Furbert and Sheldon Eugenio Franks v. The Queen (Bermuda) [2000] UKPC 12

Judicial Committee of the Privy Council
Case No Privy Council Appeal No. 61 of 1998Venue FROM THE COURT OF APPEAL OF BERMUDA JUDMENT OF THE LORDS OF THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL,
Between
Furbert and Sheldon Eugenio FranksAppellantThe Queen (Bermuda)Respondent
Before
Lord SteynLord Hope of CraigheadLord ClydeLord HuttonLord MillettDate 23 March 2000
[1]On 6th July 1996 James Caines was killed in Bermuda by a single shot from a gun. The two appellants were jointly charged on an indictment that they, being concerned together, murdered James Caines. The appellants were convicted by a majority verdict of a jury in the Supreme Court on 29th April 1997 and were each sentenced to imprisonment for life. Their appeals against conviction were dismissed by the Court of Appeal on 20th November 1997 and they now appeal by special leave from that decision. The Crown case.[2]The evidence called by the Crown established the following facts. On the evening of 6th July 1996 James Caines was sitting in a room in a house at 27 Curving Avenue in Pembroke with a number of friends. Caines and his friends were drinking and smoking cocaine when shortly after 9.00 p.m. a gun was fired into the room from outside the front of the house. A bullet struck James Caines on his left cheek and exited on the right side of his neck and embedded itself in his right shoulder. On being struck by the bullet Caines ran out through a door in the back of the house into a small garden. Both Franks and Furbert were seen to be in the vicinity of the house both before and after the shooting, and immediately after Caines had run out into the garden Franks was seen to attack him with a stick, striking him on the leg, before Caines ran away. Shortly after running away Caines died as a result of his wound and was pronounced dead in a hospital at 10.10 p.m. that evening. The Crown case against Franks.[3]Franks was arrested by the police on 7th July 1996. On that date the police seized the clothes that he admitted wearing on the evening of 6th July 1996. This clothing was tested for gunshot residues and the police also took swabs from his left and right hands for testing. Evidence was given that gunshot residues were found on his clothing and on the swabs from his right hand. Franks made a number of statements to the police. In one statement he said that he met Furbert in Curving Avenue and Furbert told him that Caines was in the house and asked him if he wanted to do something and he replied that he did. He then went back to his home where he obtained a stick and returned to Curving Avenue where he joined Furbert. They both went round to the back of the house where they heard several voices but they could not see the people. They then went round to the front of the house where he started to go up the stairs in front of Furbert when a shot was fired and someone came running out of the house. He went back to the rear of the house where he saw a man standing in the backyard. It sounded as if the man was being sick. Someone coming out of the house called his name and the man in the backyard then ran off. He did not hit the man with the stick but he proceeded to chase the man for a short distance and then went to his girlfriend’s home.[4]Sandra Cyrus and Jermaine Caines, the mother and brother of the deceased, were called as witnesses by the Crown. They gave evidence that after he had been shot the deceased staggered to their house and told them "Franks shot me". The Crown case against Furbert.[5]The police arrested Furbert on 11th July 1996 and took clothes from him which he identified as clothing he was wearing on 6th July 1996. This clothing was tested for gunshot residues and residues were found on the left side of his T-shirt. Because of the passage of time since the shooting no swabs were taken from his hands for testing for gunshot residues. The mother of the deceased gave evidence that on 14th July 1996 she met Furbert and had a conversation with him in which he told her that he had nothing to do with her son’s death but he admitted to her that he had accused him of taking packages, and it appears to be clear that "packages" meant packages of drugs.[6]During the early stages of the police investigation Furbert had declined to answer any questions put to him by the police and he had given no statement about his involvement in the events of the evening of 6th July 1996. Detective Constable Maxwell gave evidence that on 9th August 1996 while he was waiting to take Furbert to court Furbert began a conversation with him by asking what was going to happen to him. The detective constable replied that he was going to court so that he could hear the charges and that he would be remanded. Furbert then referred to Franks and said that he knew that he would crack under the pressure. The detective constable then told Furbert to be careful what he was saying to him and that he was writing it down for his (Furbert’s) safety, and the detective constable then noted down what had been said and what Furbert continued to say. Furbert then made some further remarks about Franks and the detective constable asked him:
"Who shot Jamis (sic) then?"
