Ratio Decidendi
The word 'maliciously' in a criminal statute requires proof that the defendant either intended the particular kind of harm that in fact occurred, or was reckless as to whether such harm should occur — i.e., the defendant foresaw the risk of that harm and went on to take it anyway. This is subjective recklessness (Cunningham recklessness).
Facts
Cunningham broke a gas meter in the cellar of a house to steal the money inside it. Gas escaped through the broken pipe and seeped into the adjoining house, partially asphyxiating his future mother-in-law. He was charged under s.23 of the Offences Against the Person Act 1861 with maliciously administering a noxious thing so as to endanger life.
Judgment Summary
The Court of Criminal Appeal quashed the conviction. The trial judge had directed the jury that 'maliciously' meant 'wickedly' — doing something which the defendant had no business to do. This was held to be a misdirection. The court held that 'maliciously' requires either: (1) an actual intention to do the particular kind of harm that was done, or (2) recklessness as to whether such harm should occur — meaning the defendant foresaw the risk and nevertheless went on to take it. The defendant must subjectively foresee the risk of the relevant harm.
Key Quotes
"In any statutory definition of a crime, malice must be taken not in the old vague sense of wickedness in general but as requiring either (1) An actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (i.e. the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it)."
— Byrne J
Subsequent Treatment
Cunningham recklessness remains the test for 'maliciously' in statutes such as the OAPA 1861.
Distinguished from Caldwell recklessness (R v Caldwell [1982]), which applied an objective test but was later overruled by R v G [2003], restoring Cunningham subjective recklessness as the general test.