R v Gnango

Facts

The defendant and a man known as Bandana Man engaged in an exchange of gunfire in a public place. A bystander was struck by a bullet fired by Bandana Man and died. The defendant had also fired a gun in the exchange, but it was not his bullet that killed her.

History

The defendant was convicted of murder at trial. The Court of Appeal quashed the murder conviction, holding that he was not guilty of murder on the basis of either joint enterprise or transferred malice. The Crown appealed to the Supreme Court.

Issue

Whether a person who takes part in a mutual shoot-out can be convicted of murder when an innocent bystander is killed by a bullet fired by the other participant, in particular on the basis that he aided and abetted the other participant, and whether the doctrine of transferred malice can apply to a secondary party.

Held

Appeal by the Crown allowed by a majority and the conviction for murder restored.

Ratio

• A person who voluntarily takes part in a fight with firearms, intending to kill or cause serious harm to the other party, encourages and assists that other party to shoot at him; he is therefore a secondary party to the crime of the other.
• If the other party kills an innocent bystander in the course of the exchange with the intention to kill the defendant, he is guilty of murder by transferred malice, and the defendant as an aider and abettor is likewise guilty of murder.
• The doctrine of transferred malice applies to the liability of the secondary party, so that the intention of the principal to kill another person is transferred to the actual victim in the same way for both.

The judgments

Key reasoning

• The relevant act of encouragement was the willing participation of the defendant in the shoot-out, which both invited and sustained the shooting at him.
• The usual rule is that the secondary party is liable for the same crime as the principal, and the principal was guilty of murder of the bystander by transferred malice, so the defendant was liable on the same footing.
• The decision was limited to the situation where the defendant was a willing participant in a fight he could have avoided, which meant that the question of self-defence did not arise.

Where it fits in the module

Topic 6 on complicity turns on the proper scope of secondary liability and on how it interacts with principles such as transferred malice. Gnango tests the boundaries of the concept of encouragement and the limits of the principle that a party shares the guilt of the principal, and it invites debate about fair labelling when a person is convicted of murder for a death caused by the bullet of another.

Criticisms

• It is artificial to say that the defendant aided and abetted an attack on himself, and the reasoning stretches secondary liability to a case where no one was assisting the other to harm a third party.
• Applying transferred malice to a secondary party means that murder liability for the death of an unintended victim is built on two layers of legal fiction, which is hard to defend as principled.
• The more natural analysis was that the defendant was guilty of firearms offences and attempted murder or, at most, manslaughter, so the decision may blur the distinction between participation in a dangerous fight and responsibility for a death caused by another.
• The majority limited its reasoning to cases of voluntary participation in a fight, but the boundary is unclear where one party fires in what could be self-defence or after retreat.