Howes (FMS) AGCJ:

The judgment of the Court (HOWES A-G CJ (FMS), TERRELL A-G CJ (SS) & AITKEN J) was as follows:

In this appeal three grounds have been argued; the first being that "the learned Judge was wrong in his direction of the law in the case of murder."

In particular, Mr. Farr, the Advocate assigned to the appellant, argued that the learned Judge was incorrect in his statement of the law as regards 'common intention' which was:-

If two or more persons armed with weapons jointly and in common attack a man, then it matters not which of them strikes the blow. The common intention is to attack the man with weapons. In a case such as that each person, whether it be one or more, is equally guilty in just the same way as if there were only a single assailant.

The law as to common intention was considered at length in the case of Rex V. Vincent Banka & Anor. (5 MLJ 66) by the Court of Criminal Appeal in Singapore. In that judgment (at p. 70) it was stated:

The learned Judge should have told the jury, in effect, that they had first to be satisfied as to the identity of the robbers; that then, if so satisfied, they had to consider the further question whether on the evidence placed before them they were satisfied as to the existence of a common intention between the robbers not merely to commit robbery but, if necessary, to kill the deceased, ... and that they could not properly convict either of the accused of murder unless they were satisfied that this common intention existed.

That judgment was, however, considered and explained in the later case of Rex V. Chhui Yi (5 MLJ at p. 180) by the Court of Appeal at Singapore, in the following terms:

The Court recently considered this question in the case of R v. Banka & Anor, where the terms of s. 34 of the Penal Code were summed up in the following phrase:- 'Under the terms of that section - there must exist a common intention to commit the crime actually committed, and it is not sufficient that there should merely be a common intention to behave criminally.' That does not, of course, mean that, in the case of murder, there need have been a common intention actually to kill but there must have been a common intention to do any of the acts which are described in ss. 299 and 300 of the Penal Code and the doing of which, if death in fact results, amounts to murder.

If the assessors believed the evidence of Kernail Singh (p. 5) that he saw the appellant strike the deceased with the knife and that Naranjan Singh struck him also with his knife; then the learned Judge's direction (which follows the principle laid down by the Court of Appeal in Rex V. Chhui Yi , supra) was a perfectly correct statement of the law on the subject. The intention of an accused person can only be Judged by his acts; and if one or more persons attack another, who is unarmed, with knives in such a manner that death results, it may be presumed that they did so with the intention of causing such bodily injury as was sufficient in the ordinary course of nature to cause death.

The first ground of appeal, so far as it relates to the direction by the learned Judge on common intention, therefore, fails, because if the evidence was accepted, there was clearly a common intention by both the appellant and Naranjan Singh.

The second ground of appeal was that 'there was non-direction on certain facts in favour of the accused by the learned Judge.'

The third ground was 'that the conviction was against the weight of evidence.'

These two grounds can be considered together, and the following points in the evidence and summing up, appear to the Court to be relevant.

1. The doctor's evidence as to the blows. The doctor described the injuries in sequence, and numbered them 1 to 16. He said:-

Wound no 1 was a necessarily fatal wound; it must have been fatal itself. I doubt if the man could have walked after receiving wound no 1. I would say that death would be more or less instantaneous after receiving that wo