R v Mohan

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Page 1 [1976] QB 1, [1975] 2 All ER 193, [1975] 2 WLR 859, 60 Cr App Rep 272, [ R v Mohan COURT OF APPEAL, CRIMINAL DIVISION [1976] QB 1, [1975] 2 All ER 193, [1975] 2 WLR 859, 60 Cr App Rep 272, [1975] RTR 337, 139 JP 523 HEARING-DATES: 14 JANUARY, 4 FEBRUARY 1975 4 FEBRUARY 1975 CATCHWORDS: Criminal law - Attempt - Mens rea - Intent - Proof of intent to commit complete offence Knowledge that commission of complete offence likely consequence of accused's act - Charge of attempting by wanton dr
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  Page 1[1976] QB 1, [1975] 2 All ER 193, [1975] 2 WLR 859, 60 Cr App Rep 272, [ R v MohanCOURT OF APPEAL, CRIMINAL DIVISION [1976] QB 1, [1975  ] 2 All ER 193, [  1975  ] 2 WLR 859, 60 Cr App Rep272, [  1975  ] RTR 337, 139 JP 523 HEARING-DATES: 14 JANUARY, 4 FEBRUARY 19754 FEBRUARY 1975 CATCHWORDS: Criminal law - Attempt - Mens rea - Intent - Proof of intent to commit complete offence -Knowledge that commission of complete offence likely consequence of accused's act - Charge of attempting by wanton driving to cause bodily harm - Whether sufficient to prove knowledge that bodily harm likely consequence of wanton driving - Whether necessary to prove intent to cause bodily harm. HEADNOTE: A police officer on duty saw a motor car being driven by the appellant. The vehicle appeared to be exceeding the permitted speed limit. The officer stood in the path of the vehicle and signalledthe appellant to stop. The vehicle slowed down but, when about ten yards away from the officer,accelerated hard and was driven straight at the officer who moved out of its way in order to avoid being knocked down. The appellant was charged on three counts, one of which alleged that, on theday in question, having the charge of a motor vehicle, he had attempted, by wanton driving, to cause bodily harm to be done to the police officer. In relation to that charge the judge directed the jurythat the Crown had to prove that the appellant had deliberately driven the vehicle wantonly and thathe must have realised at the time that, unless he were to stop or there were some other interveningfactor, such driving was likely to cause bodily harm, or that he was reckless as to whether bodilyharm was caused, but that it was not necessary to prove an intention actually to cause bodily harm.The appellant was convicted on that count and appealed.Held - In order to prove the offence of attempt to commit a crime the Crown had to prove aspecific intent, i e a decision by the accused to bring about, so far as it lay within his power, thecommission of the offence which it was alleged that he had attempted to commit. It was notsufficient to establish that the accused knew or foresaw that the consequences of his act would,unless interrupted, be likely to be the commission of the complete offence; nor was a reckless stateof mind sufficient to constitute the necessary mens rea. Accordingly the judge's direction was badin law and the appeal would be allowed (see p 198 f and g and p 200 b f h and j, post).Dicta of Asquith LJ in Cunliffe v Goodman [1950] 1 All ER at 724 and Lord Parker CJ inDavey v Lee [1967] 2 All ER at 425 applied. NOTES: For attempt to commit a crime, see 10 Halsbury's Laws (3rd Edn) 306-309, para 567, and for   Page 2[1976] QB 1, [1975] 2 All ER 193, [1975] 2 WLR 859, 60 Cr App Rep 272, [ cases on the subject, see 14 Digest (Repl) 112-118, 776-818. CASES-REF-TO: Cunliffe v Goodman [1950] 1 All ER 720, [1950] 2 KB 237, CA, 31(2) Digest (Reissue) 641, 5217.Davey v Lee [1967] 2 All ER 423, [1968] 1 QB 366, [1967] 3 WLR 105, 131 JP 327, 51 Cr AppRep 303, DC, Digest (Cont Vol C) 185, 804a.R v Duckworth [1892] 2 QB 83, 66 LT 302, 56 JP 473, 17 Cox CC 495, CCR, 14 Digest (Repl)115, 800.R v Higgins (1801) 2 East 5, 102 ER 269, 14 Digest (Repl) 119, 822.R v Hyam [1973] 3 All ER 842, [1974] QB 99, [1973] 3 WLR 475, 57 Cr App Rep 824, CA; affdsub nom Hyam v Director of Public Prosecutions [1974] 2 All ER 41, [1974] 2 WLR 607, 59 Cr App Rep 91, HL.R v Whybrow (1951) 35 Cr App Rep 141, 14 Digest (Repl) 668, 6753. CASES-CITED: R v Collier [1960] Crim LR 204.R v Cooke [1971] Crim LR 44.R v Grimwood [1962] 3 All ER 285, [1962] 2 QB 621, CCA.R v Telford [1954] Crim LR 137. INTRODUCTION: Appeal. The appellant, John Patrick Mohan, was charged on an indictment containing threecounts: (1) that on 22nd April 1974 he attempted to cause grievous bodily harm to Pc Harry JamesSales with intent to do him grievous bodily harm; (2) that on 22nd April 1974, having the charge of a motor vehicle, he had attempted, by wanton driving, to cause bodily harm to be done to Pc Sales;(3) that on 22nd April 1974 he drove a motor vehicle on a road in a manner which was dangerous tothe public. On 30th August 1974 at the Central Criminal Court before his Honour Judge Gillis QCthe appellant was acquitted on count 1 but convicted on counts 2 and 3. He was sentenced to 12months' imprisonment on each count, to run concurrently, and was disqualified from driving for three years on count 3. He appealed against conviction by leave of the single judge (Rees J). Thefacts are set out in the judgment of the court. COUNSEL: A T Glass for the appellant. Antonio Bueno for the Crown. JUDGMENT-READ:  Cur adv vult. 4th February. PANEL: JAMES LJ, TALBOT AND MICHAEL DAVIES JJ JUDGMENTBY-1: JAMES LJ  Page 3[1976] QB 1, [1975] 2 All ER 193, [1975] 2 WLR 859, 60 Cr App Rep 272, [ JUDGMENT-1: JAMES LJ delivered the following judgment of the court. This appeal is about the questionwhat state of mind, mens rea, is required to be proved as an ingredient of the offence of attemptingto commit a crime.The appellant was convicted on 30th August 1974, at the Central Criminal Court, of driving amotor vehicle in a manner dangerous to the public (count 3) and of, having charge of a vehicle,attempting by wanton driving to cause bodily harm to be done to Harry James Sales (count 2). Hewas acquitted by the jury on count 1 of the indictment of attempting to cause grievous bodily harmto Pc Sales with intent to cause him grievous bodily harm.In the afternoon of 22nd April 1974 Pc Sales, in uniform, saw a motor car being driven towardshim along Hillbury Road, Whyteleafe. The road conditions were good, visibility unimpaired and itwas of course daylight. The officer estimated the speed of the vehicle to be in excess of the permitted limit of 30 m p h. He stepped into the road and, by holding up his hand, signalled thedriver to stop. The car slowed down. The driver appeared to be looking menacingly at the officer.When the car reached a point some ten yards from the officer the driver suddenly increased thespeed and drove straight at him. Pc Sales leapt out of the way and so avoided being struck. The car was driven on without stopping.Within half an hour, at the home of the appellant, he and the car were identified by Pc Sales as the driver and vehicle involved in the incident. The appellant deniedthat he was the driver and denied that his car was the one seen by the officer. At his trial thesedenials were maintained. The only issues for the jury were (1) the identification of the driver, and(2) if the appellant was proved to be the driver, did the evidence establish the offences charged or any of them?The jury retired at 12.21 p m and returned to court at 2.27 p m. They were not agreed on thesecond count but they did at that stage return a verdict of not guilty on count 1 and guilty on count3. It is clear therefore that the jury were satisfied that the appellant was the driver of the car butwere not satisfied that his state of mind was that of intending to cause grievous bodily harm. The judge gave the direction as to majority verdicts. At the instigation of one of the jurors, the foremanasked the question:'... did the judge direct the jury that it should be alleged that the act of wanton driving contain adeliberate act and likely to cause bodily harm, or not? [sic].'It is clear that the jury were having some difficulty in relation to the ingredients of the attempt tocause bodily harm by wanton driving. The foreman of the jury introduced the question in thesewords: 'In his objection to the defence's report on count 2'. This was a reference to a discussion between the judge and defending counsel in the course of the latter's final speech. In that discussionthe judge stated that he intended to direct the jury contrary to the contention of counsel in relation tothe element of intent in this offence. It is clear, therefore, that the difficulty experienced by the juryrelated to the very question which is raised in this appeal.The judge gave a further direction on thisaspect. After a three-quarter hour retirement they returned a majority verdict of guilty on this count.The