Is doctrine of common purpose just?
. . . from Page 12
to cases of culpable homicide i.e. killing without intention, theft and fraud.
Another criticism of this doctrine, is that though its application may in certain instances, be justified on the ground that the participants acts amounted to a unitary act or collective act, each participant’s liability is based on his participation in the collective act which caused the death of the victim.
However, the concept of a collective act, in which the “act” is broadened so as to include the total onslaught by a number of people on the life of the deceased, as contrary to the generally accepted principle that an “act” in criminal law has to be a voluntary act. This is generally referred to as the defence of automatism in our law.
In R vs Dlamini, on a charge of murder it appeared that the accused who shared a hut with the deceased and others, had just half-awakened out of a nightmare when he stabbed the deceased three times with a knife as the latter has stooped down to pick up a mat where the accused was sleeping. The court held that he was acting without motive, without volition and without intention. Voluntariness to the act therefore in the principle of common purpose is lacking which is the basic essential element in criminal law.
The other criticism of the doctrine is that this conviction is based on implied mandate which is a principle of the law of contract and it is submitted, cannot therefore be readily applied in criminal law. The simplest example is that of a passenger who boards a bus to ferry him to his destination, thereby entering into contract of carriage, the price being the fixed or normal face.
The other criticism of this doctrine is that it is repugnant to the general principles of criminal law that a person can be held liable only in respect of occurrences which he caused.
One of the essential elements of a valid contract which the doctrine impliedly seems to
Shao Makhethe Jone. have invoked is that the promise made for an illegal or immoral purpose, as for instance, to commit fraud or homicide, killing of a human being, is void. On the basis of this argument therefore, some scholars, academics and lawyers do not appreciate nor agree with the contention that a person can be held criminally liable on the basis of a mandate that is invalid and contrary to good public morals.
The doctrine of common purpose therefore imputes criminal liability on the participants involved in criminal liability for all that results from such activity. The parties must share a common purpose and make it clear to each other by their actions that they acting on their common intention, so that each member of the group assumes responsibility for the other members of the group.
In view of this criticism and the requirements for the application of the doctrine of common purpose, it would make for a very insightful public discourse on the merits and de-merits of this important doctrine of our criminal law among, scholars, academics and lawyers. It would further guide the courts on how best to apply or refine the doctrine so as to reach a justifiable verdicts.
US Ambassador to Lesotho Matthew Harrington.