Transferred Malice, Joint Enterprise and Attempted Murder

AuthorTony Storey
Publication Date01 Jun 2014
DOI10.1350/1740-5580-78.3.214
SubjectCourt of Appeal
/tmp/tmp-17T6f15XFvrsa8/input The Journal of Criminal Law
rely upon s. 124 to adduce evidence which goes to the credibility of the
maker of the statement, the requirements of s. 100 must be satisfied.
Emma Piasecki and Michael Stockdale
Transferred Malice, Joint Enterprise and
Attempted Murder
R v Grant (Nathaniel) [2014] EWCA Crim 143
Keywords Attempted murder; Transferred malice; GBH with intent; Joint
enterprise
Nathaniel Grant, Kazeem Kolawole and Tony McCalla were all charged
with a single count of attempted murder and two counts of inflicting GBH
with intent. They were tried before Judge Stephens QC and a jury at the
Old Bailey in March 2012. The Crown’s case was that the three defendants
were members of, or associated with, the Grind and Stack gang (GAS) or
Organised Crime/One Chance gang (OC). Shortly after 9 pm in March
2011, the three defendants, on bicycles, had pulled up outside the
Stockwell Food & Wine shop in south London, directly after Roshaun
Bryan had run inside. Bryan was, or was suspected to be, a member of a
rival gang, the All ’Bout Money gang (ABM). One of the defendants—
Grant—fired two shots into the shop. One bullet hit and paralysed a five
yearold girl, Thusha Kamaleswaran, whose uncle owned the shop; the
other hit, and remains in the head of, a customer, Roshan Selvakumar.
Bryan was unhurt.
During their trial, the defendants contended that the charges of
attempted murder and GBH with intent were mutually inconsistent, as
they involved the same actus reus but different mens rea: intention to kill
visàvis intention to do GBH. However, the trial judge ruled that if a
defendant shot with the intention of killing, he intended to cause at least
really serious bodily harm. The lesser intent may be subsumed in the
greater. Moreover, a single act could amount to more than one offence,
and the relevant counts in the indictment were not mutually exclusive.
The jury convicted on all three counts and the trial judge imposed life
sentences on all three defendants. Grant (the gunman) was sentenced to
a minimum term of 17 years’ imprisonment, while Kolawole and McCalla
were given minimum terms of 14 years each. The defendants appealed,
essentially repeating their submissions at trial.
Held, dismissing tHe appeals, there was ‘no rule of law nor any legal
principle nor any policy ground’ which supported the appeal. The
appellants’ intention to kill Bryan included an intention to cause him GBH
(at [35]). Proof of the mens rea for attempted murder ‘by definition’
involved proof of the mens rea for causing GBH with intent (at [36]). A
finding of intention to kill (count 1) led ‘inevitably’ to a finding of intention
214

Transferred Malice, Joint Enterprise and Attempted Murder
to cause GBH (counts 2 and 3)—this was ‘the consequence of the hierarchy
of intent, with intention to kill at the top’. It was ‘impossible’ to kill without
causing really serious harm (at [40]). Nor were the various charges
‘mutually exclusive or inconsistent’ (at [37]).
Commentary
The present case raises two main issues: the scope of the transferred malice
doctrine and the scope of the joint enterprise doctrine.
Transferred malice
It is trite law that if D fires a gun at V, intending to kill V, but the bullet
misses and instead hits and kills W (an innocent bystander), then D is
guilty of the murder of W, as well as the attempted murder of V (R v
Gnango [2011] UKSC 59, [2012] 1 AC 827). D’s mens rea with respect to his
intended victim (V) is ‘transferred’ to the unintended victim (W). As Lord
Mustill explained in Attorney-General’s Reference (No. 3 of 1994) [1998] AC
245 at 262:
The effect of transferred malice … is that the intended victim and the...

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