Smith v The Queen (Jamaica)  UKPC 43 (14 November 2005)
Privy Council Appeal No. 44 of 2004
Evon Smith Appellant
The Queen Respondent
THE COURT OF APPEAL OF JAMAICA
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 14th November 2005
Present at the hearing:-
Lord Hope of Craighead
Lord Walker of Gestingthorpe
[Majority Judgment delivered by Lord Hope of Craighead]
"2 Capital Murders
(1) Subject to subsection (2) [where two or more persons are guilty of the murder], murder committed in the following circumstances is capital murder, that is to say –
(d) any murder committed by a person in the course or furtherance of –
(ii) burglary or housebreaking;
(iii) arson in relation to a dwelling house; or
(iv) any sexual offence."
Every person who in the night –
(1) breaks and enters the dwelling-house of another with intent to commit any felony therein; or
(2) breaks out of the dwelling-house of another, having –
(a) entered such dwelling-house with intent to commit any felony therein; or
(b) committed any felony in such dwelling-house, shall be guilty of felony called burglary, and on conviction thereof –
(i) where the felony committed in the dwelling-house is rape, shall be liable to imprisonment for life; and
(ii) in any other case shall be liable to imprisonment for a term not exceeding twenty-one years."
"40. House-breaking and committing felony
Every person who –
(1) breaks and enters any dwelling-house, or any building within the curtilage thereof and occupied therewith …, and commits any felony therein; or
(2) breaks out of any such place, having committed any felony therein, shall be guilty of felony, and on conviction thereof –
(a) where the felony committed in any such place is rape, shall be liable to imprisonment for life; and
(b) in any other case shall be liable to imprisonment for a term not exceeding ten years.
41. House-breaking with intent to commit felony
Every person who, with intent to commit any felony therein –
(a) enters any dwelling-house in the night; or
(b) breaks and enters any dwelling-house, place of divine worship, or any building within the curtilage thereof …
shall be guilty of felony, and on conviction thereof liable to imprisonment with hard labour for any term not exceeding seven years."
Dissenting judgment by Lord Hoffman and Lord Hutton
"what the appellant did in this case was to commit an act of burglary in the course of a murder, not a murder in the course of a burglary. In other words, his only purpose was to kill. There was only one criminal purpose, and this was not within what the statute defines as capital murder."
The majority then state that in their opinion:
"this is a correct description of what took place. The appellant broke into the house for the sole purpose of killing his victim. There was no evidence that he had any other criminal intention."
We are unable, with respect, to accept this analysis. Burglary is committed by entry into a dwelling-house with the intention of committing a felony therein. The burglar remains a burglar from the moment he enters until, at the very earliest, his felonious intention have clearly been completed or abandoned. The fact that the intention which characterised his entry as burglary was an intention to commit a murder cannot mean, as a matter of law or logic, that he was not a burglar when he committed the actual murder. On the contrary, it represented the accomplishment of the very purpose for which he entered. If he was a burglar when he killed, it seems to us right to describe the killing as having been in the course of a burglary. On the other hand, it seems to us wrong to say that the burglary was in the course of a murder. He was a burglar both before and probably after he was a murderer. If a man breaks into a dwelling-house to steal or to rape the fact that his purpose is to commit one or other of these offences does not mean that the theft or rape is not committed in the course of a burglary. Similarly, in our opinion, a man who breaks into a dwelling-house to murder commits a murder in the course of a burglary, and although it may be said that he has only one overall intention, in law he has the necessary intention to constitute burglary and the necessary intention to constitute murder.
"… the Legislature, in enacting the burglary and felony-murder statutes, did not exclude from the definition of burglary, a burglary based upon the attempt to assault, but intended that the definition be 'satisfied if the intruder's intent, existing at the time of the unlawful entry or remaining, is to commit any crime'."
In each case the appellate court emphasised that the intention of the legislature was to protect persons in their homes.
"Simply put, the state has not advanced any convincing argument as to how the murder committed after the burglary could be in the course of and in furtherance of the burglary, both of which are elements required by our statutes. 'If we can, we give legislation a construction to affect legislative intent … However, this is a criminal statute which must be strictly construed with doubt being resolved in favour of the accused'. Knapp v. State, 283 Ark. 346, 676 S.W. 2d 729 (1984). In strictly construing our statutes, as we must do, it is apparent that in order to constitute capital felony murder, the murder must be in the course of, and in furtherance of the burglary, which is not the case before us."