Kuwait Court of Cassation principle number 83

Summary: - Premeditation. Its nature. Article 159 of the Penal Code. The longer the time between the motive for killing and its occurrence. Presumption of the circumstances of premeditation. - Lying in wait means the perpetrator waiting for his victim in a place he considers suitable for carrying out the act by surprise. - Inference of premeditation and lying in wait. A matter of fact. Example. Rule: Whereas premeditation, as defined by Article 151 of the Penal Code, is the determination to commit the act sufficiently in advance of its execution to allow the perpetrator to deliberate calmly. It is an aggravating circumstance in the offence of intentional killing and is established by preparing the means of the offence and devising a plan for its execution away from an outburst of emotion, which entails calmness and deliberation before its commission, rather than its being the product of the first impulse in a soul seething with disturbance and carried away by anger until its possessor lost his composure. The longer the time between its motive and its occurrence, the more valid the presumption of its existence. Lying in wait—as defined by that Article—is the perpetrator waiting for his victim in a place he considers suitable for carrying out the act by surprise. Examination of whether the two circumstances of premeditation and lying in wait exist lies within the discretion of the trial judge, who infers them from the circumstances and elements of the case, so long as the implications of those circumstances and elements are not rationally incompatible with that inference. That being so, the challenged judgment explained the existence of the two circumstances of premeditation and lying in wait by stating: "The accused stated expressly in his admission during the Public Prosecution investigations that there had been previous disputes between him and the victim, and that those disputes continued for three months preceding the day on which he committed the incident; that he prepared the firearm used in committing the incident and the ammunition used in that weapon; that he then went on the day of the incident to the victim's home and waited for a period of time until he arrived; and that as soon as he saw him getting out of his car, he approached him and fired a shot from the previously prepared weapon, striking him in a vital part of his body and leaving him to bleed from that injury until he died as a result of the crime he committed. The court, in the exercise of its authority to assess the facts and evidence of the case, is satisfied with that admission and infers from it that a mental state existed in the accused, namely his decision to kill the victim and get rid of him because of the disputes existing between them before he committed the incident. This was accompanied by his preparation of the means of the offence (a shotgun) and devising a plan for its execution away from an outburst of emotion, which entails calmness and deliberation before committing the offence. He prepared the weapon he kept and prepared the ammunition used in that weapon before committing the incident, as expressly stated in his admission during the Public Prosecution investigations. This was, in the court's assessment, a sufficient period for the accused to review his decision and contemplate the consequences of his deed, perhaps returning to his senses. However, he preferred to proceed with his deed by heading towards the victim's home and waiting for his arrival in his car. As soon as the victim arrived at his home and got out of his car, he approached him, directed the shot at him, and inflicted the injury that took his life. Furthermore, the accused, being an officer in the Amiri Guard, knew the nature of the weapon he carried, what the resulting injury could cause, and the location of its occurrence in his body. The court therefore concludes that the accused had the opportunity to control his emotions and that a period of time elapsed separating his thinking about the offence and his preparation for it, during which he could assess the problem in terms of its cause and remedy, examine the matter calmly, and carefully weigh the consequences in a manner permitting him to choose between proceeding to kill the victim and abandoning his criminal plan in search of another remedy for the problem. However, he preferred to carry out the killing, thereby establishing, together with the surrounding circumstances set out by the court, the two circumstances of premeditation and lying in wait, in the manner regarded by the law as an aggravating circumstance of the offence of killing." What the challenged judgment set out above establishes the two circumstances of premeditation and lying in wait as legally defined and includes a response to the appellant's defence in this regard. Accordingly, his criticism of the judgment in this respect is unsound.