. Furbert replied:
"I’m not saying anything about the shooting I accept the blame its cool. You guys are something I can respect you guys. All you had to do was pressure him and he starts talking"
. Later the detective constable asked him "Why take the blame if you haven’t done anything?" and Furbert replied "No its cool I’ll take the heat. How long do you think I’ll get 18?". A little later in the conversation the detective constable asked Furbert "You want to say anything about the shooting to me?". Furbert replied "No no I got nothing to say about that my lawyer told me to say nothing I’ll leave that to Franks". The defence cases.[7]Both defendants gave evidence. No other witnesses were called. In his evidence Franks said that he suspected that James Caines had broken into his house on two occasions. On the evening of 6th July he met Furbert in an alley close to the house and Furbert told him that James Caines had been in the vicinity and asked him if he "want to go and do him something?". He said that he did and he went back to his house to get a stick. Caines was known to carry a knife and as he was going to accuse him he felt it would be wiser to carry a stick. He came back to the alley with a stick and started to walk towards the house and Furbert then said to him "hold up". While he waited sitting on a wall Furbert went up a little road to a bush and then returned to where he was sitting. They then went round to the back of the house. They could hear male and female voices in the house and Furbert climbed onto a pipe under the window and tried to see inside but was unable to do so. They then went round to the front of the house on the south side. At this time his frame of mind was that he was not worrying about his situation. As they reached the area by the south door he said to Furbert "Look – lef him. I ain’t worrying about this guy", meaning to forget about whatever they came there for. He started walking over the stairs and he heard a loud bang, which frightened him. He turned and looked back at Furbert. He then continued to walk up the stairs and he heard Furbert cock the weapon and then Furbert ran over the stairs past him and across the yard and up the rocky road. He figured that James Caines had probably run out of the back of the house so he walked to the back of the house. He saw a person who appeared to be James Caines who was vomiting. As he got close to Caines, Caines ran away and he ran after him, but soon stopped and he rode away on his cycle.[8]In his evidence Furbert said that he did not fire a gun on 6th July. He was in the vicinity of the house in the alley on the evening of 6th July. He was talking to a number of other men in the area. He saw Franks arrive on his bicycle. He was feeling hungry and he went to get his bicycle and as he went to pick it up he heard a bang and smelt fumes. Everyone ran to see what had happened. He then left the area on his bicycle. He told Caines’ mother that he had accused him of taking a package. This was early in 1995. He did not own a gun and was not in possession of one on the evening of 6th July. He had no reason to hurt James Caines. He could give no explanation why Franks had picked on him.[9]On 9th August 1996 when he was waiting to be taken to court Detective Constable Maxwell asked him "Who shot Jamis?" and he replied that he had nothing to say and explained that his lawyer had told him not to say anything. The conversation described by Detective Constable Maxwell had never taken place. The grounds of appeal. 1. The evidence of Detective Constable Maxwell[10]Furbert advanced a number of grounds of appeal in respect of the evidence of Detective Constable Maxwell. These grounds can be summarised as follows.(a) The judge failed to recognise that the police investigation had ceased on 9th August 1996 and that Detective Constable Maxwell had acted in breach of the Judges’ Rules.(b) The judge should not of his own volition have made Detective Constable Maxwell’s notes exhibits in the case.(c) The judge should have directed the jury that the notes were not corroborative of Detective Constable Maxwell’s evidence and were merely an aide memoire.(d) The judge’s direction to the jury that the appellant’s words were "not an out and out admission" were inadequate and would have served to confuse the jury.[11]Before Detective Constable Maxwell gave his evidence and in the absence of the jury counsel for Furbert objected to his evidence. It is clear from the record that counsel did not object on the ground that Furbert’s remarks were involuntary or obtained in breach of the Judges’ Rules. He said:- "I object to content as set out in notes. I can only assume it is some form of admission. I say it is clearly not an admission and in any event it is thoroughly and utterly ambiguous: highly prejudicial."[12]After hearing submissions the judge ruled:- "I start from the position that this evidence is prima facie admissible. Then I have considered whether I should exclude it in my discretion to exclude evidence which is more prejudicial than probative, but I do not think that it should be excluded on that basis. Its interpretation is a question of fact for the jury and I think it should be left to them."