¹ Adjamy v. A.G. (1959) 13 P.D. 421. Also see Kahanovitz v. A.G. (1949) 2 P.E. 149, 154; Greenwald v. A.G. (1958) 12 P.D. 2017, 2069; Anon. v. A.G. (1960) 14 P.D. 310, 312, Sitte v. A.G. (1961) 15 P.D. 1373, 1378; Anon. v. A.G. (1962) 16 P.D. 2397, 2401; Anon. v. A.G. (1962) 16 P.D. 2305; Havurah v. Yeruham (1953) 7 P.D. 190, 193; Hertzberg v. A.G. (1951) 5 P.M.S. 115.

² This rule has also been termed the rule of “oblique intent.” See Cross, R., “Specific Intent” (1959) 6 Crim. L.R. 510Google Scholar.

³ Following English Law; see Ya'akobowitz v. A.G. (1952) 6 P.D. 514, 544; Deutsch v. A.G. (1954) 8 P.D. 456, 462, 464, 465. The Supreme Court, in making the distinction between intention, recklessness and negligence, relied on the article of Turner, , “The Mental Element in Crimes at Common Law” in The Modern Approach to Criminal Law, 199Google Scholar. Also see Salmond, , Jurisprudence, 11th ed.411 (edited by Turner, J. C.)Google Scholar. Cf. sec. 2.02(a) (2) of the Model Penal Code, Tentative Draft No. 4; Kenny, , Outlines of Criminal Law, 17th ed.31Google Scholar; Williams, G., “The Mental Element in Crime”, Lionel Cohen Lectures, (11th Series, 1965) Magnes Press, Hebrew UniversityGoogle Scholar (cited as Williams, “The Mental Element”).

⁴ Williams, “The Mental Element”, 10–11.

⁵ It should be noted that Williams, Glanville, Criminal Law, 2nd ed. at 54Google Scholar, sees no reason for distinguishing between the different types of recklessness. However, for a view in support of such a distinction see Hall, J., General Principles of Criminal Law, 2nd ed.116–17Google Scholar.

⁶ Austin, , Lectures on Jurisprudence, 13th impression, 206Google Scholar. Also see Denning, , “Responsibility Before the Law”, Lionel Cohen Lectures, (7th Series, 1961) Magnes Press, Hebrew UniversityGoogle Scholar.

⁷ Mezger, , Strafrecht, 3rd ed.338Google Scholar.

⁸ Ibid. 341.

⁹ Ibid. 349.

¹⁰ Williams, “The Mental Element”, 20.

¹¹ Perkins, , “Rationale of Mens Rea” (1942–1943) 52 Hvd. L.R. 905Google Scholar. Also see Brett, , An Inquiry into Criminal Guilt, 95Google Scholar.

¹² For crimes of this type see Mezger, op. cit., 341, who refers to sees. 164 and 187 of the St. G.B.

¹³ Brett, op. cit., 89; Turner, op. cit., 209; Williams, , Criminal Law, 65Google Scholar; Smith, and Hogan, , Criminal Law, 38Google Scholar. For local decisions see: Ya'akobowitz v. A.G. supra, 559 (sec. 214 (c) of the Criminal Code Ordinance, 1936) (murder in facilitation of a crime); Abu Rabia v. A.G. (1963) 17 P.D. 2913 (sec. 255 of the Criminal Code Ordinance) (abduction); Deutsch v. A.G., supra, 456 (sec. 212 of the Cr. C.O.) (manslaughter by an omission); Desuki v. A.G. (1955) 9 P.D. 1313, 1327 and Graziani v. A.G. (1963) 17 P.D. 2689, 2692 (manslaughter by an unlawful act); Blitz v. A.G. (1960) 14 P.D. 454 (sec. 214 (d)) (murder in order to secure escape from the scene of a crime); Kimmel v. A.G. (1964) vol. 4, 18 P.D. 376, 377 (sec. 326 (2) of the Cr. C.O.) (malicious damage to property); Reznik v. A.G. (1962) 16 P.D. 34 (sec. 6 of the Criminal Code Ordinance (Amendment) (Bribery), 1952) (a go-between in a bribe). Also see sees. 146, 148, 258 of the Cr. C.O. and sees. 1 and 2 of the Criminal Code Ordinance (Amendment) (Fraud, Blackmail and Oppression) Law, 1963, (fraud).

