Joint Criminal Enterprise

The primary question for consideration is whether or not Dino, Benji and Tony were involved together in a joint criminal enterprise so that each are equally liable for the criminal conduct of the other under the doctrine of criminal complicity. In assigning liability under the principles of criminal joint ventures it is necessary to determine whether or not the offences committed were a part of the joint criminal venture.

Separate and apart from criminal joint ventures the questions of causation and intention arises with respect to Roberta’s death and the death of Benji. Joint Criminal Enterprise The principle law with respect to a criminal joint enterprise under the doctrine of criminal complicity was enunciated by Parker CJ in the case of R. v Anderson; R. v Morris [1966] 2 Q. B. 110 as follows: “…

where two persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise, that that includes liability for unusual consequences if they arise from the execution of the agreed joint enterprise but (and this is the crux of the matter) that, if one of the adventurers goes beyond what had been tacitly agreed as part of the common enterprise, his co-adventurer is not liable for the consequences of that unauthorised act. ”

In order to establish liability under the legal framework of a joint criminal enterprise it is necessary for the prosecution to prove that the criminal offences committed were previously planned or were reasonably contemplated as a part of the common purpose. In other words a secondary offender can be found guilty of the principle offender’s conduct if the principle offender’s conduct was foreseeable. In order to apply the law to the facts of Tony, Dino and Benji’s case further analysis is necessary.

The facts reveal first off that Dino, Tony and Benji agreed to rob Unmarket Provisions and that the proceeds of the robbery would be used to aid Tony’s mother who was in need of a kidney transplant. It makes no difference to criminal liability whether the purpose was novel or not, therefore the kidney transplant is not relevant to the offences committed, although it may represent a mitigating circumstance for the purposes of sentencing. In any event, Dino, Tony and Benji did in fact have a criminal common design and that was the robbery. Far less certainty attaches to the question of Dino’s conduct and the consequential crimes that followed.

Although Dino did not enter the premises at Unmarket Provisions he was still physically present pursuant to the joint criminal venture and facilitated the commission of the robbery by driving the car and acting as a look-out. The law generally takes the position that once it is determined that the parties had a common design and conducted themselves in furtherance of that common design, criminal liability is shared equally. If a party goes outside that common design and engages in criminal activities that are not tacitly agreed between the parties then the other parties will not be complicit in these outside acts.

Dino embarked on a course of events that were separate and apart from the robbery, albeit in contemplation of facilitating the principle offenders’ escape. He stole a motor cycle and rode it erratically to distract two uniformed police officers who were about to enter the store. In the course of doing so Dino collided with and injured Roberta who eventually died as a result of the injuries sustained and her refusal to authorize life saving medical measures.

The question the turns on whether or not in the circumstances Dino’s conduct with respect to the motorcycle was such that it was reasonably within the contemplation of Tony and Benji and therefore tacitly agreed between them. Sir Robin Cooke states the position as follows: “It turns on contemplation or, putting the same idea in other words, authorization, which may be express or is more usually implied. It meets the case of a crime foreseen as a possible incident of the common unlawful enterprise. The criminal culpability lies in participating in the venture with that foresight. ”

In other words, if it can be inferred that Tony and Benji could have reasonably contemplated that Dino would have taken the steps that he did and cause the injuries that he did they would also be liable for Roberta’s death and/or injuries criminally. Likewise, using the same hypothesis of law as stated by Sir Robin Cooke, Tony and Benji would also share criminal responsibility for the theft of the motor cycle. On the facts of the case for discussion, the common design was the robbery of the store and in order to facilitate the crime Tony and Benji wore balaclavas and were carrying syringes while Dino drove the get-away car.

Certainly it can be argued that based on the facts neither Benji or Tony could have contemplated that Dino would wander off and steal a motor bike. This possibility cannot be reasonably inferred from the facts of the case given the fact that Dino was already driving a company car. However, colliding with a pedestrian as he did could easily have been within Tony and Benji’s contemplation since Dino drove the get-away car. LJ Hutton stated in R v Powell; R v English [1999] 1 AC 1 that: “There is…

a strong line of authority that participation in a joint criminal enterprise with foresight or contemplation of an act as a possible incident of that enterprise is sufficient to impose criminal liability for that act carried out by another participant in the enterprise. ” Foresight or contemplation of the theft of the motorbike is required to make Tony and Benji liable for Dino conduct. As previously stated, given the nature of the common design and the mode of dress and weapons used, theft of a motor bike could not have been contemplated by either party and as such Dino was off on a frolic of his own.

The collision however, could have been reasonable contemplated since Dino drove the get-away car but given that the collision occurred as a result of Dino’s departure from the common design he alone is liable for harm or death suffered by Roberta. The same arguments apply to the injuries sustained by the Bus conductor. Causation and Intention Dino’s conduct set off a chain reaction which resulted in the deaths of Benji and Roberta. While Dino’s conduct did ultimately bring about the deaths of both Roberta and Benji there were intervening factors.

