Court of Appeal
Criminal Appeal No. 18 of 1983
11th May, 1984
SIR JOHN SUMMERFIELD P.
SIR ALBERT L. STAINE J.A.
KENNETH ST. L. HENRY J.A.

• Criminal Appeal- Appellant convicted of attempted murder, dangerous harm and robber-Appellant appealing against convictions for attempted and dangerous harm only.

• Grounds of appeal confined to directions given by court aquo in summing up- Where charges of attempted murder and dangerous harm are based on the same facts, it is usual and preferable to charge those offences in the alternative - In summing up, convicting court need not go into every detailed element of the ingredients of the offence - the summing up and directions should be tailored to the particular facts of the case before the jury.

• Second ground of appeal - trial judge alleged to have omitted to explain to the jury that before an adverse inference can be drawn against an accused person, it must be the only reasonable inference to draw form the facts the jury find proved and that where a set of facts is capable of more than one inference, one adverse to an accused person- and one or more favourable or neutral to him, then the inference favourable or neutral to him should be drawn-Court of Appeal finding that there was no direction to the jury by the trial judge along these lines - Approach to be adopted in relation to proof of intention-section 9 of the Criminal Code- Court of Appeal findings that the trial court failed to address the question of intention to the jury on the charge of dangerous harm - Court of Appeal quashing convictions for the offences of attempted murder and dangerous harm.

J U D G M E N T

The Appellant was charged with and convicted of three offences, namely, attempted murder, dangerous harm and robbery. He was sentenced to terms of imprisonment with hard labour of 8 years and 5 years respectively, the sentences to run concurrently.

The appeal against sentence has been abandoned. The appeal against conviction is confined to the convictions for the offence of attempted murder and the offence of dangerous harm. There is no challenge to the conviction for the offence of robbery.

The grounds of appeal relate solely to the directions given, or omitted, in the learned Chief Justice's summing up and so it is unnecessary to go into the facts of the case. The only observation we would make on the case generally is that where charges of attempted murder and dangerous harm are based on the same facts it is usual and preferable to charge those offence in the alternatively. Then, if the jury returns a verdict of guilty on the more serious charge, the jury can be excused from returning a verdict on the alternative charge. If the jury acquits on the more serious charge then the court can receive the jury's verdict on the alternative charge.

The first ground of appeal relates to the conviction for attempted murder and alleges that the learned Chief Justice misdirected the jury in that he did not or did not properly put to them the meaning of an "attempt".

It is true that the learned Chief Justice did not explain in general terms what constituted an attempt and then distinguish an attempt from mere preparation. What the Chief Justice did say, however, was:

"To establish the first count of attempted murder the prosecution must prove an act or acts by the accused which were immediately connected with the commission of the offence of murder."

He went on to explain the ingredient of the offence of murder and then continued:

"But in this case no one has died - not a case of murder. However the prosecution is alleging that the accused unlawfully inflicted bodily harm on Alberto Cassanova with the intention to kill him so that if when you come to consider the case the prosecution establishes, firstly, that the accused inflicted bodily harm on Cassanova, he inflicted the bodily harm without justication and that the acts of the accused as you find them were immediately connected with seeking to kill Cassanova and at the time the accused had the intention to kill then the prosecution would have established the charge of attempted murder."

That could have left no doubt in the minds of the jury about what the prosecution case was and what had to be proved to establish the offence of attempted murder.

It is not always necessary to go fully into every aspect of the elements of an offence in a general way. The summing up and directions should be tailored to the particular facts of the case before the jury. In this case there was an actual stabbing in the chest, with the knife being brought down, followed by further stabs in the abdomen. It would be wholly artificial to give a general explanation of what constitutes an attempt to commit an offence and then invite the jury to decide whether those stabs with a knife were mere preparation or an actual attempt. The learned Chief Justice adopted a commonsense approach suited to the facts of the case.

