Court held assault on police in duty is objective; intoxication does not negate intent or defense.

[*722] 1972 July 13

(PIKIS, D.J.)

IN THE DISTRICT COURT OP FAMAGUSTA

Police,

v.

Janne Sundelin,

Accused,

(Criminal Case No. 5674/72)

Criminal Law - Police Officer - Assault on in execution of his duty - Section 244(b) of the Criminal Code Cap.154 - Elements of the offence - Whether specific intent required - And whether defence of intoxication available - Test whether a police officer is acting in execution of his duty on objective one – Accused seeking to hit police officer and pushing another constable to the ground - Offence of assault committed.

Assault - Police officer - See under "Criminal Law".

Police Officer - Assault - See under "Criminal Law".

Police Sergeant P. Ioannides, for the Prosecution accused present.

JUDGMENT

The following judgment was delivered by: -

PIKIS. D.J.: The accused pleaded not guilty [*723] to two counts of assaulting a Police Officer and a Police Constable in the execution of their duty and a third count of escaping from the hounds of lawful custody.

The case for the prosecution rests on the unchallenged testimony of P.W.1, the officer in charge of the Reliefs Branch of Famagusta police whose evidence is briefly to this effect

In the early hours of the 12.7.1972, at 1.25 a.m. P.W.1 accompanied by other police constables, visited a block of flats at 29 Hippocrates Street Famagusta. Before entering he found the occupants of the premises in a state of unrest standing on their balconies, evidently because of the uproar caused by a group of males and females, some ten of them, on the third floor; accused was one of them. The team of policemen, headed by P.W.1, proceeded to the third floor where they noticed the accused and some nine companions of his, shouting in the corridor. They were advised to break up the party and keep silent which request was heeded by all, except the accused. The accused was then cautioned by P.W.1 to calm down and be silent, whereupon accused advanced towards this police officer who was then in uniform, as all other members of the police team who accompanied him, and attempted to kick him unsuccessfully as P.W.1 moved aside and thereby avoided suffering the blow that was directed at him. On the instructions of P.W.1 P.C. Marios Spyrou arrested the accused, whereupon the accused pushed this constable to the ground and ran away. The police searched for him and found him in the yard of an adjacent house, 15 minutes later. Thereafter the accused [*723] was shouting in the street and. causing an uproar.Accused was apparently overpowered and put in a police car that conveyed him to the hospital, as accused before the arrival of the police had injuries on him. Apparently accused continued misbehaving until locked up in a police cell where he was attended by a doctor. P.W.1. sensed from the very beginning of his meeting with the accused that accused was drunk, a charge to which accused has already pleaded guilty as well as a charge of disturbance.

As already indicated, the accused did not challenge the evidence of P.W.1; when called upon in his defence, he elected to say nothing.

In the light of the evidence before me, I accept the testimony of P.W.1 and find that: -

(a) Accused sought to hit S/Insp. Procopis Georghiou, at a time when this officer was uniformed and therefore, his identity was apparent and at a time when he was acting in the execution of his duty.

(b) The accused pushed to the ground P.O. Spyrou, who was again in uniform, and acting in the execution of his duty, who in consequence of the blow fell to the ground.

(c) After accused had been arrested, he escaped from the police custody.

The crime of assaulting a Police officer in the execution of his duty involves three elements: There must be (a) an assault; (b) the assault must be directed against a police constable; and (c) the police constable must at [*725] the time of suffering the assault he acting in the execution of his duty.

In the case of Fagan v. Metropolitan Police Commissioner, (1968) 3 All E.R. p. 442, James J. giving the first judgment of the Divisional Court defines assault thus: -

"An assault is any act which intentionally - or possibly recklessly, causes another to apprehends immediate and unlawful personal violence."

In R. v. Mason. (1969) 53 Crim. App. R.p.12, Veale J. after a thorough review of the authorities, stresses that before a finding of assault is made, there must be a hostile act. One may say that the requirement of a hostile act is implicit in the definition of James J. where he stresses that the conduct must be intentional evidently in contradistinction to negligent. Once an assault is established, the prosecution need not, on the authorities as they stand, and in the light of the definition of the crime set out in section 2144(b) of Cap. 154 go further and establish that at the time of the assault the culprit was aware of the identity of the person assaulted. There is a long line of authority on this aspect of the law to which I need not refer in detail except cite some of the cases on the subject.

Forbes and Webb 10 Cox 362

Maxwell and Clanchy (1909) 2 Cr. App. R.26

Mark 1961 Crim. L. R. 173

Kenlin v. Gardiner (1967) 2.Q.B.

510 [*756]

The test whether a police constable is acting in execution of his duty is objective in the sense that so long as the police constable isacting in the execution of his duty, he will come within the compass of section 244(b) irrespective of whether the culprit appreciates that the police officer is then acting in the execution of his duty. (See the case of Fennell (1971) 1 Q. B. 428).

In the light of my findings, an assault was committed on the two policemen named in the charge, at a time when these two policemen were uniformed and therefore, their identity was self-evident and at a time when both were acting in the execution of their duty. The element of intentional conduct in the definition of assault is best understood by contrasting intentional conduct with involuntary or negligent acts. Conduct is intentional where the act is deliberate as the acts of accused were in this case.

Even though the point was not specifically raised, I feel it my duty to consider the implications of the fact that accused was at the material time drunk and whether this negatives any element of the crimes he is accused to have committed in accordance with section 13(3) of Cap.154 and in particular whether the fact that accused was intoxicated is inconsistent with the formation of a specificintent where a specific intent is an ingredient of the offence he is charged to have committed.

Firstly, on the evidence-before me, the extent of the intoxication of the accused is not known beyond the fact that he was drunk at the time and that the elements [*727] of section 94(1) Cap. 154 were present. The behaviour of the accused soon after his arrest and his attempt to hide himself from the police, does on the other hand betray an awareness of what was going on. It is evident from the definition of "assault" that no specific intent is required and that so long as the conduct is intentional and causes thereafter another person to apprehend immediate and unlawful personal Violence, unlawful here meaning without any justification in law, the crime is committed. Therefore, no specific intent is required in order to establish the crime of assault and as I have already indicated above, so long as there is an assault, it matters not whether the accused appreciated at the time that he was hitting a police constable acting in the execution of his duty. Despite the above, and even if it was necessary under the Law to prove that the accused appreciated at the time that he was hitting a police constable, I would still, on the evidence before me, find that the defence in section 13(3) of Cap. 15U, is of no avail to the accused, in the light of the facts before me.

Concerning the third count, viz., escape from lawful custody, I find as a fact that accused was in lawful custody, considering his assault on P.W.1, and further find that whilst thus in custody, he escaped from the bounds of lawful custody.

Accused found guilty

as charged.