[13]In his evidence in chief Detective Constable Maxwell testified from memory and did not seek to refresh his memory from his notes although he said that he made contemporaneous notes. It was not until he was cross-examined by counsel that he produced his notes and was cross-examined on them. Counsel for Furbert suggested to Detective Constable Maxwell that his notes were a deliberate fabrication to implicate Furbert and this suggestion was rejected by the witness. The following exchange then took place:- "Mr. Warner: May I show notes to jury, so that they can observe their neatness. Court: Yes, if they are exhibited. Mr. Warner: I say they need not be formally exhibited. There are consequences as to speeches. Attorney-General: I am not asking to put them in. Court: I will exhibit them. I doubt if the consequences flow at law and I am not in favour of technical manoeuvres."[14]The notes were then placed before the jury as exhibit 22.[15]In his summing up the judge dealt at length with Detective Constable Maxwell’s evidence and with the suggestions which defence counsel had made. The judge said at page 265of the record:- "Mr. Warner cross-examined Mr. Maxwell about this. He put it very bluntly to Maxwell that it was a complete fabrication. A deliberate fabrication to implicate Mr. Furbert. Mr. Maxwell denied that, but you will need to consider that in the light of all the evidence. Mr. Maxwell insisted that he wrote notes immediately at the time as the conversation was happening. You may think that that is important because the exact words are important. What Mr. Furbert is reported as saying is not an out and out admission. It may be ambiguous, it may need interpretation and it’s for you to interpret and in doing that you would need to see the exact words used in the context that they were used; and you would need to see the way the conversation unfolded. You may think that you could be more confident of doing that and of the accuracy of the record if it was, in fact, taken down at the time, as opposed to being recorded sometime later from recollection after the event."[16]He later said at page 266:- "Just to summarise on this conversation with Maxwell, Mr Furbert’s case is that he did not say any of this. As I told you, a defendant’s admissions are admissible in evidence against him. In deciding whether you can safely rely upon this alleged conversation, you must decide three things: First of all, did the defendant, Mr. Furbert in fact, say what is recorded. If you are not sure that he did, then you should ignore it. If you are sure that he said what is recorded, then you have to consider what does it mean? Does it, in fact, contain admissions? If you are sure of that, then you have to take - - if it does contain admissions, was it true - - was he then telling the truth to Maxwell. In deciding these last two questions, you should have regard to all the circumstances in which the conversation came to take place and consider whether there were any circumstances which might cast doubt upon its reliability. It is for you to assess what weight should be given to Mr. Furbert’s remarks during this conversation, if you find that he made them. If you are not sure for whatever reason, that they do amount to admissions, or that they might not be true, you must disregard them. If, on the other hand, you are sure that they amount to an admission of guilt, and as such are true, then you may rely on them even though they were not made as part of a formal question and answer or a formal interview."[17]Their Lordships are in agreement with the opinion expressed by the Court of Appeal:- "In an overall view of how the Judge dealt with Maxwell’s evidence and the note taken by him, no convincing complaint can be sustained against it."[18]In their Lordships’ opinion there is no substance in the submissions advanced on behalf of Furbert to the Board. His counsel did not challenge the admissibility of the alleged oral remarks on the ground that they were involuntary. The breach of the Judges’ Rules does not automatically render an oral statement made by the accused inadmissible. There can be no criticism of the judge making the notes an exhibit as defence counsel suggested that the jury should see them. The question whether a statement constitutes an admission is a question for the jury to decide. The judge correctly pointed out to them that the words attributed to Furbert were not an out and out admission and could be regarded as ambiguous and that it was for them to decide whether the words constituted an admission, and told them that they would have to be sure of that before coming to that conclusion. If the words were an admission their probative value was strong and the judge was entitled to exercise his discretion to admit them. 2. The conversation between the mother of the deceased and Furbert.[19]In relation to the evidence of the mother of the deceased that on 14th July 1996 she had a conversation with Furbert in which he told her that he had nothing to do with her son’s death but also told her that he had accused him of taking packages, the judge said to the jury in the summing up:- "Well, that was put before you, members of the jury, by the Crown and they rely upon the fact, if it be such, that Caines had taken a package or packages from Furbert as a motive for him embarking upon whatever he did embark upon that night. They rely upon his admission to Ms. Cyrus that he had had occasion to accuse James of taking his package or packages. You’ll note that Ms. Cyrus does not put a date when that is said to have occurred."