Jhuboo v R

• Jurisdiction: Bermuda
• Judgment Date: 15 April 2013
• Date: 15 April 2013
• Docket Number: Appellate Jurisdiction 2013 No 13
• Court: Supreme Court (Bermuda)

2013 Bda LR 29

In The Supreme Court of Bermuda

Appellate Jurisdiction 2013 No 13

Between:

Jasvin Jhuboo

Appellant

and

The Queen

Respondet

Mr K Worrell for the Appellant

Ms K King for the Respondent

The following cases were referred to in the judgment:

Smith v RBDLR [1996] Bda LR 9

Burglary — Intoxication defence — Whether necessary intent

JUDGMENT of Kawaley CJ

Introductory

1. In this case the Appellant appeals against his conviction in the Magistrates' Court (Worshipful Khamisi Tokunbo) on January 14, 2013 for an offence of burglary contrary to section 339(1)(b) of the Criminal Code. The central allegation was that on the 4^th day of October 2012 in Smith's Parish, having entered as a trespasser, he attempted to steal therein.

2. At trial the facts asserted by the Prosecution were not challenged by the Defence and at the end of the Prosecution case the Defendant gave evidence in support of a defence of intoxication. At the end of his evidence it appears that the Learned Magistrate put to the Defendant's counsel that intoxication was a defence relevant only to an offence under section 339(1)(a) of the Criminal Code and not to an offence under section 339(1)(b) of the Criminal Code. The language that the Learned Magistrate used suggests that he had in mind the common law distinction between offences of basic intent and specific intent.

3. I should also add that the Record does suggest that the Defendant conceded the defence; but Mr Worrell has represented to the Court without any challenge from the Respondent (although Ms King did not appear below) that he did not in fact make a formal concession. Be that as it may it is clear from the Record that a conviction was entered without the Learned Magistrate considering the defence of intoxication because he took the view that as a matter of law it did not apply.

4. The sole ground of appeal was that ‘the Learned Magistrate misdirected himself in law when he ruled that the intoxication of the Defendant at the time of the alleged offence was not relevant to the offence pursuant to section 43 of the Criminal Code 1907’.

Legal findings on merits of appeal

5. The relevant offence is section 339(1)(b) of the Criminal Code which provides as follows:

‘339 (1) A person is guilty of burglary if —

(a) he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2);

(b) or having entered any building or part...