R v. Cunningham

Facts

• Cunningham tore a gas meter from the wall of a cellar to steal money from it
• The gas escaped through the broken pipe into an adjoining house and partially asphyxiated his future mother-in-law
• He was charged under the Offences Against the Person Act 1861 with maliciously administering a noxious thing so as to endanger life
• The trial judge directed the jury that maliciously meant wickedly, equating it with objective negligence

Issues

1. What does "maliciously" mean in the context of criminal statutes?
2. Is subjective awareness of risk required, or is objective carelessness sufficient to constitute malice?

Held

• The Court of Criminal Appeal quashed the conviction. It held that the trial judge misdirected the jury. "Maliciously" does not mean merely wickedly or even negligently. Following Professor Kenny's definition, malice requires either: (i) actual intention to cause the harm, or (ii) subjective recklessness, meaning the accused actually foresaw the risk of harm and proceeded to take it regardless. Since there was no evidence that Cunningham foresaw the risk of gas escaping and endangering someone, the conviction could not stand.

Ratio Decidendi

The term "maliciously" in criminal statutes requires proof of subjective mens rea, either an actual intention to cause the particular kind of harm or subjective recklessness, meaning the accused actually foresaw the possibility of harm resulting from his act and nevertheless proceeded to take the risk; mere objective negligence or carelessness, however unreasonable, is insufficient to establish malice.