Wednesday, 14 December 2011

Supreme Court - R v Armel Gnango - murder

In 2008, Armel Gnango was convicted at the Old Bailey of the murder of Magda Priewska.  There was a "shoot out" between Gnango and another man ("Bandana Man").  Magda came innocently upon this event and was killed by a shot to her head.   It was established that Bandana Man fired the fatal shot. He was not arrested.  At the trial, the judge (Cooke J) directed the jury on the basis of joint enterprise and Gnango was convicted of murder.  The murder conviction was quashed by the Court of Appeal - judgment July 2010.  The prosecution appealed to the Supreme Court which has, by a 6 to 1 majority, restored the conviction for murder but has done so on a different legal basis - see R v Armel Gnango [2011] UKSC 59.

Bandana Man would have been guilty of Magda's murder on the basis of transferred malice.  The Supreme Court held that Gnango had aided and abetted Bandana Man's attempt to kill him and, although the bullet meant for him killed Magda, he shared the transferred malice liability of Bandana Man.

The various judgments are very much based on policy considerations.  As Lord Brown put it (at paras. 68 and 69): - " ... to my mind the all important
consideration here is that both A and B were intentionally engaged in a potentially lethal unlawful gunfight (a “shoot-out” as it has also been described) in the course of which an innocent passerby was killed. The general public would in my opinion be astonished and appalled if in those circumstances the law attached liability for the death only to the gunman who actually fired the fatal shot (which, indeed, it would not always be possible to determine). Is he alone to be regarded as guilty of the victim’s murder? Is the other gunman really to be regarded as blameless and exonerated from all criminal liability for that killing? Does the decision of the Court of Appeal here, allowing A’s appeal against his conviction for murder, really represent the law of the land? To my mind the answer to these questions is a plain “no”

The case is also interesting for the point that the jury had been directed on a legal basis (joint enterprise).  The applicability of this was rejected both in the Court of Appeal and the Supreme Court.   ( "Common purpose" could hardly exist between two individuals who actually had very different purposes!)  It seems that whatever view the jury may have taken of the facts, the Supreme Court considered that the outcome would have been the same had the jury been directed about the law as laid down in the Supreme Court. 

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