Regina v. Faulkner

Barry, J. - A broad proposition has been contended for by the Crown, namely, that if, while a person is engaged in committing a felony, ... he acidentally does some collateral act, which if done wilfully would be another felony either at common law or by statute, he is guilty of the latter felony. I am by no means anxious to throw any doubt upon, or limit in any way, the legal responsibility of those who engage in the commission of felony, or acts mala in se; but I am not prepared without more consideration to give my assent to so wide a proposition. [T]o constitute an offence under the Malicious Injuries to Property Act, ... the act done must be in fact intentional and wilful, although the intention and will may (perhaps) be held to exist in, or be proved by, the fact that the accused knew that the injury would be the probable result of his unlawful act, and yet did the act reckless of such consequences. ... The jury were, in fact, directed to give a verdict of guilty upon the simple ground that the firing of the ship, though accidental, was caused by an act in the course of, or immediately consequent upon, a felonious operation, and no question of the prisoner's malice, constructive or otherwise, was left to the jury. ... That direction was erroneous, [and] the conviction should be quashed.

Fitzgerald, J. - I concur in the opinion with my brother Barry, and for the reasons he has given, that the direction of the learned judge cannot be sustained in law, and that therefore the conviction should be quashed. Counsel for the prosecution in effect insisted that the defendant, being engaged in the commission of, or in an attempt to commit a felony, was criminally responsible for every result that was occasioned thereby, even though it was not a probable consequence of his act or such as he could have reasonably foreseen or intended. No authority has been cited for a proposition so extensive, and I am of opinion that it is not warranted by law.