The second ground of appeal has more substance. It reads:

"2. The Learned Trial Judge misdirected the jury in that he did or did not properly explain the accused's intention and further omitted to mention that intention was an ingredient of the offence of Dangerous Harm."

In argument it was broken down into two parts. One complained that the learned Chief Justice, in dealing with intent on the attempted murder charge, did not explain that before an inference can be drawn which is adverse to an accused person it must be the only reasonable inference to draw from the facts the jury find proved; that the facts must point irresistibly to the inference drawn if it is adverse to an accused person.

The directions very properly pointed out that in determining a person's state of mind one is usually driven to reliance on inferences drawn from what that person did or said and all the surrounding circumstances. Unfortunately, there was no direction to the effect that reliance can only be placed on an inference which is adverse to an accused person if it is the only reasonable inference to draw from the proven facts. The direction on inferences is often expanded by explaining that where a set of facts is capable of more than one inference, one adverse to an accused person and one or more favourably to him or neutral then the inference favourable to him should be drawn. There was no direction along these lines.

In this case the multiple stabbing in furtherance of the robbery could have been with intent to kill the victim, or to subdue him, or to harm him, dangerously or otherwise, or to force him into submission and so on. Therefore, it was particularly important in relation to the attempted murder charge, where a specific intent to kill is an essential element, to give the standard directions in relation to inferences.

One further observation in relation to the directions given on inferences should be made. The learned Chief Justice stated:

"And it is put in this way sometimes; the law presume a man to intend the natural and probable consequences of his acts and you may feel that the natural and probable consequences of stabbing a man in his chest and in his abdomen is that he is going to be seriously injured, he would be seriously injured and would die."

That comes perilously close to directing the jury to draw the inferences of an intent to kill as a matter of law. While the learned Chief Justice did make clear that the inference was permissible and not mandatory, it is safer to keep away from any suggestion that any particular inferences arises by law(in the absence of any specific statutes to that effect). Section 9 of the Criminal Code sets out the approach to be adopted in relation to proof of intention, knowledge, etc.

The second complaint urged under this ground of appeal is that the learned Chief Justice, in explaining the elements of the offence of dangerous harm, did not explain that an essential element was an intention to cause dangerous harm. That complaint is well founded.

Section 78 of Criminal Code provides:

"Every person who intentionally and unlawfully causes a maim or any dangerous harm to a person shall be liable to imprisonment for twenty years."

It is clear from that provision that an intention to cause dangerous harm is an essential ingredient of the offence.

To be guilty of that offence the offender must unlawfully cause dangerous harm. That means he must commit an unlawful act (i.e. without justification or lawful excuse) which results in dangerous harm, with the basic intention of committing that unlawful act. At the same time he must have the specific intention of causing dangerous harm or have no substantial doubt that his conduct would produce it; otherwise the word "intentionally" would be superfluous.

What the section is saying with regard to intention is:
"Every person who intentionally…. causes… grievous harm to a person etc………". Unless he intends grievous harm he cannot be guilty of that offence. One has only to compare the provision (truncated above) with the offence of …. I.e. "Every person who intentionally causes the death of another etc….." to demonstrate the point. No one would suggest that an intention to cause death is not an essential element of the offence of murder. The comparison demonstrates plainly that an intent to cause dangerous harm is a specific intention under section 78.

Sections 5 and 6 of the Criminal Code are also relevant to this question but need no further elaboration.

The net result is that the jury reached a verdict on the charge of dangerous harm without being appraised of all the elements which had to be proved to establish that charge. This must be a rare oversight for the learned Chief Justice but the consequences are inevitable.

The third ground of appeal complained that the learned Chief Justice failed to direct the jury on justification despite the fact that there was no evidence of justification. There is absolutely no merit in that ground.

In the result the convictions for the offences of attempted murder and dangerous harm must be quashed and the sentences therefore set aside. It is so ordered.

The conviction and sentence for the offence of robbery stand.

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