Appeal - Murder - Transferred malice - Defendants shooting at each other

R v Gnango: SC (Justices of the Supreme Court, Lords Phillips (president), Brown, Judge, Kerr, Clarke, Dyson and Wilson): 14 December 2011

The defendant, then aged 17, had a dispute with another youth. At about 5pm on 2 October 2007, he went with a friend, N, by car to the home of his ex-girlfriend, R.

Shortly thereafter N and the defendant drove to a car park elsewhere on the same estate from where the defendant went on foot to an adjacent car park. He had armed himself with a gun which was silver in colour and he had several rounds of live ammunition. A red Volkswagen Polo was already in the car park. The defendant spoke to the occupants of the Polo, as they were about to leave.

According to two of them, he told them that ‘he had come to meet someone to handle some business’. He asked if they had seen a man in a red bandana, saying that that man owed him some money. Very shortly thereafter the occupants of the red Polo saw someone (X), with his face covered with a red bandana, come down the steps towards the car park. He pulled out a gun, black in colour, and started shooting at the defendant. The defendant crouched down behind the red Polo, pulled out his gun and returned fire. The defendant fired two or three shots over the roof of the car. He then went to the front of the car and started shooting over the bonnet while the other man shot back.

The clear evidence of those in the Red Polo was that the defendant was shooting at X. It was in that crossfire between the defendant and X that the 26-year-old deceased, who was walking home from a nursing home and talking on the telephone to her sister, was killed by a single shot to her head. Forensic examination showed that the single bullet to the deceased’s head had not come from the defendant’s gun; it had come from the gun held by X.

Both the defendant and X fled from the scene. A man believed to be X was arrested, but never charged. The defendant was arrested four days later. He was charged with murder, in respect of the deceased, and attempted murder, in respect of X, and having a firearm with intent to endanger life. In relation to murder, the prosecution had originally put its case on two bases. First, it was contended that the defendant had aided and abetted the shooting by X with intent to kill; he had been present and had encouraged it. The judge rejected that in his ruling at the end of the prosecution case.

Second, the prosecution contended that the gunfight had been a joint enterprise crime as between the defendant and X, and that each had foreseen that in the course of it the other might shoot, with intent to kill or do really serious bodily injury, and might kill someone other than the immediate target of his shot. It was contended on that basis that the defendant was jointly responsible with X for the murder. The trial judge had directed the jury that, in order to convict, they had to be satisfied that there had been a plan or an agreement to have a ‘shoot out’, whether made beforehand or on the spur of the moment when the defendant and X saw and fired at each other in the car park. The defendant was convicted and he appealed against his conviction for murder.

The prosecution sought to uphold the judge’s direction on the basis of parasitic accessory liability. The defendant submitted that that was not a viable case as the starting point for parasitic accessory liability was a joint enterprise and there had been no joint enterprise. The Court of Appeal overturned his conviction holding that ‘joint enterprise’ liability for murder, the basis on which the court had considered his conviction to rest, could not arise on the facts. Permission to appeal was granted in order to enable the Supreme Court to consider a point of law, certified as being of general public importance.

The question certified was whether, if, first, the defendants, D1 and D2, voluntarily engaged in fighting each other, each intending to kill or cause grievous bodily harm to the other and each foreseeing that the other had the reciprocal intention, and if second, D1 mistakenly killed V, an innocent bystander, in the course of the fight, in what circumstances, if any, was D2 guilty of the offence of murdering V. The prosecution submitted, inter alia, that the defendant had been an accessory to X’s attempt to kill him and thus shared X’s liability, as a result of the doctrine of transferred malice, for the murder of the victim. Further, the conviction of the defendant could be justified on the basis that the defendant had aided and abetted the commission of the murder by actively encouraging X to shoot at him and therefore the trial judges direction to the jury had been a sound basis for the conviction.

The appeal would be allowed (Kerr J dissenting).

Where a defendant intended to kill or cause serious injury to one victim, V1, but accidentally killed another, V2, he would be guilty of the murder of V2. The basis of that liability was customarily described as ‘transferred malice’. The doctrine applied to secondary parties as it did to principal offenders (see [16] of the judgment).

In the instant case, a guilty verdict involved a combination of common law principles in relation to aiding and abetting and the common law doctrine of transferred malice. The judge had directed the jury that, in order to convict they had to be satisfied that there was a plan or agreement to ‘have a shoot out’. That direction had not permitted the jury to convict if they believed that one of the protagonists might have been the aggressor and the other merely responding in self-defence. It was an unequivocal direction that the jury could convict only if they were satisfied that the protagonists had formed a mutual plan or agreement to have a gun fight in which each would attempt to kill or seriously injure the other. If the jury were satisfied of that, the consequence in law was that each of the protagonists was party, not merely to his own attempt to kill or seriously injure the other, but to the other’s attempt to kill or seriously injure him. Contrary to the finding of the Court of Appeal, the direction of the judge required the jury to consider whether they had been satisfied that the defendant and X had a common plan or agreement to shoot at each other and be shot at. If they had been so satisfied, and their verdict indicated that they had been, that was a proper basis for finding that the defendant was guilty of murder.

To hold the defendant guilty of murder would not be so far at odds with the requirements of justice as to call for a reappraisal of the application of the doctrine in the instant case. On the jury’s verdict the defendant and X had chosen to indulge in a gunfight in a public place, each intending to kill or cause serious injury to the other, in circumstances where there had been a foreseeable risk that that result would be suffered by an innocent bystander. It was a matter of fortuity which of the two had fired what proved to be the fatal shot. In the circumstances it accorded with the demands of justice rather than to conflict with them that the two gunmen should each be liable for the victim’s murder (see [58], [60], [61] of the judgment).

The certified question would be answered in the affirmative, and the defendant’s conviction for murder restored (see [65] of the judgment). A-G’s reference (No 3 of 1994) [1997] 3 All ER 936 considered. Decision of Court of Appeal, Criminal Division [2010] All ER (D) 283 (Jul) reversed.

Brian Altman QC and Mark Heywood QC (instructed by the Crown Prosecution Service) for the prosecution.