DALTON A.C.J.—Wijeymanne v. Kandiah.
1933Present: Dalton A.C.J.
WIJEYMANNE t KANDIAH.
409—P. C. Trincomalee, 7,846.
Criminal trespass—Proof of intent to annoy—Primary motive of accused.
Where an accused is charged with entering the premises in the occu-pation of a person with the intention of molesting a servant, intendingor knowing that he would thereby annoy the occupier,—
Held, that in order to constitute the offence of criminal trespass theremust be proof that the primary motive of the accused was the intent toannoy.
PPEAL from a conviction of the Police Magistrate of Trincomalee.
N. E. Weerasooria (with him Kariapper), for accused, appellant:
Aelian Pereira, for complainant, respondent.
August 21, 1933. Dalton A.C.J.—
The appellant has been convicted on a charge of criminal trespass.The charge was that he on January 20, entered into the premises in theoccupation of L. H. Nicholas with the intention of molesting his ayah,intending or knowing that he would thereby annoy the said Nicholas andother persons in the occupation of that house. He appeals against theconviction on . the ground that there is no evidence that he intended toannoy either Nicholas or any other person in occupation of the house andhence it is not proved he has committed the offence charged.
• 1 J?r N. L. R. 410.
DALTON A.C.J.—Wijeymanne v. Kandiah.
There is no doubt accused was caught on the premises of Nicholas onthe evening of January 20 about 8 p.m. There is also reason to think hewas attempting to visit the ayah on the premises. No other reason isput forward by the prosecution for his presence there, and there is evidenceto show he had been seen on the premises on a previous occasion veryearly in the morning and ran away when seen. Whether or not the ayahwelcomes his attentions does not appear, but it was not suggested to herwhen she gave evidence, that she was annoyed at accused’s attentionsalthough she says she did not encourage him. The case for the prose-cution as disclosed by the evidence alleges an intention co annoy onlyNicholas, the master of the house.*
If this is a case of the accused paying attention to the ayah, andattempting to visit her secretly on her master’s premises, as the Magis-trate finds it to be, then it is fairly obvious that the very last person hewould wish to see on the premises or to know of his visits would be themaster of the house. An essential element of the offence as charged isthe intention to intimidate, insult, or annoy. Mr. Pereira, in support ofthe conviction, argues that accused must have known Nicholas would beannoyed if he was discovered. Discovery, he says, was a possible resultfollowing upon his going on the premises, and therefore accused mustbe taken to have intended what was a possible result of his act. Herelies upon the case of Emperor v. Lakshman Raghunath1 cited byWood-Renton J. in Suppaiya v. Ponniah The conclusions howeverof Fulton J. when applied to the facts of this case seem to me to be againstcounsel’s contention. What is stated there, amongst other things, isthat there may be no wish to annoy, but if annoyance is the naturalconsequence of the act, and if it is known to the person who does the actthat such is the natural consequence, then there is an intent to annoy.The case being considered by Wood-Renton J. was one in which an entrywas made under a bona fide claim of right, which he in his judgmentdistinguishes from cases of house-trespass by night for the purpose ofpursuing an intrigue. In the latter cases he points out that the realprimary motive of the trespasser is something quite different from anintention to annoy, and the offence whatever else it may be is not criminaltrespass with intent to annoy, even if annoyance may in fact be in somemeasure foreseen as possible or probable result of it.
The same matter is considered by Bertram C.J. in King v. Essanhamy *.He points out that when a man does an act he may have several intentsat once. In his* view what is meant when a person is charged withtrespassing on premises “ with intent to intimidate, insult, or annoy anyperson therein” is that he has a substantial intent in one of thesedirections.
Applying these authorities to the facts of this case, I am satisfiedthat no intent to annoy Nicholas as set out in the charge, or any otherperson on the premises, has been proved, and therefore the convictionmust be set aside, the appeal being allowed.
2 14 N. L. R. 4?*5.
1 26 Bombay 558.
* 9 C. W. R. 196.
WIJEYMANNE v. KANDIAH