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INTERESTING CONTENT TO ENLIGHTEN YOU .... Catching up with your favourite author AUTHOR'S NOTE What's for this month's edition ? INTRODUCTION TO LAW OF TORT : WHAT IS AN ASSAULT ? UNDECIDED CASE : MAN ARRESTED AFTER THREATENING TEEN WITH A GUN BREAKDOWN OF UNDECIDED CASE : 1) ISSUE 2) LAW & RELEVANT CASE LAW 3) APPLICATION 4) CONCLUSION REFERENCES 2
AUTHORS' NOTE 3 Thank you to Hanbada law firm for giving this opportunity to me to share something knowledgeable in this magazine . Not to forget , my team that has been hustling together with me to make this magazine published successfully , thank you to you guys .I hope that the readers could gain new knowledge from this month's edition regarding law of tort : assault . -erwynaNo words to describe how grateful I am to finally finish this magazine. Big thanks to all of my groupmates that help me a lot in this assignment by giving excellent ideas and insights made it much easier to proceed in the right direction and complete the project successfully. I hope this magazine will give countless benefits to all of the readers. -syahiraI'm delighted to be able to provide the best legal content in this magazine. It is my commitment, as well as that of the law magazine team, to provide the most recent and substantive content because we believe our readers deserve the best! - sara I want to express my gratitude for giving me the opportunity to make this beautiful magazine. Working with such engaged coworkers has been such a blessing. Thank you as well to Sir Safri, our dearest lecturer. -qaisara-
On 23th May 2023, a man, Kyiland Kimbrough was found pointing a gun at the teenager on the 1100 block of North Main Street in Evansville around 5:55 pm. Kimbrough later was arrested and is charged with intimidation with a deadly weapon and pointing a loaded firearm. UNDECIDED CASE 4 ASSAULT Assault is defined as an intentional and direct act of the defendant which causes the plaintiff reasonable apprehension of the immediate infliction of a force onto his person . No physical injury is required, but the actor must have intended to cause a harmful or offensive contact with the victim and the victim must have thereby been put in immediate apprehension of such a contact.
TRESPASS TO PERSON 5 The ISSUE in the undecided case is whether the action of pointing a gun at a teenager done by the man is considered to be an assault . Threatening and Pointing a Gun What is The Issue?
THE RELEVANT LAW There are four elements to determine whether an assault is committed or not . The first element is the mental state of the defendant which means that the defendant must have intention to do his act where in this case an intention is essential . Referring to the case of Tuberville v Savage (1669) , Savage had made some insulting comments to Tuberville and as a response to that , Tuberville grabbed the handle of his sword and said “If it wasn’t because of the absence of judge in town , I would not have tolerate with you” . Savage then responded with force , causing Tuberville to lose his eye . As a result , Tuberville brought an action for assault , battery and wounding to which Savage pleaded provocation to rebut Tuberville’s claim . It was held that Tuberville did not express any intention to harm Savage as he stated clearly that he was not going to harm Savage because the judge was out of town at that moment . Hence , there was no assault in this case . 6 The second element of assault is the effect on the plaintiff . The plaintiff must feel reasonable apprehension that a force will be inflicted upon him . To determine whether an apprehension is reasonable or not , an objective test will be carried out . In the objective test , a question is asked which is “Would a reasonable man faced with the same situation that the plaintiff was in , feel apprehensive that a force would be inflicted upon him ?” The answer of yes only will determine that this element is being fulfilled . According to the case of R v St. George (1840) , pointing an unloaded gun at a person shall be constituted as an assault .
7 Another element is the capability to carry out the threat where this element is measured through the eyes of the reasonable plaintiff . The question for the objective test carried out is “Would a reasonable man who is in the plaintiff’s position , feel reasonable fear that there is a threat of immediate force upon him ?” The element will only be fulfilled if the answer to the objective test is a yes . There must be no huge gap between the threat and the possible execution of the threat . For example , in the case of Stephen v Myers (1830) , the defendant threatened to hit the plaintiff and he proceeded with a clenched fist upon the plaintiff . A third party came and stopped him before he could reach the plaintiff and execute the threat . It was held that an assault was established as there was a capability to carry out his threat , if the third party did not come and stopped him a few seconds before he hit the plaintiff . The last element of an assault is bodily movement which refers to a positive act in the circumstances that indicates that the defendant will carry out his threat . The movement must correspond with the possible infliction of unwanted force on the plaintiff . Hence , only bodily movement would not be sufficient enough . As an example , referring to the case of Innes v Wylie (1844) , a policeman prevented the plaintiff from entering a room where his action was under an instruction . It was held that the policeman was entirely passive and simply obstructed the entrance of the plaintiff , hence there was no assault as there was no positive act of obstruction from the policeman .
