May be express or implied from circumstances.
R V Offor & Offor (1955).
A and B were charged jointly with murder of V. Each had struck V a violent blow with intent, at least, to cause grievous bodily harm. B had a cutlass, A had a stick. The cutlass cut V on the hand when V was defending himself against the attack. The blew from the stick hit his skull. V fell and died of fractured skull and cerebral hemorrhage.
Evidence was open to the construction that the intention of each accused person was suddenly formed and formed independently of each other. B and A were convicted of murder.
On appeal, A’s conviction for murder was set aside and one of attempted murder was substituted. Of the second Appellan (B), the counrt held:
“But the conviction of the second accused (B) could not be founded upon pre-conceived intention only. No doubt, he had a preconceived intention just as the first accused had. The intention of both accused was the same, each to cause grievous harm, but since the wound inflicted by B was not in fact the cause of death, it is necessary in order to sustain a conviction against B to establish that he was acting in furtherance of a common intention in conjunction with A to cause grievous harm. See 8 of the Criminal Code. It seems to us on the evidence that the intention of each accused was suddenly formed and formed independently of each other.”
“Common intention may be referred from circumstances disclosed in the evidence and should not be by express agreement, but a presumption of a common intention should not be too seriously applied. That proof of common intention is a condition precedent to conviction in this type of case is appreciated when it is remembered that if a combination of this kind is proved, a fatal blow, though given by one of the party is deemed in the eye of the law to have been given by all those present and aiding. The person actually delivering the blow is no more than the hand by which the others all strike. But on the evidence, it may be that A killed the deceased of his own impulse with a stick suddenly caught up.
Offor & Offors Case was distinguished in R v. Muonwen (1963). In the latter case, appellants in concert assaulted a police officer. One beat him with a baton, others with their fists. They threw the body, apparently lifeless into a river. The postmortem examination revealed bruises on the head, chest, knee, trachea and thyroid cartilage. The medical report was that the police officer died of strangulation. The evidence before the court was that the first appellant first attacked and beat the police officer with a baton and called on the other appellants to join him in the assault against the deceased. Appellants joined in the beating, using their fists. It was
not certain who strangled the deceased but they all joined in throwing him into the river in an apparently lifeless state.
In dismissing the appeal against conviction for murder the appellate court held that by obeying the call of the first appellant to assault the deceased, other appellants had evidenced a common intention with him.
Distinguishing Offors & Offor’s case, the court said:
“ In the present case, we consider that the odds of five to one, the use of the baton and signs of severe beating about the head, chest, and knee of the deceased, coupled with the throwing of his body into the river as soon as he appeared to be dead, all indicate an assault of such violence as to justify the judge in holding that there was a common intention at least to do grievous harm and that the killing of the deceased in circumstances amounting to murder was a probable consequence of the prosecution of that intention. In the result the appeals of the five appellants are dismissed”.
R V Alagba
The Judicial Committee Of the Privy Counsil approved the judgment of the West African Court of Appeal(WACA) to the effect that where on a murder charge, the evidences established that a deliberate and unprovoked attack of a kind likely to endanger human life and resulting as probable consequence in the infliction of grievous harm on one and the death of another was carried out in concert by all the accused in circumstances pointing irresistible to common design, the judge in dealing with the execution of common design, was correct in saying “it does not matter which of the accused did what”