Sie sind auf Seite 1von 9

QUESTION:

What is the charge to be imposed against Haris?


Haris should be charged under s352 for assaulting criminal force to
any person which is defined in s351.

Elements that need to be proven are:
i. AR- Any gesture or preparation
ii. MR- intention or knowledge that apprehension is likely to be
caused
iii. RESULT- reasonable apprehension that the accused is about to
use criminal force
Issue: whether the combination of words and gestures
indicate that criminal force is about to be used?
Actus Reus : any gesture or preparation
What is meant by gesture?
Illustration (a) of s 351: shaking his fist
In Tuberville v savage:
the accused placed his hand on the hilt of his sword.
the court held that the act of placing his hand on the hilt of his
sword could be a sufficient gesture.
*The gesture indicates the use of force by using the sword.*


1
st
element : Actus Reus
Do mere words amount to assault?
Explanation of S351:
Mere words do not amount to an assault.
But, the words a person uses may give to his gestures or preparation
such a meaning that criminal force is about to be used.
Illustration (c): words are used to give meaning of the act of taking up
a stick as it will be used to beat Z.
______________________________________________
In this case, there are both gestures and words:-
(1) Gestures :Dancing
(2) Words :I am going to cut your body to small pieces so that I
can take you with me wherever I go
Application:

In the present case, words are used in the form of rapping and the accused
was dancing while rapping the words out. I am going to cut your body to
small pieces so that I can take you with me wherever I go.

The way the words were uttered and the act of dancing (Harris) did not in
any way indicate that criminal force (cut her into pieces) is going to be used.

The rapped words do not give to the meaning to the act of dancing that
criminal force is about to be used.

Conclusion:
AR is not fulfilled.

Issue: Whether Harris had the knowledge that he would cause
reasonable apprehension on Alina that the criminal force is about
to be used?
KNOWLEDGE
in this case, MR- knowledge that apprehension is likely to be caused

What type of knowledge? (reasonable man test)
Case: Roper v Taylors Central Garages (Exeter)Ltd
- Constructive knowledge is the knowledge where a person ought to
have known or knew.




2
nd
element: Mens Rea


CRIMINAL FORCE
Definition: Criminal force is defined in s350 and s349.
Reading these 2 provisions together, in this case, the applicable limbs
for criminal force is the change of motion as brings the substance into
contact with any parts of the body and such force is intended without
that person consent, intending to cause injury to the person to whom
the force is used.

In this case, the criminal force is the act of change of motion to bring
the knife into Alinas body to cut her body into pieces and thereby
caused injury-death.
Issue: Whether Harris had the knowledge that he would
cause reasonable apprehension on Alina that the
criminal force is about to be used?

Application:
Prior to their meeting at Muzik Record, Harris sent an email to Alina
saying that he want to cut her into pieces (criminal force) when he
met her.
He then turned up at the Muzik Record unarmed. It was crowded
with Alinas fans.
He then rapped out the words in the email and danced to the song.
Based on his actions and the circumstances, there could be no way
that he knows that his actions would cause reasonable apprehension
on Alina that he will cut Alina into pieces.
Conclusion:
MR is not established.

Issue: Whether the actions of Harris caused apprehension on Alina

Case: Datuk Seri S Sammy Vellu v S Nadarajah
The court held that without the existence of reasonable apprehension of
imminent criminal force, assault is no established.



3
rd
element: Result ( Apprehension)

Application:
In the present situation, a series of actions done by Harris from
emailing to rapping and dancing did not cause apprehension on Alina.
This can be shown through Alinas response. She first brushed it
aside when she received the email. When Harris turned up and
rapped the words out, she danced to the song.
There is no reasonable apprehension of imminent criminal force as
they were in public in the middle of the crowd. Harris did not do
anything that indicated (unarmed) that he was going to carry out
criminal force (cut her into pieces) .
Conclusion :
Third element is not fulfilled as there is no reasonable apprehension of
imminent criminal force.

Das könnte Ihnen auch gefallen