Kuwait Court of Cassation principle number 184

Summary: - The offence of intentional murder requires only the commission of an act against the victim which, by its nature, leads to his death, with the intention of killing him, whether death resulted from a wound to a vital part or a wound to a non-vital part, provided that death is a direct result of the offence. - Causation in criminal matters. Its assessment is a question of fact. Disputing it before the Court of Cassation. Not permissible. The condition thereof. - Intent to kill is a concealed matter that cannot be perceived by outward senses. It is discerned through the circumstances surrounding the case and the signs and outward manifestations displayed by the perpetrator that reveal what he harbours within himself. Its inference is a question of fact. - Premeditation. A mental state existing within the perpetrator. Its inference, establishment and examination of its existence. Questions of fact. - Agreement to commit an offence. Through the unity of the parties’ intention to commit the agreed act. Inference of that internal intention is a question of fact. - A principal perpetrator of an offence together with another. Everyone possessing the intent to contribute or the intention to intervene therein. The condition thereof. - An example of a sound inference establishing the offence of intentional murder with premeditation. - Execution of the offence by one perpetrator in a manner differing from that originally intended, or his commission of another offence. Its effect. The liability of the remaining perpetrators for what actually occurred. Its condition: the manner of execution or the offence actually committed must be a probable consequence of the original execution plan for the offence originally intended to be committed. Article 51, Penal Code. Its implication: the objection that luring the victim was intended to harm him, not to kill him, is unavailing. An example. - Inference of the conditions required for the probable offence. Within the trial court’s authority. Rule: It is established that the offence of intentional murder provided for in Article 149 of the Penal Code, as amended by Law No. 85 of 1983, requires only the commission of an act against the victim which, by its nature, leads to his death, with the intention of killing him, whether death resulted from a wound to a vital part or a wound to a non-vital part, provided that death is a direct result of the offence. It is also established that causation in criminal matters is a question of fact whose assessment belongs exclusively to the trial judge; it may not be disputed before the Court of Cassation so long as the judgment rests upon grounds leading to its conclusion. The case law of this Court—the Court of Cassation—has settled that intent to kill is a concealed matter that cannot be perceived by outward senses, but is discerned through the circumstances surrounding the case and the signs and outward manifestations displayed by the perpetrator that reveal what he harbours within himself. Inferring this intention from the elements of the case is therefore entrusted to the trial judge within the limits of his discretionary authority. It is likewise established that premeditation is a mental state existing within the perpetrator, inferred from the facts and circumstances from which its presence is deduced. It is established by preparing the means of the offence and devising its execution plan away from a surge of emotion, requiring calm deliberation before committing it. Examining whether premeditation exists or not is, in turn, within the trial judge’s unrestricted discretion, to be inferred from the circumstances and elements of the case, provided that the implications of those circumstances and elements are not inconsistent with that inference. It is also established that agreement to commit an offence consists in the unity of the parties’ intention to commit the agreed act. This intention is an internal matter that does not fall within the senses and is not manifested by outward signs. To establish it, it is sufficient that the trial court believed it had occurred from the circumstances and surrounding particulars of the case, and that its belief was sound and justified by the facts established by the judgment. Article 47 of the Penal Code further provides that “The following shall be deemed perpetrators of an offence: (First( anyone who, alone or together with another, commits the act constituting the offence or performs any of the acts constituting it; (Second) anyone who performs assisting acts during the commission of the offence, or is present at or near the place where the offence is committed with the intention of overcoming any resistance or strengthening the perpetrator’s resolve.” The express wording and clear meaning of this provision show that, where an offence consists of several acts, whether by its nature or according to its execution plan, everyone possessing the intent to contribute or the intention to intervene is deemed a principal perpetrator together with others, provided that the offence occurred as a result of an agreement among them and that he contributed to some extent to its execution in one of the forms specified in the aforementioned Article, according to the plan devised to achieve a common purpose constituting the ultimate objective of the offence. Each of them would have intended the same purpose as his co-perpetrator in bringing about that particular offence, even if the offence was not completed by his act alone, but by the act of one or more of those who intervened therein together with him. That being so, the challenged judgment demonstrated the appellants’ intent to kill, stating: “The record establishes this intention on the part of all the accused through their luring the victim to a desert area, assaulting him by beating and kicking until he fell to the ground, and continuing their assault until they were satisfied that they had killed him, after which the first accused cut off the penis ‘with a razor blade’ and the second poured petrol over him and set his body on fire, conclusively establishing their intent to kill. In addition, there is the first accused’s confession, which the court accepts against him and against the other accused because it was made before the investigating authority, resulted from free will, was voluntary, accorded with all the facts in the record, and was explicit as to committing the offence, even if he subsequently retracted it.” The judgment also explained premeditation on the appellants’ part, relying upon what the record disclosed “of the accused preparing for the offence after thought and deliberation, devising a plan to dispose of the victim and dividing the roles among themselves: the first contacted him and lured him to a desert area devoid of passers-by; the second and third followed them in their car; the first prepared a ‘razor blade’; the second and third prepared a highly flammable substance (petrol); and all 3 assaulted him by beating and kicking until they were certain that they had killed him. The first accused then removed his lower garments and cut off his penis; the third brought the (petrol) from the car; and the second poured it over the victim and set him on fire, conclusively and certainly establishing the circumstance of premeditation on the part of all of them, as legally defined and as indicated by the circumstances and particulars of the offence as previously explained, and by witness testimony and technical evidence.” That being so, what the challenged judgment stated—in the foregoing context—as evidence of the appellants’ intent to kill from the circumstances and particulars it explained constitutes sound reasoning sufficient to establish that intent. Its inference of the circumstance of premeditation is also correct and likewise justifies the judgment’s conclusion that an agreement existed among the appellants to commit the offence charged against them and to punish them for it. This is not affected by the first appellant’s contention in his ground of challenge that he lured the victim with the intention of assaulting him by beating, not killing him. Even assuming that to be true, it is answered by Article (51) of the Penal Code, which provides that, if one perpetrator executes the offence in a manner differing from that originally intended, or commits an offence other than that originally intended, the remaining perpetrators shall be liable for what actually occurred whenever the manner of execution or the offence actually committed was a probable consequence of the original execution plan for the offence originally intended to be committed. Assessing this is a question of fact determined by the trial court without review. Accordingly, all the appellants’ contentions in this regard are unfounded.