¹⁴ Sec. 251 (a) of the Cr. C.O. Additional examples are sec. 29 (attempt), sec. 233 (disabling in order to commit a felony), sec. 234 (stupefying in order to commit a felony), sec. 235 (acts intended to cause grievous harm) and sec. 295 (housebreaking); crimes which include the element of intent to defraud (such as sees. 304(b) (c) and 349(1) of the Cr. C.O.); crimes which include the element of intent to annoy (such as sec. 286 of the Cr. C.O.) and crimes which include the intention to endanger the security of the State (see sees. 7, 8, 9, 13, 17, 21, 22, 23(b), 31(b) of the Criminal Code Ord. (Amend.) (State Security) Law, 1957). Some lawyers have termed intention of this type “specific intent”, but this term has numerous meanings and is far from clear. See R. Cross, “Specific Intent”, supra, n. 2; J. Hall, op. cit., 142. Also see the notes to sec. 2.02 of the Model Penal Code, T.D. No. 10.

¹⁵ Sec. 214(b) of the Cr. C.O. and see Ya'acobowitz v. A.G., supra, 558.

¹⁶ Sec. 23 of the Cr. C.O.

¹⁷ Such is also the case in the crime of attempt according to sec. 29 of the Cr. C.O., with the possible exception of the case in which the accused commits the final stage which depends upon his intention to complete the perpetration of the crime being committed. Another example: sec. 257 of the Cr. C.O. (abducting with intent secretly and wrongfully to confine a person).

¹⁸ Such as the crime of trespass according to sec. 286 of the Cr. C.O. where the consequence of annoyance results, or is likely to result from the act of trespass itself, or in the crime of delivering information to the enemy according to the Criminal Code Ordinance (Amendment) (State Security) Law, 1957, where the impairment of the State's security is likely to result from the very act of delivering information without any further act on the part of the accused being necessary.

¹⁹ Adjemy v. A.G. supra, 433.

²⁰ Post.

²¹ See post, part E.

²² A.G. v. Greenwald (1958) 12 P.D. 2017, 2072. The Court adopted the approach of Glanville Williams, op. cit., 43, 368. The attitude of English courts, however, is not consistent and they seem to tend towards the opposite view. See R. v. Lomas (1913) 23 Cox C.C. 765; R. v. Bullock [1955] 1 All E.R. 15; Pope v. Minton (1954) 1 Crim. L.R. 711; Bainbridge [1959] 3 W.L.R. 656; National Coal Board v. Gamble [1959] 1 Q.B. 11. In America, on the other hand, the generally accepted approach is the same as that adopted by our courts; see U.S. v. Peoni 100 F. 2d 401, 402. U.S. v. Falcone 109 F. 2d. 579.

²³ It is possible that one should include here the case in which the accused knows that another person is about to commit violence on a certain person and fails to warn the victim (Cf. A.G. v. Greenwald, supra, 2076–82). However, in such a case a much more difficult question arises as to whether it is at all possible to be an accessory to a crime by an omission. In this regard the views in Israel are divided, and according to the attitude of the majority of the Court in A.G. v. Yarkoni (1964) vol. 4, 18 P.D. 7, an omission cannot make a person an accessory to a crime, except where the law expressly imposes a duty to act. This decision greatly limits the sphere of cases in which a person can be held to have been an accessory to a crime by an omission.

²⁴ It is true that in the crime of trespass with intent to annoy, according to sec. 286 of the Cr. C.O., in which the rule of constructive intention has been applied, the question is one of the effect of the act of one person (the trespasser) on that of another (the occupier). The relevant factor here, however, is the emotional reaction of the occupier (annoyance) which is by its very nature spontaneous, whilst in the case of an accessory the question is that of the act or conduct of the principal party who is likely to refrain from this conduct.

