Explaining the meaning of the verb “to intend” led the legislature of the Bahamas into a complex mess of ideas in s 12 of its Penal Code.
Considering this, the Privy Council, in Miller v R (Bahamas) [2023] UKPC 10, observed at [18] that:
“… intention is an ordinary facet of human conduct and it is not normally a difficult concept to understand. In most cases it ought not to require any explanation. In the absence of an admission, or statement as to intention, this ingredient of an offence will generally be established through the process of drawing an inference from the surrounding, or primary, facts as proved. Such an exercise is part and parcel of the ordinary decision-making process which a jury is required to undertake….”
And in emphasising the importance of simple directions to a jury, the Board held that simplicity would have sufficed in this appeal. Indeed, the circumstances were so compelling that despite a series of judicial misdirections at trial on the meaning of “intend to kill” the proviso could be applied so that the appeal against conviction for attempted murder was dismissed.
In its effect, s 12 (reproduced in the judgment at [13]) did not alter the ordinary meaning of “intend”. This was so, despite its intensive mixing of complex concepts: causing, contributing to causing, belief, unlikely, voluntarily, probably, reasonable caution, great risk, presumed, shown that, probably not.
Anyone who was unsure of the meaning of the verb “to intend” would consult a dictionary, and would find that it means to have as one’s purpose. Enough said.
Section 12 widens this. Here, intention is not just a matter of what the defendant wants to occur. It also includes what the defendant believes will probably occur.
Subsection (3) is so remarkable that I set it out here:
“If a person does an act of such a kind or in such a manner as that, if he used reasonable caution and observation, it would appear to him that the act would probably cause or contribute to cause an event, or that there would be great risk of the act causing or contributing to cause an event, he shall be presumed to have intended to cause that event, until it is shown that he believed that the act would probably not cause or contribute to cause the event. “
In this case, the Board pointed out at [40] that there was no need for the judge to have considered s 12(3) at all. One of the judge’s errors was to interpret s 12(3) as applying a standard of negligence and objectively assessed intention (at [43]).
Most lawyers reading s 12(3) would think it does indeed impose liability for negligence (failure to use reasonable caution and observation in assessing the risk of a consequence), and further, that it reverses the onus of proof by the use of a presumption of intention.
That difficulty was brushed aside. At [40] it was held that the jury must be given “clear guidance”, and that s 12(3) should not be read to a jury. If it is read, it needs “proper explanation”, and “clear exposition” to avoid suggesting to the jury that an inference of intent must necessarily be drawn.
This was not a case where foresight of consequences was properly in issue (the appellant had fired a shotgun at a person from a distance of "fifty to sixty feet" (at [3])), but
“… Even in a case in which foresight of consequence is properly in issue the Board doubts that there will be value in inviting a jury to absorb and apply the provisions of [s 12(3)].” (at [41])
The message seems to be that there may be times when a legislative intent is more clearly expressed by a court than by the legislature itself.
