R. v. Kiston Crim. Sass. 146-D-71; 4/10/71; Onyiuke J.

 

R. v. Kiston Crim. Sass. 146-D-71; 4/10/71; Onyiuke J.

The accused was charged with doing grievous harm with intent c/s 222(1) of the P.C. The particulars read that on or about the 4^th November 1970, he, with intent to main or disfigure, unlawfully did grievous harm to one Athumani by knocking him down with a motor vehicle. The case arose out of a quarrel between the accused and P.W. 1 over a Girl P.W. 3. P.W. 3 was at all material times employed by P.W. 1 as a barmaid. She was on duty on the night of the incident and after leaving work proceeded to the bus stop to take a bus home. A taxi driven by the accused came along and she stopped it and asked for and was given a lift. The accused made improper suggestions to her and attempted to take her to his house by force. P.W. 1 who had joined the taxi came to her help a thwarted the accused’s plant. When the witnesses descended from the car the accused drove it furiously at P.W. 1. The latter was hit by the car and fell down. Athumani, P.W. 4, who had come out of his house to witness the commotion, was hit by the car. At this stage he was standing on the step leading to an open verandah in front of P. W. 1’s house. He fell and became unconscious. He came to in the hospital. Did not know the accused before and had no quarrel with him. The medical witness described the injuries he sustained as multiple abrasions on the left leg. It was argued by the accused that the charge had not been proved as laid, as he did not know P.W.4, had no quarrel with him, and did not intend to cause him any harm. He contended it was a case of accident or negligent driving for which he cannot be liable under section 222(1) of the Penal Code. On behalf of the Republic it was argued that this was a case of transferred malice and that since the accused intended to do grievous harm to P.W. 3 and in carrying out that intention he wounded P.W. 4 his general malice was sufficient to support a conviction under section 222(1) of the Penal Code: R. v. Latimer (1886) 17 K.B. 359.

            Held: (1) “I directed the assessors in my summing up to pay particular attention to the incident that took place between the accused and P.W. 1. I asked them to consider whether the accused hit P.W. 1 with his car by accident or through negligent driving, or whether he deliberately hit him with it. If it was the latter, then in the circumstances of the case he was liable for doing grievous harm to P.W. 4 although he was unaware of his presence at the time. The assessors were unanimous in their opinion that the accused hit P.W. 1 with intention to kill him.” (2) “I am satisfied on the evidence that he [the accused] intended to do P.W. 1 grievous harm with his car. I find that in the execution of this intention the accused also knocked down P. W. 4 who was standing close by. The accused should have foreseen this risk as a consequence of his deliberate man oeuvre, but I find that he was unaware of his presence and in that sense did not intend to do him harm.” (3) “The prosecution has chosen to bring the charge against the accused for doing grievous bodily harm to P.W 4 instead of to P.W. 1. Apparently the prosecution thought that the injury done to P.W. 1 was not as serious as the injury to P.W.4. I doubt whether this is a valid reason in law for not charging the accused with doing grievous harm to P.W. 1

with intent.” (4) “The question posed by this case is whether it is essential to secure a conviction under section 222(1) of the Penal Code to prove a specific intent in regard to the person who was in fact wounded, or whether a general intent to do grievous hard was enough. Section 222 of the Penal Code in so far as it is relevant provides as follows: - ‘any person who, with intent to main disfigure or disable any person, or to do some grievous harm to any person…. (1) unlawfully wounds or does any grievous harm to any person by any means whatever … is guilty of a felony, and is liable to imprisonment for life.’ In R. v. Latimer, Law Reports 17 Q.B. 362, the prisoner, in striking at a man, struck and wounded a woman beside him. The prisoner was charges with unlawfully and maliciously wounding the woman. The jury found that the blow was unlawful and malicious and that it did in fact wound the woman, but she being struck was purely accidental and not such a consequence of the blow as the prisoner might have expected. The prisoner was convicted. On appeal the question was whether on those findings the prisoner was rightly convicted. The Queen’s Bench Division, consisting of five judges, held that he was rightly convicted … I note, however, that the charge in that case was brought under section 20 of the English Act (24 and 25 Victoria, Chapter 100), which provides that; - ‘Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person shall be guilty of a misdemeanor.’ Section 20 of the English Act leaves out the intent and appears to correspond with section 225 of the Penal Code, which provides that: - ‘Any person who unlawful does grievous harm to another s guilty of a felony, and is liable to imprisonment for seven years.’ It is section 18 of the English Act that corresponds to section 222 of the Penal Code. Section 18 of the English Act provides that: - ‘Whosoever shall unlawfully and maliciously cause any grievous bodily harm to any person’, with intent shall be guilty of a felony. The reasoning in R. v. Latimer appears to me to cover the case under section 18 of the English Act, but in R. v. Hewlett, 1 F & F. 91 it was held that where a prisoner struck A but B interposing, received the blow and was wounded, he could not be convicted of wounding with intent to do B grievous harm. The correctness of this decision was doubted in R. v. Stofford (187)) 11 Cox’s Criminal Cases, page 643. In that case the prisoner was indicted under section 18 of the English Act with doing grievous harm with intent. The facts were that the prisoner wounded A, whom he mistook to be B. It was held that he was rightly convicted although he mistook his victim to be somebody else; the prisoner struck the person before him though he was somebody else. This case is not quite on all fours with the present case, as in that case the prisoner intended to strike the person before him although he thought he was somebody else. In the present case the accused was not even aware that P.W.4 was on the scene.”(5) “Turning to the wording of section 222 of the Penal Code, it will be noted that the section did not say that ‘any person who, with intent to do grievous bodily harm

to any person, unlawfully wounds such person, or that person’, or words to that effect. It simply says ‘lawfully wounds any person’. By way of analogy I refer to section 1956 of the. Penal Code. That section provides that: - ‘Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.’ Section 200 of the Penal Code defines malice aforethought to include ‘an intention to cause the death of or to do grievous harm to any person whether such person is the person actually killed or not’. (The underscoring is mine). The question is whether the absence of similar words in section 222 of the Penal Code makes any difference. There is no reason in principle why it should, but I prefer to leave the matter open. What difference does it make to a person’s guilt whether he intended grievous harm to A and in the execution of that intention seriously wounds an innocent third party? He has that blameworthy state of mind which section 222(1) of the Penal Code. I shall however leave the matter open.” (6) “I am, however, satisfied that on the evidence the accused is guilty of the offence constituted by section 225 of the Penal Code …… The accused drove his car furiously, close to P.W. 1’s house with the intention to knock him down and in the process he knocked down P.W. 4 also. The unlawful act done by the accused was in creating a dangerous situation with his car with intent to cause grievous bodily harm to P.W. 1. It was this unlawful act that caused serious injury to P.W. 4. The accused was not merely negligent or reckless: he was more than that. I am satisfied that he is guilty of an offence under section 225 of the Penal Code, to wit, unlawfully doing grievous harm to P.W. 4., Omari Athumani, and, acting under section 181 (1) of the Criminal Procedure Code, I convict him of that offence.”