Jhuboo v The Queen

• Jurisdiction: Bermuda
• Judge: Kawaley, C.J.
• Judgment Date: 15 April 2013
• Court: Supreme Court (Bermuda)
• Docket Number: Cr App 13 of 2013
• Date: 15 April 2013

Supreme Court

Kawaley, C.J.

Cr App 13 of 2013

Jhuboo

and

The Queen

Appearances:

Mr. Kamal Worrell, Lions Chambers, for the appellant

Ms. Karen King, Office of the Director of Public Prosecutions, for the respondent

Criminal Law - Criminal Law — Appeal — Appeal against a conviction of burglary — whether the defence of intoxication is a valid defence to trespass and theft or other specific intent crimes — whether there is a requirement of an intention to achieve a particular result as an element of a particular offence — Appeal allowed conviction quashed.

Kawaley, C.J.

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 4th day of October 2012 in Smiths' 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 of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any actual bodily harm.” [emphasis added]

6 Mr. Worrell's primary submission is that stealing or attempted stealing for the purposes of section 339(1)(b) is an offence which requires proof of an intention just as much as any offence under section 339(1(a). One only has to review the elements of the offence of stealing which appear in Part XIX of the Criminal Code (The title of Part XIX is: “Theft, Burglary and Cognate Offences”.) to see that there is considerable force in that submission.

7 The basic definition of theft in section 331(1) of the Criminal Code is that “[a] person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and ‘thief’ and ‘steal’ shall be construed accordingly”. Section 336(1) provides:

“336(1) A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the...