Law 083 assessment

LIMITED EDITION ISSUE / 04

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GROUP 4

GROUP 4 / APRIL 2022

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TABLE OF CONTENTS Know about the Elite Four

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Breaking news!

Man arrested again for threatening niece's life

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1st Element of Assault The mental state of the defendant

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2nd Element of Assault 08-09

The effect on the plaintiff

3rd Element of Assault 10-11

The capability to carry out the threat

4th Element of Assault 12-13

Conclusion 14

References

Bodily movement

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Nur Aimi Hafizah 2021628386

Muhammad Raid Haikal

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2021492926

Siti Nur Aina 202144931̀8

Nur Eizlyn Farhani 2021631112

BREAKING NEWS! MAN ARRESTED AGAIN FOR THREATENING HIS NIECE!!??

On 24 October 2021, a 22-year-old man from Ampang was arrested after threatening his 17-year-old niece with a knife while high on drugs at the victim’s home in Taman Tasik Tambahan. The police arrived and arrested the man even before he could do anything to his niece. According to a statement released by Ampang Jaya district police, this is the second time the man has been arrested for threatening to kill his niece.

The statement also stated that the man had been charged with the same crime and sentenced to three months in prison in August of this year.

ISSUE Whether the niece can take action against the man under the tort of assault

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ELEMENTS OF ASSAULT

TO ESTABLISH ASSAULT

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All four elements need to be fulfilled

1st Element of Assault The mental state of the defendant

Law It is important to know the intention of the defendant to tell whether the defendant will do his act or not. Intention can be determined by the words used by the defendant or any action that can lead to assault.

Case law R v Constanza [1997] Crim LR 576 The court held that there was an assault committed by the defendant even though he only addressed some offensive words to the plaintiff without using any physical action. This is because the victim has suffered a fear of immediate violence and anxiety as a result of the threatening language used by the defendant.

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1st Element of Assault The mental state of the defendant Application

The man had the intention to kill his niece because he threatened his niece with a knife.

Besides, he was also under the influence of drugs when he came to his niece’s house. So, it shows that he cannot control himself and he might stab his niece. Based on the case of R v Constanza, the defendant can be charged with assault since it proves that the action of the man to bring the knife and threaten his niece displayed the intention to kill. The plaintiff also might have suffered anxiety after being threatened by the man. All in all, it is clear that the case falls under assault.

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2nd Element of Assault

The effect on the plaintiff

Law There must be reasonable apprehension faced by the plaintiff that a force will be imposed against him. The objective test is a way to determine reasonable apprehension and that is if a reasonable man is put to the test, and faces the same situation as the plaintiff would feel fearful if a force will be inflicted against him?. If the answer is ‘Yes’ then this element is fulfilled.

R V St George (1840) 173 ER 921:

Case Law

In this case, The defendant which is St George has gotten into an argument with the victim, Mr. Durant. During the argument, the defendant took out his gun and pointed it at the victim, and the gun was not loaded. The defendant was then prosecuted under assault.

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2nd Element of Assault

The effect on the plaintiff

Application The victim faced reasonable apprehension as a force was inflicted against him because in this case, the 17-year-old niece was threatened with a knife by her uncle when she was home alone. Applying the case of R V St George, although the gun wasn’t loaded, it can still be considered an assault as the person can be affected by the action. Although the man was high and only threatened to kill his niece, If a reasonable man is put to the objective test made to see if the victim would feel anxious or fearful when the argument happened, the objective man would have said yes as no reasonable person would not feel fear when they are held at gunpoint. In this case, the niece would feel fearful when threatened with a knife. So, the second element of assault in this case which is the effect on the plaintiff is fulfilled.

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3rd Element of Assault Law

Capability to carry out the threat

This element is measured through the eyes of the reasonable plaintiff method. This method is carried out with a question, ‘would a reasonable man who is in the plaintiff’s shoes, feel reasonable fear that there is a threat of immediate force upon him? This element is fulfilled if the answer is ‘YES’.

Case Law

Stephen v. Myers [1830] 172 ER 735

In this case, the defendant (Myers) threatened to punch the plaintiff (Stephen), and the defendant advanced with clenched fists upon the plaintiff.

The defendant was stopped by a third party just before he could reach the plaintiff. The court held that assault was established as he was capable of carrying out the threat if it was not stopped by someone else

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3rd Element of Assault Capability to carry out the threat

Application

Applying the element of assault in this case, the 22-year-old man has the capability to carry out the threat. Using the reasonable plaintiff method in this case, any reasonable person would feel the threat coming upon them because the man who threatened his niece was high on drugs and was also holding up a knife. Generally, we all know that people who are high on drugs tend to act violently and would hurt people around them to get what they want. In addition, referring to the case of Stephen v. Myers the court held that assault was established even before the defendant can reach the plaintiff because of the intervention of a third party. In this case, assault is established because the man had threatened to kill his niece while holding up a knife until the police came and stopped the man. To sum up, everything that has been stated, it is clear that this case falls under assault.

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L

4TH ELEMENT OF ASSAULT

B O D I L Y M O V E M E N T

Law This element refers to a positive act in the sense that indicating the defendant will carry out his threat. It should correspond to the possibility of the plaintiff being subjected to unwanted force. Hence, bodily movement per se would not be sufficient.

C

Case Law Innes v Wylie [1844] 174 ER 800

In this case, the plaintiff tried to enter a hotel room in order to attend a society meeting. The defendant, mistakenly believing the plaintiff had been expelled from society for threatening behavior, directed a police officer to block his path. When the plaintiff attempted to push his way past the police officer, the officer pushed him back. The plaintiff filed a lawsuit against the defendant for instructing the police officer to assault him. The court held that there was no assault on the plaintiff as there was no positive act of obstruction from the police officer.

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4TH ELEMENT OF ASSAULT

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B O D I L Y M O V E M E N T

Application To apply this element of assault in this case, the 22-year-old man however had a positive act to carry out his threat toward his niece. Based on the case of Innes v Wylie, the police officer was entirely passive and simply obstructed the entrance of the plaintiff and there would be no assault. However, in this case, the 22-year-old man showed an action to kill his niece with a knife, not once but twice. Therefore, there is a bodily movement element and the case indeed falls under assault.

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CONCLUSION Looking back at the elements of assault, it is clear that the assault was established in this case because all of the elements are fulfilled which are the mental state of the defendant, the effect on the plaintiff, the capability to carry out the threat, and last but not least, bodily movement.

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REFERENCES

Man arrested again for threatening niece's life

R v. Constanza

Law of torts in Malaysia, Nochaya Talib

R v. St George

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