[20]Counsel submitted that this evidence was inadmissible because there was no nexus between the so-called motive and the shooting and that the judge should have directed the jury that the evidence of the deceased’s mother that Furbert had told her that he had accused her son of taking packages could only be evidence of motive if they were first satisfied that Furbert had been concerned in the shooting. Their Lordships do not accept that submission because it is clear that the prosecution may give evidence of motive to support its case that it was the accused who killed the deceased. The law was stated as follows by Lord Atkinson in the course of counsel’s submissions in Rex. v. Ball [1911] AC 47 , 68:- "Surely in an ordinary prosecution for murder you can prove previous acts or words of the accused to shew he entertained feelings of enmity towards the deceased, and that is evidence not merely of the malicious mind with which he killed the deceased, but of the fact that he killed him. You can give in evidence the enmity of the accused towards the deceased to prove that the accused took the deceased’s life. Evidence of motive necessarily goes to prove the fact of the homicide by the accused, as well as his ‘malice aforethought,’ inasmuch as it is more probable that men are killed by those who have some motive for killing them than by those who have not." 3. Furbert submitted that the judge erred in rejecting his submission of no case to answer.[21]Their Lordships do not accept this submission and are of opinion that the Court of Appeal was right to hold that at the close of the Crown case there was evidence on which a reasonable jury properly directed could convict Furbert of the murder. There was the evidence that he was in the vicinity of the house shortly before, and shortly after, the shooting took place, that there were gunshot residues on the shirt which he had been wearing on 6th July 1996, and that he made remarks to Detective Constable Maxwell which could be viewed as constituting admissions that he had been involved in the shooting. 4. The judge misdirected the jury as to the mental element in the crime of murder.[22]This was the principal argument advanced on behalf of both appellants. The submissions were largely advanced by Mr. Perry Q.C. on behalf of Furbert. Most of his submissions were adopted by Mr. Froomkin Q.C. on behalf of Franks and Mr. Froomkin advanced some additional submissions. The argument was formulated in a number of ways but, in essence, it was this. In summing up the judge directed the jury that in considering whether the firing of the gun was likely to endanger human life and whether the killing of the deceased was a probable consequence of the prosecution of the appellants’ unlawful purpose, they should apply an objective standard. The appellants submitted that these were erroneous directions.[23]In order to consider this submission it is necessary to set out the relevant sections of the Criminal Code Act 1907 of Bermuda which are as follows:- "27.(1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence, and to be guilty of the offence, and may be charged with actually committing it –(a) every person who actually does the act or makes the omission which constitutes the offence;(b) every person who does any act or makes any omission for the purpose of enabling or aiding another person to commit the offence;(c) every person who aids another person in committing the offence; and(d) any person who counsels or procures any other person to commit the offence." " Offences committed in prosecution of common purpose 28. 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; then each of such persons is deemed to have committed the offence." "36(1) Subject to the express provisions of this Act relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident. (2) Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial." "287(1) Except as hereinafter provided, a person who unlawfully kills another person under any of the following circumstances is guilty of murder, that is to say – (a) if the offender intends to cause the death of the person killed, or that of some other person; (b) if the offender intends to do to the person killed or to some other person some grievous bodily harm; (c) if the offender causes death by means of an act done or omission made in the prosecution of an unlawful purpose, which act or omission is of such a nature as to be likely to endanger human life; … (3) In the circumstances set out in paragraph (c) of subsection (1) it is immaterial that the offender did not intend to hurt any person."[24]In opening the case for the Crown the Attorney-General referred to paragraphs (a), (b) and (c) of section 287(1), but it is clear that the main emphasis of the Crown case was on paragraph (c). In summing up the judge also told the jury that there were three ways in which, for the purposes of the case, murder could be committed and he gave brief directions in relation to paragraphs (a) and (b), and he then said at page 240:- "The third way in which murder may be committed is this: any person who unlawfully kills another is guilty of murder if he causes death by means of an act done in the execution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life. In such a case, it is immaterial that the offender did not intend to hurt anybody at all. The prosecution particularly points you to this way of committing the offence. In considering this, you should distinguish between the act which is done and the purpose with which it is done. The act has to be such as is likely to endanger human life. The purpose has to be an unlawful one. Let me just look at those two elements separately. The act has to be such as is likely to endanger human life. That is an objective test for you to decide by looking at what was, in fact, done. Here, the act alleged