In Lang v. Lang [1955] A.C. 411, 428 the Court, referring to the difficulty involved when the question is the effect of one person's act on the conduct of another, said: “The fact that the question in issue involves a consideration of the effect of the action of one person upon another, adds to the complexity of the case.” Also see p. 429 of the judgment. (In the end, however, this difficulty did not prevent the Court in this case from imputing to the accused the intention to make his wife leave him as a result of his cruel behaviour towards her, even though he wished her to remain with him.)

This, in our view, also provides an explanation for the decision in Reg. v. Fretwell (1862) 9 C.A.R. 152. In this case a man was accused of being an accessory before the fact in the crime of suicide by a woman whose pregnancy he had caused, when he provided her with a poisonous drug for the purposes of procuring an abortion after she had threatened to commit suicide if he did not get her the drug. This drug caused the woman's death. In acquitting the accused the Court said that: “it would be consistent with the facts of the case that he hoped she would change her mind, and it might well be that the person hoped and expected that she would not resort to it.”

Cf. Hart, and Honoré, , Causation in the Law, 48et seq.Google Scholar

²⁵ See sec. 23(1) of the Cr. C.O.

²⁶ See Williams, G., Criminal Law, 369–70Google Scholar. If this is the main consideration it would seem that even if the accused's attitude towards the commission of the crime by the principal party was one of indifference (see n. 33, infra) this would not be sufficient to convict him of being an accessory to the crime.

²⁷ Beatty v. Gillbanks (1882) 9 Q.B.D. 30. Also see A.C. v. Glazer (1952) 6 P.M.S. 107.

²⁸ See Ya'akobozuitz v. A.G., supra, at 545–46. The legislature may, of course, expressly make this a substantive rule for the purposes of a particular offence, as in the crime of sedition according to sec. 60(2) of the Cr. C.O. In England there is some doubt whether the rule is not perhaps a substantive rule in the light of the decision in D.P.P. v. Smith [1960] 3 W.L.R. 546. See Williams, “The Mental Element”, 37.

²⁹ The duty imposed upon the accused is merely the duty of adducing contradicting evidence, whilst the final burden of proof obviously rests on the prosecution. Cf. Zarka v. A.G. (1950) 4 P.D. 504, 522.

³⁰ It is obvious that if in actual fact the accused did not know of this consequence no intention is to be imputed to him, even if a reasonable man in the accused's position would have possessed such knowledge. Cf. Havurah v. Yeruham, supra, 192.

³¹ It would seem that in Sitte v. A.G., supra at 1378 and especially at 1379 the Court did not consider this distinction. The false impression made by this decision was, however, rectified by the Court in Anon. v. A.G. (1962) 16 P.D. 2397, 2402. In R. v. Steane [1947] 1 All E.R. 813, 817, the Court also apparently did not distinguish between these two rules. See the criticism of this judgment in Williams, G., Criminal Law, 40–41Google Scholar and also see Brett, op. cit., 18.

³² It is quite clear that if the court does not believe that the accused desired another consequence, there is no need to apply the rule of constructive intention, for intention can be imputed to the accused by virtue of the fact that he did not succeed in rebutting the presumption which arises from the rule of “natural consequences”, and this presumption in such a case therefore becomes conclusive.

³³ The present writer is of the opinion that when the knowledge of the accused reaches a high degree of probability no distinction should be made between the case in which the accused's attitude towards the consequence was one of indifference and that in which it was a negative attitude. Such a fine distinction may perhaps be useful when the accused could foresee that the consequences were possible but not practically certain, and the distinction serves to differentiate between the more serious and less serious types of recklessness. (But see n. 5, supra). However, when the accused knows that the consequence is virtually certain, what importance attaches to the attitude towards the consequence which existed in the mind of the accused? It would therefore appear that the Court's reference to the accused's attitude towards the consequences of his actions in Sitte v. A.G., supra, 1379 was superfluous. It should also be noted that in such cases it is extremely difficult to determine whether the accused's attitude towards the consequence was one of indifference or of express lack of desire.

³⁴ Per Silberg J. (as he then was) in Sitte v. A.G., supra.

³⁵ Cf. R. v. Desmond (1868) 11 Cox C.C. 146 and see Brett, op. cit., 90.

³⁶ See Lang v. Lang, supra, n. 24.

