NAGAUNGrAM J.—Daniel Silva v. Vanden Drieaen
1948Present: Nagalingam J.
DANIEL SILVA, Appellant, and VANDEN DRIESEN (Inspectorof Police), Respondent
S. C. 786-—M. C. Nuwara Eliya, 2,646
Penal Code—Mischief—Damage to car as a result of intoxication—Section 408.
Where damage is caused to a car as a result of its being driven by aperson in a state of intoxication, such person cannot be said to havecommitted mischief.
AA.PPEAL from a judgment of the Magistrate, Nuwara Eliya.
U.A. Jayasundera, for the accused, appellant.
A. E. Keuneman, Croum Counsel, for the Attorney-General.
Cur. adv. vult.
August 31, 1948. Nagalingam J.—
The appellant in this case was charged with having committed theftof a motor car or in the alternative with having committed mischief inrespect of it. After trial, the learned Magistrate acquitted him of thecharge of theft but convicted him of having caused mischief. Counselappearing for him takes the point that, on the facts as found by thelearned Magistrate, the offence of mischief is not disclosed.
NAGAX.INGAM J.—Daniil Silva v. Vanden Driesen
The conclusion reached by the learned Magistrate on the facts maybe summarised very briefly as follows :—The appellant and the driverof the car in regard to which the offence was alleged to have been com-mitted appear to have had drinks earlier in the day, and later the appel-lant drove the car from where it was halted in the direction of a tavernin order to obtain further supplies, and in the course of his driving thecar he met with an accident due. to the circumstance that as a resultof the liquor he had imbibed he was not in a condition to drive the carwith reasonable care. In this state of facts the question, then, is : Hasthe offence of mischief been made out ?
There are two essentials requisite to constitute the offence of mischiefunder our law. One is mens rea, and the second is an act which causesthe destruction of property. In regard to the first requisite, whichis the mental element, the section enacts one of two alternatives, eitheran intent to cause wrongful loss or damage, or knowledge that the offenderis likely to cause wrongful loss or damage. It is conceded on behalfof the prosecution that the element of any intent to cause loss or damageis lacking but it has been argued that the appellant must be held to haveknown that he was likely to cause loss or damage. It is urged that wherea man, the worse for liquor, although not so far gone as to make himincapable of knowing the nature of his acts, takes another’s car andattempts to drive it, he must be held to have knowledge that by his acthe was at least likely to cause damage to the vehicle. I cannot sub-scribe to this proposition because, to my mind, it is neither the propernor reasonable inference to be drawn from the facts. The more correctview would appear to be that the offender continues in the belief that hisphysical and mental powers are normal and that if any thought crosseshis mind as to any impaired state of his physical and mental powershe would assume that his faculties are not so impaired as to prevent himfrom exercising a proper and sufficient control over the vehicle. Nothingcould have been further from his mind than that he would not be ableto control the vehicle or that he would get involved in an accident and,in any event, to such a man it is not possible to ascribe knowledge thatby his driving the car he was likely to cause damage to it. It cannottherefore be said that when the appellant drove the car he had knowledgethat he was likely to cause damage to the car by his driving. The mentalelement required, therefore, fails.
In regard to the actual act itself, it is necessary to observe that theprimary objective of the act must be the destruction of the property.It would be insufficient, to satisfy the requirement of the section, merelyto establish that, in doing an act the object of which was not to causedestruction of property, damage to or destruction of property had beencaused. The term “ destruction ” in this section involves more than thebare idea of damage or destruction to property. It involves the ideaof destruction of property out of a sense of malice, ill-will or spite, oreven wantonly, but where the damage to property is caused as a resultof negligence or recklessness in driving a vehicle, the elements of malice,ill-will, spite or wantonness are negatived. Besides, as stated earlier,it is essential that the destruction of property must be the primarymotive in doing the act which causes the damage to property. In other
NAGAX.INGAM J.—Daniel Silva v. Vanden Driesen
words, the damage to or destruction of property must be intended toresult from the act itself. Damage to or destruction of property thatresults as a remote consequence from an act which is not intended tocause damage to or destruction of property cannot be regarded as destruc-tion of property within the meaning of the section. The driving of aoar with the object of obtaining further supplies of liquor can in no sensebe said to have for its objective the destruction of or damage to the car ;the damage caused to the car was occasioned by negligence and wasneither intended nor anticipated. The second requisite too is, therefore,absent in this case.
The charge of mischief too against the appellant fails. The convictionis set aside and the accused is acquitted.
DANIEL SILVA, Appellant, and VANDEN DRIESEN (Inspector of Police), Respondent