REGINA v. CUNNINGHAM.
[Reported by G. D. BLACK, Esq., Barrister-at-Law.]
Criminal Law - Mens Rea - "Maliciously" - Causing coal gas to be taken so as to endanger life - Whether “wickedness” equivalent to “malice” in statutory crime - Whether “maliciously” postulates foresight of consequence - Offences against the Person Act, 1861 (24 & 25 Viet. c. 100), s. 23.
The appellant stole a gas meter and its contents from the cellar of a house and in so doing fractured a gas pipe. Coal gas escaped, percolated through the cellar wall to the adjoining house, and entered a bedroom with the result that W., who was asleep, inhaled a considerable quantity of the gas. The appellant was charged on an indictment preferred under the Offences against the Person Act, 1861, s. 23, with unlawfully and maliciously causing to take a noxious thing, namely, coal gas, so as thereby to endanger her life. The judge directed the jury that “maliciously" meant “wickedly”-doing “something which he has no business to do and perfectly well knows it.” On an appeal against conviction:-
Held, allowing the appeal, that the word maliciously” in a statutory crime postulated foresight of consequence, and that an offence to be committed under section 23 it was necessary for the accused person either to intend to do the particular type of harm in fact done or, foreseeing that such harm might be done, for him recklessly to take the risk of it.
Reg. v. Pembliton (1874) L.R. 2 C.C.R. 119 applied.
APPEAL against conviction.
The appellant, Roy Cunningham, was charged at Leeds Assizes on two indictments. To the first indictment, which contained two counts of larceny of a gas meter and its contents contrary to sections 8 and 2 of the Larceny Act, 1916, he pleaded Guilty, and there was no appeal in that respect. The second indictment, framed under section 23 of the Offences against the Person Act, 1861, 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 her life, and to that he pleaded Not Guilty. Oliver J. directed the jury that for the purpose of the section "maliciously" meant wickedly doing "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.” The appellant was convicted, and appealed on the ground of misdirection of the jury.
The facts are fully set out in the judgment of Byrne J.
S. E. Brodie for the appellant. The prosecution must prove on a charge brought under section 23 of the Offences against the Person Act, 1861, that the accused acted maliciously and unlawfully. Malice imports mens rea. The nature of the mens rea required is that the accused must either intend to do the harm in fact done or he must foresee that the actual harm done might occur as a result of his actions but nevertheless continues recklessly, not caring whether it be done or not. There is no authority decided on the point under section 28, but Reg. v. Pembliton, a case under section 51 of the Malicious Damage Act, 1861, and which concerned damage to property, supports the contention: See per Lord Coleridge C.J. and Blackburn J.Pembliton's case was considered in Reg. v. Latimer, a decision under Section 20 of the Offences against the Person Act, 1861, and that case is authority for the proposition that the definition of “malice " contended for applies equally to offences against the person as it does to offences against property. Oliver J.’s direction to the jury that “malice” meant “wickedness is insufficient. He was also wrong in refusing to withdraw the case from the jury at the end of the prosecution evidence.
J. S. Snowden, for the Crown, was not called upon to argue whether the case should have been withdrawn from the jury. He conceded that it would be to difficult to seek to uphold the direction. [Reference was also made to Reg. v. Faullmer and Reg. v. Martin.
Cur. adv. vult.
May 27. BYRNE J. read the following judgment. The appellant was convicted at Leeds Assizes upon an indictment framed under section 23 of the Offences against the Person Act, 1861, 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.
On the evening of January 17, 1957, the appellant went 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 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 of the Offences against the Person Act, 1861.
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.” He cited the following cases: Reg. v. Pembliton[1*], Reg. v. Latimer[2*] and Reg v. Faulkner[3*]. In reply, Mr. Snowden, on behalf of the Crown, cited Reg. v. Martin.[4*]
We have considered those cases, and we have also considered, in the light of those cases, the following principle which was propounded by the late Professor C. S. Kenny in the first edition of his Outlines of Criminal Law published in 1902 and repeated at p. 186 of the 16th edition edited by Mr. J. W. Cecil Turner and published in 1952:
“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."
The same principle is repeated by Mr. Turner in his 10th edition of Russell on Crime at p. 1592.
We think that this is an accurate statement of the law. It derives some support from the judgments of Lord Coleridge C.J. and Blackburn J. in Pembliton’s case.[5*] 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.”
“The facts which face you (and they are uncontradicted and undisputed; the prisoner has not gone into the box to seek to give any particular explanation) are these. Living in the house, which was now two houses but which had once been one and had been rather roughly divided, the prisoner quite deliberately, intending to steal the money that was in the meter . . . broke the gas meter away from the supply pipes and thus released the mains supply of gas at large into that house. When he did that he knew that this old lady and her husband were living next door to him. The gas meter was in a cellar. The wall which divided his cellar from the cellar next door was a kind of honeycomb wall through which gas could very well go, so that when he loosed that cloud of gas into that place he must have known perfectly well that gas would percolate all over the house. If it were part of this offense - which it is not -that he intended to poison the old lady, I should have left it to you to decide, and I should have told you that there was evidence on which you could find that he “intended that, since he did an action which he must have known would result in that. As I have already told you, it is not necessary to prove that he intended to do it; it is quite enough that what he did was done unlawfully and maliciously."
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.
Solicitors: Registrar, Court of Criminal Appeal; Director of Public Prosecutions.
 Offences against the Person Act, 1861, s. 23:
"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..."
 (1874) L.R. 2 C.C.R. 119.
 Ibid. 122.
 L.R. 2 C.C.R. 119.
 (1886) 17 Q.B.D. 359; 2 T.L.R. 626; 55 L.J.M.C. 135.
 (1877) 13 Cox C.C. 550.
 (1881) 8 Q.B.D. 54; 14 Cox C.C. 633.
[1*] (1874) L.R. 2 C.C.R. 119.
[2*] (1886) 17 Q.B.D. 359; 2 T.L.R. 626; 55 L.J.M.C. 135.
[3*] (1877) 13 Cox C.C. 550.
[4*] (1881) 8 Q.B.D. 54; 14 Cox C.C. 633.
[5*] L.R. 2 C.C.R. 119, 122.