Anton Bastian v The King (Bahamas)

In joint enterprise cases, secondary liability requires proof that the defendant intended to assist or encourage the principal to commit the offence with the mental element required for that offence. For murder, this requires an intention that the principal should act intending to kill, which may be conditional. Foresight that the principal might kill is evidence from which intention may be inferred, but is not an alternative mens rea. Knowledge of a weapon is likewise evidence relevant to intention, not proof of intention, and must relate to a time before the weapon was used. The jury must determine the scope of the common purpose and whether it included the charged offence. Where the evidence obviously raises lesser alternatives, the trial judge must leave them to the jury.

The appellant was convicted of murder and two counts of armed robbery after a jury trial in The Bahamas. The prosecution alleged that he joined a plan to rob two women and that a co-defendant, Craig Johnson, shot and killed a witness. The appellant denied making the only admissible statements relied on against him and advanced an alibi.

The Court of Appeal of The Bahamas dismissed his appeal on 18 October 2018. The Privy Council considered whether the directions on joint enterprise, intention, the scope of the agreement, weapon knowledge, alternative verdicts and separate consideration of the defendants’ cases were adequate.

1. Appeal allowed in part. The directions on joint enterprise were seriously defective. The jury should have been directed that secondary liability required an intention to encourage or assist the principal to commit the offence with the required mental element. For murder, that meant a shared, possibly conditional, intention that Johnson should act intending to kill. Foresight or knowledge that he might use the gun to kill was insufficient in law, although it could be evidence of intention. An intention that a gun should be used was similarly required for armed robbery.
2. The jury was not properly directed to determine the scope of the common purpose, including whether it extended beyond robbery to armed robbery or to the use of lethal force with intent to kill. The judge also wrongly treated knowledge of the gun as sufficient to establish liability and failed to direct the jury to determine when the appellant acquired that knowledge. It had probative value only if acquired before the gun was fired.
3. Section 12(3) of the Penal Code did not assist the prosecution. It concerns the inference of intention from the foreseeable consequences of an intended act. It cannot convert an act outside the agreed common purpose into an intended act by a secondary party, or replace the requirement that the secondary party intend the principal to act with an intention to kill.
4. The failure to leave lesser alternatives was also material. The ambiguous statement attributed to the appellant could have been understood as showing knowledge of the gun only when it was produced. The jury should therefore have been asked to consider manslaughter as an alternative to murder and robbery as an alternative to armed robbery. These were alternatives obviously raised by the evidence within the approach in R v Coutts [2006] UKHL 39.
5. The separate-consideration direction was adequate. The general directions were clear and emphatic, and the jury would have understood that each defendant’s case had to be considered separately. The proviso to section 13 of the Court of Appeal Act could not cure the fundamental errors.
6. The murder and armed robbery convictions were quashed. A robbery conviction was substituted. The matter was remitted to the Court of Appeal to consider whether to order a retrial for manslaughter and for resentencing on robbery. The Board observed that written legal directions would assist juries in complex criminal trials.

• Court of Appeal of the Commonwealth of The Bahamas: dismissed the appellant’s conviction appeals on 18 October 2018.
• Privy Council: allowed the appeal on Grounds 1 and 2, rejected Ground 3, quashed the murder and armed robbery convictions, substituted a robbery conviction, and remitted the matter for consideration of a manslaughter retrial and for resentencing.