Crime XXXXXXXXVII – Assault IX

3.     The act must be unlawful or in order for an act to constitute an assault it (the act) must be unlawful.

In R v Larkin (1942) the accused was brandishing a razor intending to frighten his mistress’s lover in the presence of his mistress. His mistress, who was drunk at the time, stumbled while the accused was brandishing the razor and her throat was cut. The woman died as a result. The accused was tried and convicted for constructive manslaughter and the defense appealed.

It was held that the fact that there was an assault directed at his mistress’s lover i.e. to put him in fear of his life, was an unlawful act and it was sufficient to establish constructive manslaughter. The act need not be directed at the victim.

In R v Arobekieke (1988) the accused was chasing a victim and the latter ran into a train station and got on board a stationary train. The accused peered into the carriage doors in search of the victim and the victim, in fear, jumped out off the train and onto to the railway tracks and was subsequently electrocuted. The accused was arrested, charged and convicted of constructive manslaughter or unlawful act manslaughter. The accused appealed.

The appeal was allowed and the conviction was quashed. While the victim was in fear; the actions of the accused were not unlawful. Peering into the open doors of a stationary train may instill fear in the passengers but the act in itself is not unlawful.

It was further held that while the victim did apprehend an imminent danger or was in fear for his safety, the actions of the accused was not sufficient to constitute an assault.

·        It is also not an assault if the victim is acting in self defense for example when a would be victim is abusive towards his or her attacker to prevent some harm from coming to him or her and

·        When one party is abusive towards another to prevent a crime.

Copyright © 2019 by Dyarne Ward