³⁷ In Adjamy v. A.G., supra, at 433, the Court pointed this out when it stated: “There is no doubt that this view is for the public benefit and is therefore of great value.” The same idea of the public benefit of the rule was mentioned in Kahanowitz v. A.G., supra, 149, 154. In rejecting the accused's argument that he had trespassed on the complainant's property in order to fulfil an interest of his own and not in order to annoy the complainant, the Court said that if the rule were not applied “it would be impossible in any case to convict a person of an offence under sec. 286 if he derived personal benefit by entering upon the property, for the accused would always argue that he only wished to benefit himself, and if inconvenience was caused to the complainant by his act why should he be to blame.”

³⁸ “One cannot excuse the probable consequences of his own voluntary act by claiming that he had a mental reservation, and performed the act or acts voluntarily done, without an intent.” (Corpus Juris Sec. vol. 22, p. 123, sec. 135).

³⁹ Cf. Williams, G., Criminal Law, 36Google Scholar.

⁴⁰ A.G. v. Rosin (1948) Hamishpat 115, 116 and see Brett, op. cit., 95 who, in his criticism of the decision in R. v. Steane, says that the Court in laying down that “his real intention was to preserve himself, not to commit the crime, confused the issue by presupposing that one can have only one intention at a time in reference to a given piece of behaviour”. Cf. Sinnasamy Seluanayagam v. The King [1951] A.C. 83, 87 (P.C.); Crafter Hand Woven Tweed Ltd. and others v. Veitch [1942] A.C. 435, 445.

⁴¹ As was done, e.g. in Sinnasamy, supra, 87, in which a man was accused of criminal trespass with intent to annoy and where the Court laid down that: “The intention specified in the section must be the dominant intention.” Also see Ex p. Taylor (1886) 18 Q.B.D. 295; Ex p. Hill in re Bird (1883) 23 Ch. D. 695, 704.

⁴² See Salmond, op. cit., 415.

⁴³ See, e.g. the decision in R. v. Gillow (1825) 168, E.R. 1195. A man was convicted of cutting and maiming with intent to do grievous bodily harm when he shot at keepers who came to arrest him for poaching-it was perfectly clear that the main and operative intention of the accused was to prevent arrest and not to wound the keepers. The Court, however, was not prepared to take this into consideration.

⁴⁴ Austin, op. cit., 205 and see Brett, op. cit., 90.

⁴⁵ See Anon. v. A.G. (1962) 16 P.D. 2305, 2308, and Kokas v. A.G (1959) 13 P.D. 177, 178. Also see Paton, Jurisprudence, 366 (who refers to the German approach to this question); Kenny, , “Intention and Purpose”, (1915) 31 L.Q.R. 299, 301–02Google Scholar; N.C.B. v. Gamble [1959] 1 Q.B. 11, 23; Reg. v. Hamp 6 Cox C.C. 167.

⁴⁶ Sec. 11(3) of the Cr. C.O.

⁴⁷ The accepted definition of motive is twofold: (a) the emotion which prompts an act, (b) the remote intention, which exceeds the actus reus of a crime if this intention is not itself included in the definition of the crime (if this intention constitutes an element of the crime it is not termed motive but specific intent or further intent). See G. Williams, Criminal Law, 48.

⁴⁸ This aspect was considered by the Court in Lang v. Lang, supra. At 422 the Court cites with approval the dictum of Lowe J., Justice of the Supreme Court of Victoria, that: “A man may intend to retain his wife's presence, but also at the same time to pursue a certain Une of conduct. If at all hazards he deliberately pursues that line of conduct his intention to retain his wife's presence is conditional or subservient to the other intention.”

Also see Brett, op. cit., 90.

⁴⁹ [1947] 1 All E.R. 813. A similar approach was adopted in Bourne (1952) 36 C.A.R. 125, 128.

⁵⁰ The Court refers to the “rule of natural consequences” and does not clearly distinguish that the question was not one in the law of evidence of proving intention, since the accused did not argue that he was not aware of the consequence of his actions The whole question was whether, in the light of the fact that the main desire which motivated the accused's action was his desire to save his family and not a desire to assist the enemy, he should still be imputed with the intention to assist the enemy. See no. 28, supra.

