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.
Towards A Goods and Services Tax Source: Economic and Political Weekly, Vol. 42, No. 49 (Dec. 8 - 14, 2007), Pp. 5-6 Published By: Economic and Political Weekly Accessed: 10-12-2016 13:27 UTC