Secondaries parties revisited

Sunday 4 April 2010 at 7:33 pm | In News | Post Comment

R v Mendez and Thompson [2010] CA
DD were part of a group who chased their victim in the street following a fight at a house about stolen Xboxes. The prosecution alleged that Thompson was the stabber. The jury convicted Thompson and Mendez on the basis that they were secondary parties.

One ground for Mendez’s appeal was whether the use of the knife was “fundamentally different” from anything he foresaw. Thompson appealed on similar grounds.

Held: The court reviewed all the existing cases on joint enterprise and allowed their appeals.
D is not liable for the murder of V if the direct cause of V’s death was a deliberate act by P, which was of a kind (a) unforeseen by D and (b) likely to be altogether more life threatening than acts of the kind intended or foreseen by D.

“It would not be just that D should be found guilty of murder of V by P, if P’s act was of a different kind from, and much more dangerous than, the sort of acts which D intended or foresaw as part of the joint enterprise.”

The principle established in Chan Wing-Siu [1985] HL and reaffirmed in Powell and English [1999] HL is that a secondary party is criminally liable for acts by the primary offender of a type, which the former foresees as a possibility but does not intend. Lord Rodger illustrated the principle in Rahman [2008] HL:

“Suppose that, knowing what A is like and that he tends to carry a gun, B contemplates that A may take a gun and use it in the course of the attack on the victim. Then, even if B is vehemently opposed to the use of a gun and tries to dissuade A from carrying one, nevertheless, if, being aware of the risk, B takes part in the joint assault, he will be guilty of murder if A shoots the victim.

Lord Mustill in Powell and English stated that where D and P embark on a criminal venture in which P goes further than D wishes, but foreseeably so, D has a measure of culpability for P’s act and V’s resulting death but usually at a lower level than P, D is guilty of murder.

In the instant case it was submitted that the unforeseen use of a knife was plainly so different from anything foreseen by Mendez that no jury could have found him guilty of murder on a proper direction.

Not guilty of murder, guilty of violent disorder
Commentary: This case has been reported as showing confusion of the law, but it appears that the law was simply misapplied in this case.
Whole case here

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