A foundational mens rea case establishing that “maliciously” in statutory offences requires subjective foresight of harm, not moral wickedness. Cunningham is the leading authority for the modern definition of recklessness: the defendant must either (1) intend the harm, or (2) foresee that the harm might occur and nevertheless take the risk. This replaced earlier vague notions of “wickedness.” 

Cunningham entered the cellar of a vacant house and tore a gas meter from the wall to steal the money inside. He did not turn off the gas supply. Coal gas escaped, travelled through a porous dividing wall, and seeped into the adjoining house where an elderly woman, Mrs Wade, was asleep. She inhaled a large quantity of gas, endangering her life. Cunningham was charged under s 23 Offences Against the Person Act 1861 for unlawfully and maliciously causing a noxious thing to be taken by another. The trial judge told the jury that “malicious” simply meant acting “wickedly.” 

Whether “maliciously” in s 23 required proof that the defendant intended to cause the harm, or at least foresaw the risk of that type of harm, rather than merely acting in a morally wrongful or “wicked” manner. 

Appeal allowed. The court quashed the conviction. The judge had misdirected the jury by equating “maliciously” with “wickedly.” The proper test is whether Cunningham foresaw the risk of the harm (gas leaking and endangering life) but went ahead anyway. It could not be said with certainty that a properly directed jury would have convicted. 

“Maliciously” in statutory offences requires subjective foresight of the particular type of harm that actually occurred. The defendant is malicious if:

1. He intended the harm, or

2. He foresaw that the harm might result from his conduct, but nevertheless went on to take the risk.

Mere “wickedness” does not satisfy the mens rea; the prosecution must prove either intention or subjective recklessness.