For instance in Benji’s case, the police officer responding to the commotion brought about by Dino’s conduct discharged a firearm which killed Benji immediately. On the facts of the case for discussion, Dino reasonably contemplated that the police would respond to his activities. Certainly he ought to have contemplated that the police would indeed use force if necessary to restrain him. It is doubtful however, that he would have foreseen that the police might respond with the discharge of a firearm in the circumstances.

It therefore follows that the police officer responding as he did does not confer liability for Benji’s death on Dino. The question then turns on whether or not the police officer is criminally liable for Benji’s death. Murder which requires a specific intent to cause grievous bodily harm or death can be inferred from the mere fact that the police officer used a firearm. However, when one considers that Tony and Benji were dressed in balaclavas, headgear that usually only leaves the eyes exposed and carrying syringes appeared on the scene and when order to stop only Benji heeds the police warning.

Moreover, the police officers were dazed and in a state of shock. It is difficult to infer that there was a specific intention to cause injury or death. In fact the discharge of the firearm was no more than a gesture to get Tony to stop. In the absence of an intent to cause death or serious harm the police officer is not guilty of the crime of murder and Benji’s death upon a construction of the facts and circumstances is no more than an accident.

With respect to Roberta’s death, all that the prosecution is required to prove is that Dino’s conduct brought about Roberta’s death in order to substantiate a charge of unlawful homicide. The prosecution will not be required to prove that Dino’s conduct was the main and/or only cause of Roberta’s death. The fact that there were intervening medical conditions will not provide Dino with a defence as a result of the application of the “thin skull rule. ” Under the thin skull rule the accused person must take his victim as he finds him or her.

In the circumstances of the case for discussion and the applicable ambit of criminal liability it is likely that Dino can be successfully charged with manslaughter. In the case of R v Hayward [1908] 21 Cox CC 692 a man pursued his wife in the streets where he threatened and kicked her. The wife suffered from a medical condition which made her particularly vulnerable to physical aggression and as a result of both her medical condition and her husband’s assault she died. The husband and subsequently convicted of manslaughter. In R v Dear [1996] Crim L. R.

595 the court ruled that the question was whether or not the actual injuries were brought about by the defendant’s conduct and significantly caused the death of the victim or significantly contributed to the victim’s death. Ultimately, Roberta suffered from a pre-existing medical condition which renders her bone structure brittle. She suffers multiple fractures as result of the collision with Dino and requires a blood transfusion to replenish her blood. As a devout Jehovah Witness, Roberta will not accept the blood transfusion. Even so, these are not matters that can mitigate Dino’s culpability under the thin skull rule.

While it can be argued that Dino in riding the motor bike as he did in an erratic manner could have reasonably foreseen that death or serious harm would have followed, foresight of consequences does not automatically translate into intention. In R. v. Belfon, [1976] 3 All E. R it was noted that: “… foresight and recklessness are evidence from which intent may be inferred but they cannot be equated either separately, or in conjunction with intent. ” The proper test was set forth by Lane J in R v Nedrick (1986) 83 Cr App 267 and is as follows:

“…where the charge is murder and the simple direction is not enough, the jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty as a result of the defendants actions, and that the defendant appreciated that such was the case. ” Applying the virtual certainty test as stated in R v Nedrick it is not a virtual certainty that Dino would have known that a collision with a pedestrian on his motor bike would have resulted in the serious injuries that required life saving medical treatment.

Neither could Dino have been virtually certain that the victim would have refused life saving medical treatment. Conclusion Based on the forgoing discussion Dino, Benji and Tony are equally complicit in the robbery of Unmarket Provisions. However, since Dino departed from the joint venture and went on what is properly described as a frolic of his own, Benji and Tony are not criminally liable for Dino’s conduct with respect to the motor cycle. Benji’s death although brought about by Dino’s conduct was a remote possibility thereby absolving Dino of criminal responsibility for Benji’s death.

Since the police officer did not have a specific intention to cause serious injury or death and was merely executing his duty as a peace officer, Benji’s death was purely accidental. The injuries sustained by the bus inspector were not remote and were brought about by Dino’s erratic driving and can amount to battery. Roberta’s death, although caused by her refusal to accept a blood transfusion was significantly caused by Dino and he is therefore criminally liable for her death. Since Dino did not have the specific intent required to substantiate a murder charge he can be successfully charged with manslaughter.

Bibliography Ashworth, Andrew. “General Principles of Criminal Law” cited in Feldman, David (Ed) English Public Law. London: Oxford University Press, 2004 Attorney General’s Reference No. 3 of 1994. (HL) http://www. number7. demon. co. uk/hol/frames/01/44. htm Viewed September 28, 2008 Chan Wing-Su v the Queen [1985] AC 168 Mohan [1976] QB 1 R. v Anderson; R. v Morris [1966] 2 Q. B. 110 R. v. Belfon, [1976] 3 All E. R R v Dear [1996] Crim LR 595 R v Hayward [1908] 21 Cox CC 692 R. v Hyde [1991] 1 QB 134 R v Nedrick (1986) 83 Cr App 267 R v Powell; R v English [1999] 1 AC 1