4
as to the identity of the persons attacking each of the victims made
an express warning necessary in the present case. In our view the
evidence of the witnesses was not irreconcilable and the jury were
sufficiently alerted to the risk inherent in accepting the
identification evidence although the learned judge did not give them
a direct warning on the subject.
A further misdirection was alleged in an exchange between
the judge and counsel at the end of the summing-up, counsel for the
Crown being anxious to have an additional direction on the issue
of common intent:
'MR. LI:
I ask for your Lordship's indulgence on one or two matters. On the doctrine of common intention, perhaps the Jury may be told that apart from the agreement, scheme of common intention, they have to be satisfied that there were some actions on the part of either or both of these accused in the sense of encouragement or taking part in a general attack. Mere agreement itself is not enough.
You must
COURT: Yes, that certainly is so. be satisfied that they were there consenting and encouraging and intending to encourage the violence which occurred. 11
As we understand the arguments which have been advanced on behalf of both Appellants they amounted to this: (1) that although this was a correct direction as far as it went, the judge should have gone on to point out what evidence there was that the Appellants "were there consenting and encouraging and intending to encourage the violence which occurred"; (2) that by not clearly distinguishing between the encouragement of "a general attack" and "the violence which occurred"
the judge allowed the issue to become confused. What counsel for
the Crown appears to have feared was that the judge's charge to the jury might be taken as suggesting that the existence in the Appellants of a common intent to kill or to cause grievous bodily harm was by itself enough to make the Appellants guilty of murder. In other words he wished the judge to distinguish between murder and conspiracy to murder. The purpose of the intervention was summed up in the final sentence, "Here agreement itself is not enough", but it is not clear that the learned judge appreciated this: his emphasis seems to us to have been on one of the things which counsel submits were not sufficiently emphasised, namely the distinction between encouraging a general attack and encouraging the violence which occurred. It is