Mwarami Saidi v. R. Crim. App. 233-D-71; 13/8/71; Biron J.

Mwarami Saidi v. R. Crim. App. 233-D-71; 13/8/71; Biron J.

The appellant a Police constable was convicted of criminal trespass. The appellant went to the complainant’s house in the early hours of the morning, announced himself by name and forced an entry through the window. He bit the complainant on her chin and ran away. Shortly afterwards at about 2.30 a. m. he was seen by a police sergeant throwing stones at his own house. From the evidence it appears that the appellant was drunk.

Held: (1) “The appellant was charged and convicted under sub-section (a) of section 299 of the Penal Code. As will be noted it is a necessary ingredient of he offence that the entry on the property must be with intent to intimidate, insult or annoy. The Magistrate has not in his judgment considered the question of intent, which is as essential an ingredient of the offence as is the factum. Had he paused to consider the question of intent, I very much doubt whether he would have convicted the applicant of the offence, for as in abundantly clear from the evidence of the prosecution and of the defence, the appellant must have been and obviously was at the material time, very drunk. It is extremely doubtful whether he was even capable of forming any intent. And even if he was, there is no reason to suppose that he entered the complainant’s room with the intention of either intimidating, insulting or annoying her.” (2) Conviction quashed.