R v Gnango [2011] UKSC 59

Key points
  • A victim can be an accessory to a crime in which he is intended victim
  • Under the doctrine of transferred malice, the intended victim of a primary offence can be an accessory where the offence was accidentally inflicted on a third party
Facts
  • Gnango (D) was engaged in a gunfight with X, X accidentally shot a passer-by
  • D was charged with aiding and abetting the murder of the passer-by

Held (Supreme Court)
  • D was guilty of murder as an accessory and based on the transferred malice
Lord Phillips with Lord Judge
  • The decision in Tyrrell is best interpreted as being based an implied term into the statutory offence as the reasoning was on the implied intention of Parliament: [48]
  • There is no common law rule that prevents someone from being guilty for aiding and abetting a crime in which he is the intended victim: [52]
  • The direction of the judge required the jury to consider whether the A and B had a ‘common plan or agreement to shoot at each other and be shot at. If they were so satisfied, and their verdict indicates that they were, this was a proper basis for finding that the respondent was guilty of murder.’: [58]
  • ‘A guilty verdict in this case involves a combination of common law principles in relation to aiding and abetting and the common law doctrine of transferred malice’: [60]
  • The ‘demands of justice’ requires D to be guilty for murder since ‘it is a matter of fortuity matter of fortuity which of the two fired what proved to be the fatal shot. In other circumstances it might have been impossible to deduce which of the two had done so’: [61]
Lord Brown, Lord Clarke
  • Gnango should not be regarded as an accessory to murder but a principal
Commentary
  • A difficulty with this decision is that D never intended for himself to be shot by X, which was acknowledged at [55], but nonetheless the principle of transferred malice applied
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