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Regina v. Cunningham

Scott Caron

ProfessorScott Caron

CaseCast "What you need to know"

CaseCast –  "What you need to know"

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Regina v. Cunningham
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    Brief Fact Summary. Defendant removed a gas meter that was connected to Sarah Wade’s house in order to steal money that it contained. Removal of the gas meter caused gas to leak into Ms. Wade’s house and D was subsequently charged with unlawfully and maliciously endangering the life of Ms. Wade.

    Synopsis of Rule of Law. Malice, as contemplated by the penal code, requires that the defendant actually foresaw that the harm may occur yet disregarded the risk by continuing to perform the act.

    Facts. D, in an effort to steal money from a gas meter connected to P’s house, removed the gas meter and thereby caused gas to leak into P’s house. P’s life was endangered as a result D was charged with and convicted at trial of “unlawfully and maliciously” endangering P’s life. The trial judge had instructed the jury with regard to the definition of malice, that malice means wicked – “something which he has no business to do and perfectly well knows it”. D appeals based on the jury instruction.

    Issue. Did the trial court err in instructing the jury that the definition of malice is wickedness?

    Held. Yes. Conviction reversed.
    This court interprets the word maliciously in a statutory crime as requiring “foresight of consequence” and holds that the jury should have been left to decide whether he foresaw that the removal of the gas meter might cause injury to someone but chose to continue with its removal.

    Malice, as contemplated by the penal code, requires that the defendant actually foresaw the possibility that harm may occur as a result of his/her action and consciously chose to disregard the risk and continue to perform the act.


    Discussion. This case focuses on the mens rea, or mental state, required by the definition of an offense.
    The concern of the criminal law in determining culpability for an act rests on the level of intentionality involved in the action. In other words, the criminal law looks at what the defendant intended, knew or should have know when the act was performed.

    In this case, the Cunningham court’s insistence that foresight on behalf of the defendant be found is indicative of its position that mere negligence, or an inference from the situation that the defendant should have known that the harm was a possibility, is not enough to support a conviction for a crime that requires malice in its definition.


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