Regina v. Cunningham

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Regina v. Cunningham
[1957] 2 Q.B. 396
Court of Criminal Appeal
BYRNE J.
. . . The appellant was convicted . . . upon an indictment
framed under section 23 of the Offences against the Person Act which charged
that he unlawfully and maliciously caused to be taken by Sarah Wade a certain
noxious thing, namely, coal gas, so as thereby to endanger the life of the said
Sarah Wade.
The facts were that the appellant was engaged to be married
and his prospective mother-in-law was the tenant of a house, No. 7A, Bakes
Street, Bradford, which was unoccupied, but which was to be occupied by the
appellant after his marriage. Mrs. Wade and her husband, an elderly couple,
lived in the house next door. At one time the two houses had been one, but when
the building was converted into two houses a wall had been erected to divide the
cellars of the two houses, and that wall was composed of rubble loosely
cemented.
. . . [A]ppellant went to the cellar of No. 7A, Bakes Street,
wrenched the gas meter from the gas pipes and stole it, together with its
contents, and in a second indictment he was charged with the larceny of the gas
meter and its contents. To that indictment he pleaded guilty and was sentenced
to six months' imprisonment. In respect of that matter he does not appeal.
The facts were not really in dispute, and in a statement to a
police officer the appellant said: 'All right, I will tell you. I was short of
money, I had been off work for three days, I got eight shillings from the gas
meter. I tore it off the wall and threw it away.' Although there was a stop tap
within two feet of the meter the appellant did not turn off the gas, with the
result that a very considerable volume of gas escaped, some of which seeped
through the wall of the cellar and partially asphyxiated Mrs. Wade, who was
asleep in her bedroom next door, with the result that her life was endangered.
At the close of the case for the prosecution, Mr. Brodie, who
appeared for the appellant at the trial and who has appeared for him again in
this court, submitted that there was no case to go to the jury, but the judge,
quite rightly in our opinion, rejected this submission. The appellant did not
give evidence.
The act of the appellant was clearly unlawful and therefore
the real question for the jury was whether it was also malicious within the
meaning of section 23. . . .
Before this court Mr. Brodie has taken three points, all
dependent upon the construction of that section. Section 23 provides: 'Whosoever
shall unlawfully and maliciously administer to or cause to be administered to or
taken by any other person any poison or other destructive or noxious thing, so
as thereby to endanger the life of such person, or so as thereby to inflict upon
such person any grievous bodily harm, shall be guilty of felony ...'
Mr. Brodie argued, first, that mens rea of some kind is
necessary. Secondly, that the nature of the mens rea required is that the
appellant must intend to do the particular kind of harm that was done, or,
alternatively, that he must foresee that that harm may occur yet nevertheless
continue recklessly to do the act. Thirdly, that the judge misdirected the jury
as to the meaning of the word 'maliciously.
We have considered . . . the following principles [advanced
by Appellant]:
. . . 'In any statutory definition of a crime, malice must
  be taken not in the old vague sense of wickedness in general but as requiring
  either (1) An actual intention to do the particular kind of harm that in fact
  was done; or (2) recklessness as to whether such harm should occur or not
  (i.e., the accused has foreseen that the particular kind of harm might be done
  and yet has gone on to take the risk of it). It is neither limited to nor does
  it indeed require any ill will towards the person injured.'
We think that this is an accurate statement of the law. . . .
In our opinion the word 'maliciously' in a statutory crime postulates foresight
of consequence.
In his summing-up Oliver J. directed the jury as follows:
'You will observe that there is nothing there about 'with
  intention that that person should take it.' He has not got to intend that it
  should be taken; it is sufficient that by his unlawful and malicious act he
  causes it to be taken. What you have to decide here, then, is whether, when he
  loosed that frightful cloud of coal gas into the house which he shared with
  this old lady, he caused her to take it by his unlawful and malicious action.
  'Unlawful' does not need any definition. It is something forbidden by law.
  What about 'malicious'? 'Malicious' for this purpose means wicked - something
  which he has no business to do and perfectly well knows it. 'Wicked' is as
  good a definition as any other which you would get.' . . .
With the utmost respect to the learned judge, we think it is
incorrect to say that the word 'malicious' in a statutory offence merely means
wicked. We think the judge was, in effect, telling the jury that if they were
satisfied that the appellant acted wickedly - and he had clearly acted wickedly
in stealing the gas meter and its contents - they ought to find that he had
acted maliciously in causing the gas to be taken by Mrs. Wade so as thereby to
endanger her life.
In our view it should have been left to the jury to decide
whether, even if the appellant did not intend the injury to Mrs. Wade, he
foresaw that the removal of the gas meter might cause injury to someone but
nevertheless removed it. We are unable to say that a reasonable jury, properly
directed as to the meaning of the word 'maliciously' in the context of section
23, would without doubt have convicted.
In these circumstances this court has no alternative but to allow the appeal
and quash the conviction.