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Justin Santiago, BAppSc (Hons), MBA, LLB (Hons) comes from a journalism, market research, intellectual property and strategic communications consulting background. Now based in Melbourne he spends his time advising businesses on how to communicate to their customers as well as writing on various subjects of interest in this blog.

Friday, January 30, 2009

OAPA, Assault, Battery, Criminal Damage -Sample Answer

UOL External Paper 2003 Zone A Question 1

Adam who had a long history of mental illness, had just lost his job and was feeling very depressed. He went to his local bar and ordered a glass of orange juice. He was clearly very agitated. Bill, the barman, seeking to calm Adam, secretly laced his vodka with a drug. In most cases this drug would have sedated Adam but Adam proved allergic to the drug and he went berserk. He smashed a glass before throwing it at Bill – though it missed and knocked a lamp which caused a small fire in the storeroom. He called Clarissa a whore and punched her.

Advise the parties of their criminal liability.

Bill (B) putting a drug into Adam’s (A) orange juice

B could be held liable for a S.24 offence under the OAPA 1861 (maliciously administering a noxious thing, etc with intent to injure, aggrieve or annoy another person). The contentious issue here is whether the sedative drug would amount to a noxious thing and the fact that B had no intent to injure, aggrieve or annoy. In R v Marcus, noxious was broadly interpreted if it posed a danger to a person and in R v Cato
a substance is noxious if it is liable to cause injury in common use. It matters not that B’s intention was only to calm Adam as long as there was recklessness on B’s part i.e. a foreseeable risk of some harm and in this regard might be seen as an inchoate offence. B would probably not be liable for the more serious offence under S.23 which includes a further element so as to endanger life or inflict grievous bodily harm and is seen as a result oriented crime (A.Ashworth "Defining Criminal Offences without Harm"). The administering of the drug would extend to self administration if there was assistance – Kennedy (No 2) where D caused to be taken by V a noxious substance although it can be argued that the free and informed decision by D may break the chain of causation.

If B had administered the noxious substance with intent to have sex he could additionally be charged under S.61 of the Sexual Offences Act 2003. The intention would be to stupefy or overpower A so as to enable any person to engage in sexual activity that involves A.

A smashing the glass

A has committed an offence under S1(1) Criminal Damage Act 1971 causing damage intentionally or recklessly. The damage would clearly involve some expense for the barman to replace the glass (Roe v Kingerlee) but it is arguable if A could have formed the intention or was reckless in the subjective sense - R v Cunningham (R v G (and another) overulling the previous objective test in R v Caldwell for criminal damage cases. If Adam destroyed the glass with intent to endanger B’s life, he could be liable for a S1(2) offence – in addition to causing damage, endangering the life of another intentionally or recklessly. Additionally A could be liable for arson under S1(3) for destroying or damaging the store room by fire.

A throwing the glass at B

Since there is no touching there is no offence of battery (the infliction of unlawful personal violence on another intentionally or recklessly) nor is there an offence under S.47 of the OAPA 1861(assault occasioning actual bodily harm) committed. One could argue that there is an attempt to commit such an offence since Adam had the intention to apply force (R v Whybrow) and the act more was more than merely preparatory (R v Stonehouse). One could even argue that there was an attempt to commit a S.20 offence (wounding or inflicting grievous bodily harm) or a S.18 offence (wounding or causing grievous bodily harm with intent).

A calling Clarissa (C) a whore and punching her

Would amount to assault if there in an apprehension of immediate and unlawful personal violence and done intentionally or recklessly : Fagan v MPC. A’s words would amount to an assault if it is enough that C believes that violence would follow : R v Ireland and Burstow. There doesn’t have to be proof of any harm and fear is not an essential element : Faulkner v Talbot. It must be proved that A either intended to cause or was aware of a risk of causing C to apprehend immediate, unlawful personal violence : R v Venna.

Would amount to a battery if there was unlawful or non consensual touching intentionally or recklessly : R amount to sexual assault covering non consensual conduct contrary to S.14 and S.15 the Sexual Offences Act.

