Appeal from jury second degree murder conviction. Appellant and young offender had common design to enter into a house and commit assault. Altercation ensued in which the appellant stabbed the victim multiple times. After the appellant walked away, the young offender stabbed the victim in the back, severing his aorta.
Held: Appeal allowed, new trial.
No air of reality to liability for murder under s 21(2). “[T]here was no evidentiary basis upon which a reasonable jury could conclude that the appellant had the subjective knowledge required for unlawful common purpose murder … the accused must actually have known that murder was a probable consequence of carrying out the common purpose”. Further, the jury charge was deficient in failing to link evidence to the elements of the offence under s 21(2), given the complex nature of the case and the multiple routes that would require the jury to draw inferences.
M. Bates – Defence Counsel