is the firing of a gun into a room with people in it. It is a matter for you, on the facts, whether that, looked at objectively, is such as is likely to endanger human life. As to the purpose with which the act is done, it has to be an unlawful one. As with ‘intent’, you decide the purpose with which something is done by looking at all the circumstances. So, what would constitute an unlawful purpose. The use of a weapon or a threat of violence to scare or intimidate is unlawful. Similarly, causing harm which was less than grievous bodily harm is unlawful. Either of those would, therefore, be an unlawful purpose. It is the purpose which is the key here, not the act itself. It may be hard to imagine how a gun could be fired into a room with people in it for a purpose which was lawful, but the mere act of firing is not itself the purpose, although it might be unlawful. Although you can convict under any one of these sets of circumstances, it is for the Crown to make you sure that all the ingredients of at least one of them are made out before you can do so."[25]In respect of a joint offence the judge gave the following direction to the jury at page 238:- "Before we get to the details of that, you will see that it charges what’s called a joint offence. That is to say, that it alleges that the two defendants committed the offence being concerned together. Now the law is that, and I quote this, ‘where two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such a purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such a purpose, then each of such persons is deemed to have committed the offence’. That is set out in the Criminal Code. Where an offence is committed in this way by two or more persons, each of them may play a different part, but each is guilty of the offence. Before you can convict a person on this basis, you must be sure that he was a party to a joint enterprise with one or more others to carry out an unlawful purpose and that the commission of the offence was a probable consequence of the carrying out of that unlawful purpose. If you are sure in respect of any one defendant that he actually committed the offence, it is not necessary for you also to be sure that he acted with another before you can convict him. It is only if you think that a defendant’s involvement was limited to doing something which did not of itself constitute the full offence that you need to go on and consider whether that defendant was acting in furtherance of a joint plan with the person who actually committed the offence. To put it simply, the question for you then is, were they in it together."[26]In the present case their Lordships are of opinion that section 287(1)(c) applied to the person who fired the gun and section 28 applied to the person who was acting with the gunman in the prosecution of an unlawful purpose. Their Lordships further consider that there is ample authority (see the cases discussed in Reg. v. Giannetto [1997] 1 Cr.App.R. 1) that the judge was correct in directing the jury at page 241 that:- "It follows that you do not, in fact, have to be sure which defendant in fact pulled the trigger, provided that you are sure that both were there pursuant to a joint enterprise to kill or cause grievous bodily harm to James Caines, or at least to use the gun to fire into the room. If that is the case, provided that what occurred was within the ambit of the joint enterprise and the other elements of the offence are made out, then both are guilty although only one fired the shot."[27]The appellants submitted that in accordance with the principles of the common law the judge should have directed the jury that before they could convict the person who fired the gun they must be satisfied that he intended to kill or cause grievous bodily harm. They further submitted that in accordance with the principles of the common law established in Chan Wing-Siu v. The Queen [1985] AC 168 and Reg. v. Powell (Anthony) [1999] 1 AC 1 the judge should have directed the jury that before they could convict the accomplice they must be sure that he foresaw that the person who fired the gun intended to kill or cause grievous bodily harm. Their Lordships are unable to accept these submissions because it is clear that in Bermuda the liability for murder and the liability of a party to a joint enterprise are governed by the provisions of the Criminal Code and not by the rules of the common law, and it is also clear that section 287(1)(c) provides for an offence which can be termed "constructive murder".[28]The Criminal Code of Queensland contains provisions which for all practical purposes are identical to the relevant provisions of the Criminal Code of Bermuda. In Stuart v. The Queen (1974) 134 C.L.R. 426 the High Court of Australia considered sections 8, 23 and 302(2) of the Criminal Code of Queensland which correspond to sections 28, 36(1) and 287(1)(c) of the Bermuda Code. Gibbs J. stated at page 437:- "The questions that now fall for decision depend for their solution upon the proper construction of these sections. The correct approach to the interpretation of a section of the Code is that stated by Dixon and Evatt JJ. in Brennan v. The King (1936) 55 C.L.R. 253 , at p. 263, as follows:
‘… it forms part of a code intended to replace the common law, and its language should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law. It is not the proper course to begin by finding how the law stood before the Code, and then to see if the Code will bear an interpretation which will leave the law unaltered.’
