Crim. Sass. 124-M-67, 18/10/67, Cross J.
Accused was charged with murder. There was evidence
that accused and many others responded to an alarm and found that deceased had
assaulted a woman and possibly also harmed her child. The crowd followed
deceased to another house where accused and others beat him. Accused was armed
with a large stick. It was not clear who had inflicted the fatal injury.
Held:
(1) Since death or grievous bodily harm was a probable consequence of the
attack upon deceased and the attackers acted with a common purpose, accused is
liable for the death even though he may not himself have struck the fatal blow.
(2) Although the defence of provocation was not raised by accused, the burden
was on the prosecution to prove malice aforethought and negative a defence of
provocation.
(3) It is reasonable to assume that the crowd included relatives
of the woman assaulted. If so, not only is accused liable for the probable
consequences of the common intention which he shared but he would also be
entitled to the benefit of any diminution of responsibility of the others provided
by law. Thus, accused has sustained his onus of raising a reasonable doubt as
to the existence of provocation. Accused convicted of manslaughter.
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