R. v. Usumau s/o Mpangani, Crim. Sass. 124-M-67, 18/10/67, Cross J.

R. v. Usumau s/o Mpangani, Crim. Sass. 124-M-67, 18/10/67, Cross J.

Accused was charged with murder. There was evidence that accused and many others responded to an alarm and found that deceased had assaulted a woman and possibly also harmed her child. The crowd followed deceased to another house where accused and others beat him. Accused was armed with a large stick. It was not clear who had inflicted the fatal injury.

            Held: (1) Since death or grievous bodily harm was a probable consequence of the attack upon deceased and the attackers acted with a common purpose, accused is liable for the death even though he may not himself have struck the fatal blow. (2) Although the defence of provocation was not raised by accused, the burden was on the prosecution to prove malice aforethought and negative a defence of provocation. (3) It is reasonable to assume that the crowd included relatives of the woman assaulted. If so, not only is accused liable for the probable consequences of the common intention which he shared but he would also be entitled to the benefit of any diminution of responsibility of the others provided by law. Thus, accused has sustained his onus of raising a reasonable doubt as to the existence of provocation. Accused convicted of manslaughter.