This passage does not mean that it is never necessary to resort to the common law for the purpose of aiding in the construction of the Code – it may be justifiable to turn back to the common law where the Code contains provisions of doubtful import, or uses language which had previously acquired a technical meaning, or on some such special ground: see Robinson v. Canadian Pacific Railway Co. [1892] AC 481 , at p. 487, cited in R. v. Scarth [1945] St. R. Qd. 38, at p. 44. If the Code is to be thought of as ‘written on a palimpsest, with the old writing still discernible behind’ (to use the expressive metaphor of Windeyer J. in Vallance v. The Queen (1961) 108 C.L.R. 56 , at p. 76), it should be remembered that the first duty of the interpreter of its provisions is to look at the current text rather than at the old writing which has been erased; if the former is clear, the latter is of no relevance."[29]In his judgment Gibbs J. made it clear that the test under section 302(2) whether an act "is of such a nature as to be likely to endanger human life" is a purely objective test. His judgment also provides a clear answer to an argument advanced by Mr. Perry that under section 36(1) an accused is protected from criminal liability for an event which occurs by accident, and that an event (in this case the death of the deceased) occurs by accident if the accused did not foresee the event as a probability. Gibbs J. stated that if an event could reasonably have been foreseen by an ordinary person the event does not occur "by accident". At page 438 Gibbs J. said:- "The offence of murder which s. 302(2) defines has three elements. First, the killing must have been unlawful. Secondly, the death must have been caused by an act of such a nature as to be likely to endanger human life. Thirdly, that act must have been done in the prosecution of an unlawful purpose. The first of these elements requires no discussion in the present case. To constitute the second element it is enough that the act which caused the death was in fact likely to endanger human life, whether or not the offender knew that it was dangerous. Section 302(2) speaks of the nature of the act, not of the knowledge of the offender, and it was rightly said in Reg. v. Gould and Barnes [1960] Qd.R. 283, at p. 298, that the test which it requires to be applied is ‘purely objective’. Moreover, s. 302(2) does not require the offender to have acted with any particular intention, and even without the concluding words, which expressly state that it is immaterial that the offender did not intend to hurt any person, the second paragraph of s. 23 would have the effect that the result which the offender intended to cause by his act is immaterial. However, the apparent severity of the operation of s. 302(2) is mitigated by the provisions of the first paragraph of s. 23, since if the death is an event which occurs by accident – that is, if it was a consequence which was not in fact intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person ( Kaporonovski v. The Queen [1973] 133 C.L.R. 209 , at pp. 231-232, and cases there cited) – the accused will not be criminally responsible."[30]At page 439 Gibbs J. said:- "Upon the evidence it was open to the jury to find that the lighting of the fire, at a time when people were in the night club, was an act likely to endanger human life. The resulting death was foreseeable and was not an event which occurred by accident."[31]And at pages 441-442 Gibbs J. stated:- "Finally it was submitted that it was not open to the jury to find that the murder committed by Finch was of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose of extortion. To consider this submission it is first necessary to decide whether, as was submitted on behalf of the applicant, ‘a probable consequence’ within s. 8 is a consequence which the accused was aware was likely to follow from the prosecution of the purpose, i.e. whether the words of s. 8 referring to ‘a probable consequence’ import a subjective test. Clearly, in my opinion, they do not. The question posed by the section is whether in fact the nature of the offence was such that its commission was a probable consequence of the prosecution of the common unlawful purpose and not whether the accused was aware that its commission was a probable consequence. … In Reg. v. Solomon [1959] Qd.R. 123, Philp J. criticized some of the passages in Brennan v The Queen (1936) 55 C.L.R. 253 which dealt with the effect of s. 7 (a question to which I shall return) but did not extend that criticism to the Court’s remarks as to s. 8. He said [1959] Qd. R., at p. 129:
‘This section [s.8] extends the criminal responsibility of persons who have made a concert to commit an offence. They are responsible not only for the concerted – the willed – offence, but also for such offences – but only such offences – as are objectively the probable consequence of the prosecution of the concert.’
