Crime XXXXXXXX – Assault II
In
order to successfully convict for assault the prosecution must establish both
the mental element (mens rea) and the physical element (actus reus). The
mens rea for assault is the intention to put the victim in fear or cause him or
her to apprehend immediate and unlawful violence or recklessly causing the
victim to apprehend immediate and unlawful violence.
In
Fagan v MPC (1969) the defendant was in his car when he was approached by a
police officer who told him to move his vehicle. The defendant did so and
reversed his car onto the foot of the police officer. The police officer
somewhat forcefully told the defendant to move the car off his foot and the
defendant swore at the police officer, switched off the engine and refused to
do so. The defendant was tried and convicted for assault and appealed the decision.
The appeal was dismissed.
Assault
per se may not be sufficient to amount to a crime and it is a crime that often
goes hand in hand with battery.
Assault
is also a crime that cannot be committed by omission and in this instance the
court decided that the crime was not the fact that the defendant refused to
move his car but the fact that he reversed his car onto the police officer’s
foot and if we look at it from that perspective we can establish both the mens
rea (the intention to cause the victim to apprehend immediate and unlawful
violence) and the actus rues (the act of driving the car onto the police
officer’s foot).
As
per R v Savage (1991) and R v Parmenter (1991) the type of recklessness that
applies to non fatal offences (s.47 OAPA 1861) is subjective recklessness.
Copyright
© 2019 by Dyarne Ward
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