directions of the learned judge as to 'wanton' driving are not challenged. Indeed nocriticism is made as to any of the directions given except those relating to the requirement of intention as an ingredient in the offence in count 2. The first direction as to this followedimmediately after that relating to the attempt to cause grievous bodily harm with intent, in respect of which the judge directed that it must be proved that --  Page 4[1976] QB 1, [1975] 2 All ER 193, [1975] 2 WLR 859, 60 Cr App Rep 272, [ 'he deliberately drove his car at an accelerating speed, having slowed down in response to thesignal, close to the officer, in the position which the officer described in his evidence; and that bysuch conduct he was intending to do grievous bodily harm...'The judge continued, omitting the words not relevant for present purposes:'The second count is less grave. It is alternative to the first... Looking therefore at the secondcharge observe the different language... There the offence is an attempt to cause bodily harm bywanton driving. According to our law any person who causes bodily harm to another by wantondriving is guilty of a criminal offence... Observe there is no allegation in the second charge, and itis not necessary to prove that he intended to cause bodily harm. And that is why the second chargeis much less grave than the first... Observe again here the offence is charged as an attempt... and anattempt again merely means action, doing acts, on the way to the offence. An offence which wouldhave been completed but for something which intervened, namely, the officer stepping out of theway... In order therefore to prove the second charge it has to be proved, of course, that the[appellant] was the person in question, that he deliberately drove, drove in a manner whollyunjustified, and recklessly, and that the driving was likely to cause bodily harm.'At the conclusion of the summing-up the learned judge repeated that direction in these terms:'In the second count you will see that the charge is an attempt to cause bodily harm by wantondriving. It has to be shown to you that the [appellant] deliberately, without justification,irresponsibly, drove his vehicle in such a manner as was likely to cause some bodily harm.'The final direction was that to which we have already referred as given in response to the jury'squestion. It reads:'In establishing count 2, in my opinion, the following must be proved: obviously that theaccused was the driver; that he deliberately drove wantonly -- and by wantonly I mean recklessly,dangerously, irresponsibly, without any sort of lawful justification -- and he must have realised, atthe time that he was driving, that such driving, unless it were to stop, or some other interveningfactor, was likely to cause bodily harm if he went on, or he was reckless as to whether bodily harmwas caused. It is not necessary to prove an intention actually to cause bodily harm. That is thecount on which you have acquitted him. It has to be proved that he deliberately drove wantonly,realising that such wanton driving would be likely to cause, unless interrupted for some reason, bodily harm to Sales, or that he was reckless as to whether such bodily harm would be caused by hiswanton driving. Have I made that quite clear?'The foreman answered, 'Yes.'Whether, after that final direction, the jury focussed their attention on the terms of that directionalone, or whether they sought to apply it together with the earlier directions cannot be known. It isunfortunate that, owing to some momentary confusion or infelicitous choice of words, in the finaldirection the judge told the jury that they had acquitted the appellant of an intention actually tocause bodily harm. That was not so. The striking features, however, of the final direction are that,whereas the judge repeats that there is no requirement of proof of 'intention', he departs from theearlier directions in two ways. First, by incorporating the requirement that the person charged withattempt must be proved to have realised that his act or acts were likely, unless interrupted, to resultin the commission of the completed offence.Secondly, by incorporating, as an alternative torealisation that the acts are likely to result in the commission of the completed offence, the conceptof recklessness in the mind of the accused.
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