I agree that under s. 8 the test is an objective one."[32]The Australian authorities establish that when the prosecution relies on section 302(2) (the Bermuda equivalent being section 287(1)(c)) a distinction must be drawn between the "act" and the "unlawful purpose". In Stuart v. The Queen Gibbs J. stated at page 438:- "The third element in s. 302(2) has sometimes occasioned difficulty. It appears clearly from the words of the section, and it has been laid down by this Court, that the act of the accused which caused the death cannot at once constitute the dangerous act and the unlawful purpose: …"[33]Mr. Perry submitted that in summing up the judge had failed to make this distinction clear to the jury. Their Lordships do not accept that submission. Their Lordships consider that the judge gave a proper direction to the jury in telling them that a plan to use a gun to scare or intimidate Caines could constitute an unlawful purpose and the firing of the gun could constitute the act of such a nature as to be likely to endanger human life. Whilst a distinction has to be drawn between the act and the unlawful purpose the two can be closely linked as is shown by the authorities cited in Stuart v. The Queen and the facts of that case, where a number of persons were killed in a fire at a night club. The unlawful purpose was the extortion of money from the night club owner and the act was the lighting of the fire. Gibbs J. also observed at page 439 that the act could be the striking of a match and applying it to inflammable liquid in a building, and the unlawful purpose could be to commit arson by burning down the building.[34]Mr. Perry further submitted that the judge erred in failing to direct the jury that a verdict of manslaughter was open to them in respect of the person who fired if the jury were not satisfied that he intended to kill or cause grievous bodily harm, and that such a verdict was open to them in respect of the secondary party if the jury were not satisfied that the purpose of the joint enterprise was to kill or cause grievous bodily harm. Their Lordships do not accept that submission because it is clear on the facts of the case that findings of manslaughter in accordance with common law principles would constitute findings of murder under section 287(1)(c), and section 28, and therefore the judge was right not to leave manslaughter to the jury as the liability of the appellants was governed by the provisions of these sections and not by the common law.[35]Their Lordships consider that the judge gave proper and fair directions to the jury as to the application of the relevant provisions of the Criminal Code. At pages 241 and 242 of the summing up he stressed in a number of places that before the jury could convict the secondary party, who did not fire the gun, of murder they must be satisfied that he knew that the plan was to use a gun. The judge then said at the bottom of page 242:- "For a person to be held liable for the probable consequences of a joint enterprise, you have to be sure that he knew all the facts that make that consequence a probable one. Thus, if one did not know that the other had a gun, then you might think – although it’s a matter of fact for you – that anything resulting from the use by the other of a concealed gun was not a probable consequence of the enterprise that the first one was embarked upon."[36]Viewed in isolation and if subjected to a strict analysis these two sentences can be regarded as constituting a misdirection because by saying "although it’s a matter of fact for you" the judge could be understood to be telling the jury that, contrary to the view which he was suggesting to them as the proper one, it would be open to them to find the secondary party guilty of murder even if he did not know that the other party had a gun. But their Lordships are satisfied that when read together with the judge’s repeated warnings that for the secondary party to be guilty of murder, he must know that the plan was to use a gun, their Lordships are satisfied that these two sentences gave rise to no risk of a miscarriage of justice. Accordingly their Lordships are satisfied that the judge did not err in directing the jury as to the effect of the relevant provisions of the Criminal Code. 5. The declaration of Caines that Franks shot him.[37]After being shot in the house and running into the back garden Caines went a short distance up a lane to the home of his mother and brother. He was soaked with blood and was vomiting blood and told them he was going to die. Overruling objections from counsel for Franks the judge permitted counsel for Furbert to elicit evidence from them that Caines had told them that Franks had shot him. Sandra Cyrus stated in evidence that her son said "Franks shot me", and Jermaine Caines stated in evidence that his brother said "Franks round the Curve shot me".