The Relevant Law and The Undecided Case How to Apply? First Element: The Mental State of the Defendant In this case, the Kimbrough (the attested) had threatened a teenager by pointing a loaded gun on him. According to the case of Tuberville v. Savage (1669), the Court decided that assault had not been committed since Tuberville asserted that under the given circumstances he had no intention to harm Savage. Based on the case, to constitute an assault, there must be either an act or intention. Back to the undecided case, Kimbrough had done an act by pointing a gun to the teenager. Furthermore, the fact that the gun is loaded shows that Kimbrough had an intention to cause injury to the teenager. Hence, Kimbrough had fulfilled the first element to establish an assault. Second Element: The Effect on the Plaintiff In order to determine a reasonable apprehension that a force will be inflicted upon him, the objective test must be carried out. When a reasonable man had a gun pointed at him, there is no doubt that he would feel apprehensive that a force would be inflicted on him. Moreover, according to the case of R v. St George (1840), an assault is established when pointing an unloaded gun at a person. Kimbrough had fulfilled this element because the reasonable apprehension was successfully determined by the objective test. Not only that, if Kimbrough had pointed an unloaded gun to the teenager would constitute an assault, let alone if he pointed a loaded gun. 8 Third Element: Capability To Carry Out The Threat In order to measure this element, it should be determined by the eyes of the plaintiff. The test that should be carried out to determine this element is the objective test. In the case of Kimbrough, the teenager has to go through the question of whether the teenager feels reasonable fear that there is a threat of immediate force upon the teenager. This requirement can only be fulfilled if only the teenager’s answer is ‘YES’. In the case of Stephen v Myers (1930), the defendant threatened to hit the plaintiff and he advanced with a clenched fist upon the plaintiff. The assault was established as there was a capability for him to carry out the threat if he was not stopped by the 3rd party. Kimbrough on the other hand was threatening a teenager using a gun which scared the teenager and he had the capability to carry out his threat to the teenager which led him to fulfil this requirement as he pointed a loaded firearm.
Fourth Element: Bodily Movement In this case, Kimbrough was pointing a loaded gun at a teenager which indicates that he will carry out his threat. The movement of the arrested pointing a gun towards the teenager corresponds with the probable infliction of unwanted force onto the teenager. In the case of Innes v Wylie (1844), there was no assault on the plaintiff as there was no positive act of obstruction from the policeman while Kimbrough pointing a gun without reason at the teenager is considered as an assault as there is a bodily movement from him. 9 Another case that could be an example to apply the issue of this case is the case of Abc & Anor v JKL where The plaintiff and defendant, who were married, were unfortunately unable to conceive throughout the years, even after undergoing two in vitro fertilisation procedures (IVF). Both of the parties then decided to opt to adopt and have successfully adopted a baby boy. The said child was born out of marriage by a Malaysian Christian mother. The mother confirmed the statutory declaration approving the adoption and stated that she was clueless of the said child father's whereabouts. With the defendant's sudden entry into their lives, the plaintiff's peaceful living with their new adopted infant son reportedly turned chaotic. They asserted that the defendant's actions caused the plaintiff severe anxiety, fear, and suffering due to the possibility that he would take the child at any time. Next, the defendant had openly acknowledged to a third party that he would abduct the children and leave the country if he located the child and has demonstrated that he is a volatile and unstable individual. Moreover, the defendant claimed that he was the biological father to the said child but appears to have withdrawn his request to intervene in the court's adoption proceedings with the freedom to file afresh. Due to this, the plaintiffs live in genuine fear that the defendant is going to carry through on his threats because he has demonstrated no respect or fear for the law. It was held that there are materials for consideration on whether the defendant had induced the plaintiffs to have fears that the said child would be abducted or subjected to public humiliation and contempt, all of which would ordinarily cause the parents of the said child to experience severe mental distress. In addition, in the case of Abc & Anor v JKL, the defendant's actions had caused the plaintiff severe anxiety, fear, and suffering due to the possibility that he would take the child at any time which indicates that the defendant had committed an assault. The plaintiffs live in genuine fear that the defendant is going to carry through on his threats because he has demonstrated no respect or fear for the law. To relate with the case of Kimbrough, the action of him pointing a loaded gun towards a teenager had caused the plaintiff to suffer from fear and trauma. The teenager also will eventually live in genuine fear if the defendant was not arrested.
CONCLUSION In conclusion, the act of pointing a gun at a teenager is considered assault since it has fulfilled all the requirements of assault which is the mental state of the defendant, the effect on the plaintiff, capability to carry out the threat and bodily movement. REFERENCES Abc and Anor v JKL (2020) 11 MLJ 402. EPD: Man arrested after threatening teen with gun. (2023, May 1). 14 News. https://www.14news.com/2023/05/01/epd-man-arrested-after-threatening-teenwith-gun/ Nurulhasni Shaari @ Mat Saman, Namirah Mohd Akahsah, Mohd Safri Mohamed Na’aim, Siti Marina Amit, Jusniza Abdul Jamal, & Farhah Abdullah. (2022). Introduction to the law of contract, torts and crimes. Centre of Foundation Studies, Universiti Teknologi MARA, Cawangan Selangor Kampus Dengkil. Legal Information Institute. (n.d.). Assault. https://www.law.cornell.edu/wex/assault 10