Farquharson v The Queen
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1973 |
| Date | 1973 |
| Year | 1973 |
| Court | Privy Council |
Bahama Islands - Crime - Homicide - Joint murder charges under Penal Code - Common design - Joint responsibility - Direction to jury - Whether common law considerations applicable -
Section 336 of the Penal Code (Bahama Islands) provides:
“Whoever intentionally causes the death of another person by any unlawful harm is guilty of murder, unless his crime is reduced to manslaughter by reason of such extreme provocation, or other matter of partial excuse as in this Title hereafter mentioned.”
Section 337 provides: “Whoever commits murder shall be liable to suffer death: …”
The appellant, who was unarmed, together with two other men, who were armed, one with a cutlass, the other with a pistol, broke into a dwelling house at night with the object of theft. The inhabitants of the house were disturbed and one of the appellant's associates shot and killed the householder. The appellant did not by his own hand do any unlawful harm to the deceased. The three men were charged jointly with murder contrary to section 337 of the Penal Code. In summing up the judge directed the jury that if they were satisfied that the three accused had combined to effect a common object, to break and enter the dwelling house, and that common design included the use of whatever force was necessary to achieve that object, including their escape if resisted, even if that force involved killing or doing grievous harm, then if one of them in pursuance of that common design used such force with fatal results they were each and all responsible for the consequences. The jury returned a verdict of guilty of murder against all three accused. The appellant appealed to the Court of Appeal against his conviction on the ground, inter alia, that the Penal Code did not create the offence of murder by two or more persons being concerned together and the common law principle of joint responsibility for acts done in pursuance of a common design did not obtain under the law of the Bahama Islands. The Court of Appeal dismissed the appellant's appeal.
On appeal by special leave to the Judicial Committee: —
Held, dismissing the appeal, that if the conviction could not be supported under the provisions of the Penal Code it could not be saved by reference to a common law crime of murder as being an offence with which the appellant could have been, but was not, charged; but that joint responsibility of the participants in such a crime as the present was imposed by the Penal Code itself and did not depend upon considerations of the common law of murder, although the liability of persons jointly responsible in terms of the Penal Code did not differ from that under the common law (post, pp. 602B, 603B–E).
The following cases are referred to in the judgment:
Bank of England v. Vagliano Bros. [
Director of Public Prosecutions v. Smith [
Ferguson v. The Queen (unreported, Bahama Islands Criminal Appeal No. 13 of 1966).
Rolle v. The Queen (unreported, Bahama Islands Criminal Appeal No. 14 of 1966).
The following additional cases were cited in argument:
Dullewe v. Dullewe [
Khan v. Ariyadasa [
Liew Sai Wah v. Public Prosecutor [
Mohan v. The Queen [
Pillai v. Comptroller of Income Tax [
Reg. v. Allan [
United Marketing Co. v. Kara [
Wallace-Johnson v. The King [
APPEAL (No. 19 of 1972) by special leave from a judgment (March 23, 1972) of the Court of Appeal of the Bahama Islands (Bourke P., Archer and Hogan JJ.A.) dismissing an appeal by the appellant, Philip Farquharson, against his conviction by the Supreme Court on its criminal side (Smith J. and a jury) for the offence of murder contrary to section 337 of the Penal Code in respect of which he was sentenced to death.
The facts are stated in the judgment of their Lordships.
L. Kadirgamar for the appellant.
J. G. Le Quesne Q.C. and Gerald Davies for the Crown.
December 19. LORD PEARSON announced that their Lordships would humbly advise Her Majesty that the appeal be dismissed, and that their Lordships would give their reasons later.
February 5, 1973. The reasons for their Lordships' judgment were delivered by LORD KILBRANDON.
At the conclusion of the hearing of this appeal, their Lordships announced that they would humbly advise Her Majesty that the appeal be dismissed. Their Lordships now give their reasons.
The appellant is one of three men who were convicted in the Supreme Court of the Bahama Islands upon charges, brought under the Penal Code of the Bahamas, of murder, attempted murder, armed robbery and burglary. All appealed, unsuccessfully, to the Court of Appeal of the Bahamas. One, Farquharson, appeals by leave against the judgment of that court; the other two men do not.
It is necessary to state the facts upon which the convictions proceeded only in the broadest outline, since they are not now disputed. In the early hours of the morning of April 21, 1971, the three men, Pinder, Darling and the appellant, broke into a dwelling house. Pinder had a 22 calibre pistol in his hand, while Darling carried a cutlass. The appellant was unarmed. The object of the break-in was theft, and there was evidence that the appellant stole some property. The inhabitants of the house were disturbed. Pinder fired two shots, one of which killed the householder, the other of which wounded the householder's wife. There was inconclusive evidence of slight injury by the cutlass to the householder's daughter. The planning of the break-in and its execution were described in a statement made by the appellant...
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