Court acquits accused of unlawful wounding as subjective intent to harm was not proven beyond reasonable doubt.

[*1365] 1972 March

(PIKIS, D.J.)

TN THE DISTRICT COURT OF FAMAGUSTA

Police,

v.

Georghios Ttophi Djioppou,

Accused.

(Case No. 1127/72).

Criminal Law - Unlawful wounding - Section 234(a) of the Criminal Code, Cap. 154 - Ingredients of the offence - Act should be done "maliciously" - "Malice" - It involves intentional or reckless conduct - Injuries received from shot aimed at a bird and whilst accused was concentrared in taking a successful shot - Intent - Test applicalle in approaching question of accused’s intent is the subjective one - On the evidence, Court unable to conclude that accused intended to wound complainant.

Unlawful wounding - See under "Criminal Law".

Intent - Intent to wound - Onus on prosecution to prove intent - Inference - One's intent may be inferred from his acts - And intent must be the only reasonable inference to be drawn from the evidence - See, also, under "Criminal Law".

Police Sergeant HjiChristos, for the Prosecution.

N. Antoniou, for the Accused.

JUDGMENT

The following judgment was delivered by:-

PIKIS, D.J. : The accused is charged on a count [*1366] of unlawful wounding, contrary to Section 234(a) of Cap. 154. It is the case for the prosecution that

on the morning of the 7th November, 1971 the accused, unlawfully wounded the complainant, P.W.2, by firing a shot with his sporting gun in his direction in consequence of which the complainant suffered the rather severe injuries described by Dr. Savvides, P.W.1. The circumstances under which the shot had been fired have been the matter of some controversy between accused, the complainant and the companion of the complainant, P.W.3. The complainant, his companion, as well as two other fellow companions, went to Vikles locality, Lysi to hunt patridges.

Accused had visited in different company the same locality for the same purpose. The accused and the complainant were unknown to one another prior to the day of this incident. An argument flared up between the accused and the complainant after the accused had declined to hand over to the companion of the complainant, P.W.3, a patridge that complainant had shot down and which had fallen down at some distance away from the complainant near the accused. Subsequently, the complainant accompanied by P.W.3 approached himself the accused and demanded return of the bird which accused eventually delivered to the complainant after some argument.

During this argument accused and complainant stood at different levels the accused standing by the bed of a dry river, whereas the complainant was standing 3-4 metres higher on the bank of the river. It is an admitted fact that at the end of this argument the accused threw the bird in the direction of the complainant, but according to accused this was not done in the contemptuous manner as suggested by the complainant and [*1367] his companion, P.W.3. It is the evidence of the complainant and his companion that accused was angry with the complainant because of his insistence in demanding the return of the patridge that had fallen so conveniently near the accused.

The accused, on the other hand denied that he was overcome by anger and maintained that he gave the bird to the complainant on being satisfied that it had been shot down by him. After recovering the bird the complainant and his companion walked away by the side of the dry river bank - 5-10 metres from its edge. In the meantime complainant shot down a second bird and carried on with their shooting expedition. The accused remained inside the river bed somewhere between the bed of the river and the bank on the side opposite the complainant. It is the evidence of the complainant and P.W.3 that when a distance of approximately 30 metres separated the complainant from the accused a patridge emerged from the left of the complainant.

The complainant took two shots at the bird without any success whereupon the bird dived lower towards the bed of the river, in the direction of the accused. At this stage the complainant remarked in a loud voice to the accused that the bird was heading in his direction and he might take a shot at it. A moment later the complainant felt the force of pellets penetrating several parts of his body from shots coming from the direction of the accused. P.W.3, who watched the events with greater accuracy, saw the accused aiming at the bird; the witness demonstrated the way in which accused aimed at the bird, that is, the gun was moving position in the hands of the accused following the direction of the bird, in [*1368] consequence of which shot the complainant was injured by the pellets coming out of the catridge used to fire at the bird.

The accused was seen walking away in the direction of the bird when a call in a loud voice from P.W.3 brought him back. The accused told them that he was sorry for what happened and maintained that he had not noticed their presence, an allegation he put forward when formally charged. In answer to the formal charge the accused contended that the presence of bushes obscured the presence of the complainant and his companion so much so that he was not at the time of firing the shot in, question aware of the presence of the complainant. The complainant and P.W.3 refuted this allegation and maintained that there was no obstruction between them and that their presence should have been perfectly conspicuous to the accused.

P.W. 4, a police constable, who visited the scene in the presence of accused and complainant supports the version of prosecution witnesses that there was no obstruction whatever between the position of accused and that of complainant.