[38]The judge ruled that the statement that Franks shot him was admissible in evidence as a dying declaration, or in the alternative as part of the res gestae .[39]It was clear that because of the curtains on the windows and door of the house Caines could not have seen who it was that shot him and in summing up the judge reminded the jury of this and told them that Caines may just have assumed that Franks had shot him because Franks had attacked him in the yard after he had gone outside immediately after the shooting. The judge also reminded the jury that Caines had been smoking cocaine a short while before and that this may have impaired his ability to make any accurate observations or to have any accurate awareness of what was going on around him. The judge then said to the jury at page 253:- "Because of these factors, I say to you that you should not rely upon this statement by the deceased unless there is other evidence which goes to support the correctness of the identification. You should not rely upon it alone and, if, at the end of the day, you think that that is all there is to show that Franks had actually fired the shot, then you would not be safe in coming to that conclusion. The mere fact that Franks was said by other witnesses to be there does not support it – it adds to the risk of error or faulty inference. The fact, if you find it to be such, that there was gunshot residue on Sheldon Franks’ right hand may support it, but you should bear in mind the limitations of that evidence as elicited in cross-examination of Mr. Theriault and I’ll review that with you when I come to his evidence."[40]Before the Court of Appeal it was argued on behalf of Franks that the statements of Caines to his mother and brother should have been ruled inadmissible by the judge and should not have been put in evidence before the jury. The Court of Appeal ruled:- "The complaint under these grounds is that the Judge admitted in evidence what the deceased is alleged to have told witnesses before his death, concerning who shot him. The Attorney-General accepted that little weight could be attached to what the deceased said. In our opinion the so-called ‘dying declaration’ by Caines as to who shot him should have been excluded. What he said was not part of the res gestae and he could not, on the evidence, have seen who shot him. But the Judge dealt very fully with this evidence in the summing up and we are not satisfied that its admission led to any miscarriage of justice. We do not accept these grounds and dismiss them."[41]The judge was faced with a difficult task in ruling on the admissibility of Caines’ statement because it was not the Crown, but the co-accused, who sought to put it in evidence. However, because it is clear on the evidence that Caines could not have seen or known who shot him his statement was of no relevance and their Lordships are in agreement with the view of the Court of Appeal that it should have been excluded.[42]But their Lordships also consider that the admission of the statement in evidence gave rise to no risk of a miscarriage of justice. Although the judge should have excluded the statement, he did clearly warn the jury that it was of very little weight because Caines could not have seen who shot him. Moreover there was very strong evidence against Franks that he was a party with Furbert to a plan that the gun would be fired, which was an act of such a nature as to be likely to endanger human life within the meaning of section 287(1)(c), and therefore he was guilty of murder whether he or Furbert fired the gun, and it is clear from the convictions of both appellants that the jury were satisfied that there was a joint plan to fire the gun to which they were both parties. 6. Other grounds of appeal.[43]It was submitted on behalf of Furbert that in directing the jury that after they had retired to consider their verdict for at least one hour they could return a verdict agreed upon by nine of them, the judge wrongly gave the impression to the jury that they need not strive to reach a unanimous verdict and effectively pre-empted a unanimous verdict. Their Lordships consider that there is no weight in this submission as the judge said to the jury at the end of the summing up:- "Now, members of the jury, in considering your verdict I must ask you please to try and reach a unanimous verdict in respect of each defendant. Unanimous, that is, you all agree on it – either for or against."[44]The written cases of the appellants also set out a number of other grounds of appeal, but these were not argued before the Board and their Lordships are satisfied that there is no substance in them.[45]Accordingly, for the reasons which they have given, their Lordships will humbly Her Majesty that the appeals of both appellants should be dismissed.