The offence of causing fear cannot be proved with one incident

The Court of Criminal Appeal, presided by Mr Justice David Scicluna held that the offence of causing fear of violence cannot be upheld if it is proved that there was just one incident. 

The prosecution have to prove that there existed a pattern of conduct by the accused. This was decided on 12 August, 2015 in Il-Pulizija –v- Andre Cassar.

Cassar was charged with seven offences, which were causing bodily harm to a person of his household, attempted grievous bodily harm, causing slight bodily harm, driving after consuming alcohol, causing fear of violence to the same person, stalking and as a public officer committed an offence.

A Magistrate’s Court in January of this year found Cassar guilty of four of the offences, these being causing bodily harm to a person of his household, causing slight bodily harm, causing fear of violence to the same person and, as a public officer, committed an offence. The appellant was not found guilty of the remaining offences and was fined €6,000 and had a protection order issued against him.

Both the defence and the prosecution filed an appeal on this judgement. The Attorney General held that Andre Cassar should have been found guilty also of driving after consuming alcohol. According to Article 15E of the Traffic Regulations Ordinance:

1) In order to determine whether a person has committed an offence under articles 15A and 15B(1) a Police officer may require such person –

(a) to provide a breath specimen or specimens for analysis by means of the approved device, according to regulations made under this Ordinance, and the result so obtained shall be admissible in evidence in any proceedings for an offence under articles 15A or

15B(1). The results of the analysis shall be presumed correct unless the contrary is proved; or

(b) to provide a specimen or specimens of blood and urine for laboratory analysis, which shall take place at an approved laboratory, according to regulations made under this Ordinance, and the opinion of the analyst in that laboratory and the results of the analysis shall be admissible in evidence in any proceedings for an offence under articles 15A or 15B(1). The results of the analysis shall be presumed correct unless the contrary is proved:

Provided that the Police may in addition to the specimens of breath require also a specimen of blood or two specimens of urine.

Mr Justice Scicluna held that although the Breath Alcohol Test Record was presented as evidence in court, this was not confirmed by the officers who had operated the breathalyser. When Lion Intoxilyzer 6000 is used there is need of two samples. When Lion Intoxilyzer 8000 is used one sample is sufficient. The Report did not mention which instrument was used. The Court turned down the AG’s appeal.

Cassar held in his appeal that there was no sufficient evidence for him to be found guilty of the offences he was found guilty of. With regard to causing fear of violence, Cassar submitted that what has to be proved is a course of conduct and not one particular incident. This was held in a previous decision Il-Pulizija –v- Raymond Parnis of 24 April, 2009.

He also quoted from the UK Protection from Harassment Act, 1997 which states: “A person whose course of conduct causes another to fear, on at least two occasions, that violence will be used against him is guilty of an offence if he knows or ought to know that his course of conduct will cause the other so to fear on each of those occasions.”

Blackstone’s Criminal Practice also states: How separate the two occasions must be remains to be seen. The nature of stalking, the activity which primarily created the need for the new offences, might mean that the occasions are likely to be on separate days, although it may be possible to differentiate activities on one day where they can be viewed as not being continuous. The further apart the incidents, the less likely it is that they will be regarded as a course of conduct… It was recognised, however that circumstances can be conceived ‘where incidents, as far apart as a year, could constitute a course of conduct’. The type of incidents would be those intended to occur on an annual event such as a religious festival or a birthday…”.

The courts are to examine the circumstances of the case, which may vary from one case to another. Cassar argued that he was found guilty of this offence merely on the basis that he caused slight injuries to the victim. He had driven a car towards her but stopped, but hit her and caused a slight injury. No evidence was produced to show that he had a generic intent to cause harm. 

The Court of Appeal pointed out that the charge issued against Cassar was for a specific date and did not make reference to any previous occasions and therefore, it was impossible for him to be found guilty of causing fear of violence under Article 215B of the Criminal Code.

On the other hand the evidence produced showed that Cassar had intended to cause an injury to the victim and the Magistrates’ Court was correct to find him guilty. 

Mr Justice Scicluna then held that Cassar was not guilty of causing fear and that the charge of causing slight bodily harm was absorbed in the first charge. The Court reduced the fine from €6,000 to €1,000 and confirmed the rest of the judgement.

Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates

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