If there was actual bodily harm this could amount to a S.47 offence – assault occasioning actual bodily harm. The hurt or injury sustained must be calculated to interfere with the health or comfort of the victim : R v Miller. For a S. 47 the foresight required is the same as that required for common law battery and there is no requirement to show intention or recklessness in respect of any injury caused. The application of the principle of half mens rea makes it easier to establish a liability for a S.47 offence where the harm is greater than planned following R v Savage confirming R v Roberts. Actual bodily harm would include psychiatric injury : R v Chan Fook.

If the harm caused is serious : R v Saunders this could amount to a S.20 offence – maliciously wounding or inflicting grievous bodily harm. This would require evidence of wounding i.e. broken skin (R v Metherum). For a S.20 offence there must be some foresight of some harm although not necessarily the magnitude of harm : DPP v Parmenter confirming R v Mowatt. This catches situations where the defendant does not foresee the risk of GBH which happens. There need not be direct infliction of GBH it can be indirect : R v Martin. There need not be an application of force : R v Dica.

For A to be liable for a S.18 offence, it must be shown that A had the intention to wound or cause GBH. It must be shown that there was an ulterior intent and that GBH was a virtual certainty (R v Mandair). It must be proved that there was a causal link between A throwing the punch and the harm caused.

A’s defence


A could raise the defence of insanity. According to M’Naghten rules he would have to prove on the balance of probabilities that he had a defect of reason caused by a disease of the mind (Bratty v AG for Northern Ireland) which prompted him not to realize the nature and quality of his acts R v Coder or not to realise that it was wrong : R v Windle. For the defence to be successful, A must prove that his disease is an internal causes : R v Sullivan – defence completely unavailable to intoxicated defendants as the disease of the mind cannot be the result of an external factor. According to R v Rennie – drunkenness is not insanity. Also the law not only considers the state of mind (or lack of it) but also how it came about. The justification for this is to exclude defects of reason caused simply by brutish stupidity as well as to exclude dissociative states resulting from psychological blows : R v Rabey.

The difficulty here is determining whether the long history of mental illness manifests itself in insanity or whether whether he is merely depressed which as a result of losing his job – an external cause – which will not be relevant to the defence of insanity (R v Seers). Also any indication of a momentary lapse where A could reason would negate the defence : R v Clarke. Insanity is a general defence to all crimes (unable to form mens rea) and A will be found not guilty by reason of insanity and confined to a mental hospital at her majesty’s pleasure.

Adam may have a better chance if raising the defence of intoxication. Intoxication would impair his ability to form the mens rea. His vodka has been secretly laced with drugs. With regard to the alcohol A has voluntarily ingested it. The effect of intoxication on his state of mind was only relevant to crimes of specific intent as the defendant’s recklessness in taking the drugs that rendered his behaviour uncontrolled and unpredictable was in itself sufficient to substitute for the mens rea of the offence in crimes of basic intent : DPP v Majewski. A can therefore be liable for all the crimes mentioned except the S.18 offence which is a specific intent crime requiring intention.

If it cannot be proved that A has voluntarily ingested the alcohol by virtue of the mixture of drugs, than he can turn to the defence of involuntary intoxication where the consumption is not deliberate which would be a defence to both crimes of specific and basic intent provided that the defendant did not form the requisite mens rea for the offences involved : R v Kingston following R v Sheehan which stated that a drunken intent is still an intent. An intention formed whilst sober will not disappear as a result of drinking to gain Dutch courage : AG for Northern Ireland v Gallagher.

A may be able to claim a defence for voluntary intoxication by a drug. In R v Lipman it was held that the same principles that apply to intoxication by alcohol would apply to drugs for both voluntary and involuntary intoxication. R v Hardie suggests that drugs must be divided into two categories. Where it is common knowledge that a drug is liable to cause the taker to become aggressive or do dangerous and unpredictable things that drug is to be classed with alcohol. Where it is merely a soporific drug if taken voluntarily will result in involuntary intoxication provided the defendant was not reckless in taking the drug.

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