Question 5 [20]

X, P and Q decide to kill their enemy, Y. Because they do not know where to find him, they go to R to find out his (Y's) address from him. When R gives them Y's address, he is unaware of their plans to kill Y. X, P and Q ask S to transport them with S's car to Y's house, to wait outside for them and then, after they had completed their business and jumped into the car, to drive away as fast as possible. S agrees to do it for a fee. He does not ask them about the purpose of their visit, but nevertheless has a strong suspicion that they intend to kill Y. His suspicion is based, inter alia, on their request that he should keep his car's engine running and its doors open while they are in Y's house, so that they can jump into the car and get away as fast as possible afterwards. They also agree with T that he will stand guard for them in the vicinity of Y's house and warn them with a whistle if Y's friends or the police come to Y's house while they are there. T knows that they intend on killing Y.

The events take place according to plan. S transports X, P and Q to Y's house. X, P and Q jump out of the car and storm into Y's house. When Y, who is in his house, sees the three of them rushing into his house, he flees through the back door. While Y desperately tries to scale a high wall surrounding the backyard, X, P and Q throw stones at him. One of the stones strike him on the head, he falls over backwards and dies. X, P and Q quickly run back to the car, jump in, and race away in the car, driven by S.

X, P, Q, R, S and T are all charged with having murdered Y. The evidence led at the trial reveals that, although X, P and Q all threw stones at Y, some of the stones did not hit him, whereas some of the stones which did hit him, caused only minor injuries of a non-lethal nature. One heavy stone, which struck him against the temple, caused his death. However, it is impossible for the court to find whether it was P, X or Q who threw this heavy stone at Y.

With reference to relevant case law, discuss the question whether the six accused ought to be convicted of murder.