⁵¹ Williams, G., Criminal Law, 41Google Scholar, who cites Reg. v. Toison (1889) 23 Q.B.D. at 186; and see Russell, , On Crime, 12th ed., vol. 1, 53Google Scholar.

⁵² For such an approach see Howard, Colin, Strict Responsibility, 191Google Scholar.

⁵³ It would seem that the language of sec. 18 of the Cr. C.O., which deals with the defence of “necessity” and lays down that the effect of this defence is that the accused's acts “may be excused”, would provide for such an interpretation. However, in A.G. v. Pantiev (1949) 2 P.E. 34, 54, the Court adopted the opposite view when it said: “Every act done in self-defence in which the conditions laid down in sec. 18 are fulfilled, is an innocent act, a permissible act which does not constitute a crime … and the ‘pardon’ referred to in the section is not an official or even an unofficial act carried out by the court when delivering judgment.”

⁵⁴ See Stephen, History of Criminal Law, 2nd ed., ch. 18.

⁵⁵ An illustration may be provided. Let us assume that a hangman executes a death sentence. According to the approach of Glanville Williams it may be said that the hangman intended to commit murder, but that he has the defence of “justification”. However, in the present writer's view it may indeed be said that the hangman in tended to cause the death of a person, but he has no intention to murder, as his intention is to carry out the act of putting a person to death when this is perfectly legal and justifiable. In the same way it may be said that Steane did not intend to assist the enemy in circumstances in which this was unjustifiable and that he therefore had no criminal intention.

In less modern times a view similar to that expressed in the present article existed, although its theoretical basis was different. Instead of saying that mens rea must relate to all elements of the actus reus, including the implied element of “illegality”, it was said that the hangman has done nothing wicked or immoral and therefore displayed no mens rea. (See Kenny, , Outlines of Criminal Law, 18th ed. (edited by Turner, J.W.C.) p. 24, sec. 15.)Google Scholar In other words, the idea is based on morality which is not defined and depends upon each individual's basic outlook. The criticism of this approach is therefore justified; see Kenny, ibid., sec. 16.

⁵⁶ (1887) 18 Q.B.D. 295.

⁵⁷ At 299 Lord Esher says: “You cannot throw out of account the fact that a man was threatened with something which he would not at all like, in order to see whether he did not act with the dominant view of getting rid of that pressure.” And at 300: “I think that the bankrupt cared no more for Taylor [the creditor to whom payment under pressure was made—D.B.] than for any other creditor but that he acted solely with the view of saving himself from exposure, infamy, and danger.” (Italics supplied.) However, one must remember that consideration of the “force of circumstances” apparently derives from the view that the desire to give fraudulent preference must be the dominant desire. See n. 41, supra.

⁵⁸ [1915] 2 K.B. 321.

⁵⁹ At pages 328 and 337 of the decision.

⁶⁰ Even in R. v. Fretwell (1862) 9 Cox C.C. 152, 154, on close examination one may find this element of consideration of the “force of circumstances” in the fact that the threat of the woman to commit suicide was taken into account. The Court remarks: “in the present case the prisoner was unwilling that the deceased should take the poison, it was under her instigation and under the threat of self destruction, that he procured it and supplied it to her.” (Italics supplied.) Also see the comment on this case in A.G. v. Greenwald, supra, at 2071.

⁶¹ However, see n. 33, supra.

⁶² It is submitted that Greenwald's Case in which, at 2071, the Court apparently considered the “force of circumstances”, is no authority for posing this view for three reasons:

(a) That case involved the question of an accessory before the fact where it is doubtful whether the rule of constructive intention can be applied at all.

(b) The knowledge of Kastner, “the accused-in-fact” in this case of criminal libel regarding the extermination of Hungarian Jewry, did not reach a high degree of probability and the remarks about “force of circumstances” were obiter.

(c) In Lazar Altshular v. A.G. (1963) 17 P.D. 2974, the Court expressly rejected the argument that the accused had contacted agents of the enemy in order to escape from pending prison sentences for other crimes and thereby in fact rejected a plea of “force of circumstances”.