, 165, para 68 (noted here 3 July 2008). The trial judge did not have the advantage of reading that decision. His direction to the jury was defective; Lord Rodger at 15 cites this example:
"Is Dane Miller talking the truth when he said that these men and some others draw out himself and his father, his father ran and fell, one of them stabbed him in the chest: that is the case? If you believe that it happened that way, then all three of them will be guilty of murder, all three."
The Board applied Rahman:
"14. The facts that they were using the flat of the blades and that so little by the way of injury to the deceased was actually inflicted by those blows make it difficult to draw the inference that the attackers (apart from the one who carried out the stabbing) intended to cause serious bodily harm or that any individual attacker would have realised that any other participant might kill or intentionally inflict serious injury on the deceased. While it is therefore unnecessary for the Board to reach a conclusion on the point, their Lordships incline to the view that, given the way that only the flat of the machete blades was being used, the long knife was indeed a "more lethal weapon" and the stabbing was "fundamentally different" from anything foreseen by the other participants."
In the absence of any evidence that the two assailants (not the stabber) intended serious injury or knew that the third person intended serious injury, there was no occasion for a retrial: the convictions of those two appellants were quashed. They had spent at least five years in prison.
The third appellant denied that he was the stabber, and the Board decided that the judge had not differentiated sufficiently between the three accused, all of whom had been represented by the same counsel. The jury might have convicted him on the basis that all three were together, without properly assessing the probative value of the eyewitness who identified him as the stabber. His conviction was quashed and his case remitted to the Court of Appeal for a decision on whether there should be a retrial.
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