I have examined the evidence before me with extreme care and had occasion to see the witnesses testify before me. I make the following findings of fact.-

I find as a fact that accused was angry at the insistence of the complainant that he should hand over to them the patridge that had fallen so near him and that he had already picked up. He did, however, surrender the bird to the complainant, who was entitled to it having

shot it down. I cannot construe the act of throwing the bird towards [*1369] the direction of the complainant as a contemptuous act considering

the distance that separated them and their respective positions at this juncture. I find on the totality of the evidence before me that the accused was in consequence of the demand of the complainant rather angry that he had to part with the patridge he had already picked up, hut not so very angry as suggested by the complainant. Further, I find that when the shot in question was fired by the accused the shot was aimed at a patridge that had flown past the complainant and was coming in his direction. At the time when he fired this shot the complainants were visible from the position where accused stood. I believe before I go further with the evidence that it is a convenient stage to refer to the ingredients of the offence and the implications of a charge under Section 234(a) of Cap. 154.

It is of the first importance to give the definition of the word "unlawful" in the context of this Section of the law. The word "unlawful" in the context of unlawfully wounding has been interpreted by a long line of English precedents to mean an injurious act done maliciously. (See Archbold 36th edition, paragraphs 2666, 2667 as well as paragraph 2257). The word "unlawful" in its literal connotation means an act done without justification in law. Such justification in law will be lacking if the act is done maliciously. The most recent English decision on the meaning of the word "maliciously" is to be found in the case of R. v. Mowatt (1967) 3 All E.R. 47. It was emphasized that malice involves proof of either [*1370]

(a) Foresight of consequences and a desire to bring about the foreseen result or

(b) Recklessness as to consequences.

The above approach indicates a departure from the old meaning attributed to malicious acts, an approach that equated malicious acts with wickedness. An act is reckless where the perpetrator, though he foresees the consequences that may follow a given course of conducts, he embarks on such course irrespective of the consequences. The feature that contrasts intentional conduct from reckless conduct is that in the former case the perpetrator wishes to achieve the foreseen result whereas in the latter case he has no specific wish to bring about the foreseen result but is indifferent, whether the foreseen result is brought about. It is not without interest to note that in the case of R. v. Lamb (1967) 2 All E.R. 1282 it was decided that an act will not be considered to be unlawful merely from the view point of civil liability.

I will now revert once more to the evidence before me and decide whether the prosecution proved beyond any reasonable doubt the charge under consideration. I have already found that the presence of the complainant should have been conspicuous to the accused and I further find that the possibility of harm being caused to the complainant should have been in the contemplation of every reasonable man in the position of the accused firing in the circumstances he did. I cannot on the evidence before me conclude that [*1371] the accused intended to wound the complainant. The evidence of P.W.3 to the effect that the barrel of the gun of the accused was changing position according to the movements of the bird is a strong indication that at the time the accused was concentrated on taking a successful shot at the bird, which he actually brought down in consequence of the shot. Was the accused reckless in the circumstances? In the case of Stavrinou v. R. (1969) 5 J.S.C. page 674 the following propositions found favour with the majority of the Supreme Court:

(a) One’s intent may be inferred from his acts.

(b) It is for the prosecution to establish on the totality of the evidence the necessary intent.

(c) The prosecution will only be deemed to have discharged the onus cast on them if they establish that the intent relied upon was the only reasonable inference on the totality of the evidence before the Court.

The question that I have to resolve is whether on the evidence before me the accused was reckless in the sense above referred to when firing this shot. In order to find that he was reckless, I must find not only that a reasonable man in the position of accused would have foreseen the natural consequences of his acts and in consequence foresee injury to the complainant, but the pertinent question is whether the accused, himself did at the material time foresee the consequences of his acts and yet took a deliberate risk. In the case of Lamb above cited it was stressed [*1372] that the approach that should be followed by the Court is not an objective one, but the Court must scrutinize the evidence and apply a subjective test in finding out what the intention of the accused was at the material time.

In the case of Warner v. Metropolitan Police Commissioner (1968) 2 All E.R. 356 the House of Lords reiterated the principle of a subjective test in no uncertain Way when it stressed that it is wrong to impute to Parliament an intention to convict the innocent. Whereas the reactions of a reasonable man are a common sense guide in the light of which to approach the question of intention of the accused, such test is not conclusive and the ultimate question is whether the accused did foresee the consequences of his acts and yet took the step in question, conscious of the possible consequences, yet ignoring them. I cannot in the circumstances of this case find that the accused forewaw the consequences of his acts and nonetheless took a deliberate risk with the bodily integrity of the complainant. The gravamen of the charge of unlawful wounding is not negligence.

Accused is acquitted and discharged.