LAW2599 Criminal Law

Introduction

In this case, Lynda might be charged with the offence of common assault (a non-fatal offence) on Derek, in accordance with section 61 of the Crimes Act 1900 (NSW). There must be proof beyond reasonable doubt that Lynda assaulted Derek. This analysis seeks to examine whether Lynda’s paranoia causing the apprehension of a battery to Derek presents the correct measure of mens rea and actus reus to determine her criminal liability.

Assault- Actus rea

The provocation of fear is the substance of assault. In order for the crime of common assault to be established, it has to be proved that; you caused the other person an apprehension of immediate and unlawful violence and that your actions were careless (R v Burstow; R v Ireland [1998]), deliberate (intended); and without legal justification; and that the other person did not consent.

Issue:  Does the conduct of the driver (Lynda) impose an apprehension of immediate and unlawful violence to Derek without his consent or any legal justification?

It is expressed that Derek fears for his safety after Lynda threatens to take him to goes team where he would be made to talk. Again, it has been told that Lynda is yelling at Derek claiming that he is lying not to be a terrorist. This conduct collectively inflicts fear upon Derek. He feels that his safety is compromised thus taking the action of jumping out of the car. Derek feels that there is a prompt unlawful; violence that would follow is he not to act quick. There is not a single fact showing that Derek had consented to the assault. In fact, it has been stated that he is uncomfortable. Neither can Lynda’s actions be legally justifiable from the facts inferred.

In the case of Zanker v Vartzokas (1988), the court held that the actions by the man to say that “I’m going to take you to my mate’s house. He will really fix you up, “constituted an assault because as long as she was going to be with the defendant in his car, a present fear of relatively immediate looming violence had been imparted in her mind and the fear sustained as she continued to be his prisoner towards where the battery (sexual violence) was to take place. In the same way, Lynda instilled fear of immediate imminent violence upon Derek and that continued in the car towards the location where he feared Lynda’s team was to ‘make him talk’.

Assault- Mens rea

The mens rea in assault is the intention to According to Boughey v The Queen (1986), while the element of hostile intent is not a necessity in proving unlawful assault, such hostile intent may convert to a necessary reason to show the conversion of life into assault by reason of the assailant precluding an excuse or justification of assistance or rescue.

Issue: Does Lynda portray a hostile intent towards Derek in order to inflict fear upon him?

To start with, Lynda yells at Derek and accuses him to be a terrorist and then goes on to threaten that there would be use of force to make him to talk. The driver, is adamant to take Derek to her team showing hostile intent. Lynda is not ready to let Derek go as she cannot listen to him and continues to drive the car at high speed (eliminating chances of rescue) such that Derek has to take the opportunity of the car slowing down in order to jump for safety.

Lynda’s Defence

Mental Illness (Insanity) and Automatism

For the defense of mental illness to stand, there must be proof that at the time of the act/ omission, the accused was mentally ill. That alone will preclude the accused person from criminal liability. Mental illness is a recognized defense under the Mental Health (Forensic Provisions) Act (1990), Pt 4 and S22. The rules in M’Naghten (1843) are to be used in the definition of mental illness. It is decided on balance of probabilities. In this scenario, Lynda was having insane delusions that Derek was a terrorist based on the past experience in the defence forces. Lynda did not have any control over her action. It is arguably correct to say that Lynda at the time of the commission, was deranged to know the nature of her actions or she did not know that whatever she was doing was actually wrong. She was acting based on an insane reflex. She was suffering from insane automatism.

Conclusion

Based on the evidence examined, Lynda may be excluded from the criminal liability of assault, because she is suffering from a mental illness causing the insane automatism. This defence when proved on a balance of probability gives the court no other option but acquittal.

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