## Facts

- Roy Cunningham entered the cellar of an unoccupied house he intended to occupy and removed a coin-operated gas meter, stealing the meter and its contents.
- He wrenched the meter from the gas pipes and did not shut off the gas at a nearby stop tap.
- A large quantity of coal gas escaped, passed through a poorly divided cellar wall into the adjoining occupied house, and rose into a bedroom.
- Sarah Wade, asleep in that bedroom, inhaled the gas and was partially asphyxiated, endangering her life.
- Cunningham pleaded guilty to larceny of the meter and contents and was separately tried under Offences Against the Person Act 1861 § 23 for “unlawfully and maliciously” causing a noxious thing (coal gas) to be taken so as to endanger life.
- The trial judge instructed the jury that “maliciously” meant “wickedly,” i.e., doing something the defendant had no business to do and knew it.
- The jury convicted; Cunningham appealed, arguing misdirection on “maliciously” and lack of proof of the required mens rea.

## Issues

1. Whether “maliciously” in Offences Against the Person Act 1861 § 23 is satisfied by general “wickedness,” or instead requires proof of intent or recklessness regarding the relevant harm.
2. Whether the jury instructions improperly omitted the need for foresight of the risk of endangering life (or similar harm) from the gas escape.

## Decision

- The Court of Criminal Appeal allowed the appeal and quashed the conviction.
- The trial judge’s definition of “maliciously” as “wickedly” was a material misdirection.
- For § 23, “maliciously” requires proof that the defendant either intended the relevant type of harm or was reckless as to whether it would occur, meaning the defendant actually foresaw the risk and proceeded anyway.
- Because the jury may have convicted based on the theft’s wrongfulness rather than a finding of foresight of gas-poisoning risk, the conviction could not stand.

## Legal Principles

- In OAPA 1861 § 23, “maliciously” is a mens rea term and is not satisfied by general moral blameworthiness.
- “Maliciously” requires either:
  - an actual intention to cause the particular kind of harm that occurred; or
  - subjective recklessness as to that harm, i.e., the defendant foresaw that the harm might occur and nevertheless took the risk.
- A jury must be directed to decide whether the defendant intended or foresaw the relevant harmful consequence; instructions equating “malice” with “wickedness” misstate the law.

## Conclusion

The court set aside Cunningham’s conviction because “maliciously” in OAPA 1861 § 23 requires intent or subjective foresight-and-risk-taking as to the specific harm endangered by the noxious thing, and the jury was improperly told it was enough that the defendant acted “wickedly.”


Regina v. Cunningham, [1957] 2 Q.B. 396 (Ct. Crim. App. 1957)