Facts
Fagan is parking his car when a police officer sees a spot he’d like him to park in. While directing Fagan, Fagan runs over the officer's foot. The officer requested Fagan move the car, but Fagan refused and the car was shut off. Eventually Fagan started the car and moved off the officer's foot. As a result of this incident, Fagan was charged with assault and convicted.
Issue
- Did the prosecution prove that the facts amount to an assault?
- Do the mens rea and actus reus have to occur at the same time?
Decision
Appeal dismissed.
Reasons
The majority held that Fagan’s conduct could not be describes as a mere omission. At the outset there was an act constituting a battery, but it was not criminal because there was no element of intention. However, the action became criminal from the moment that the intention was formed (when he refused to move and shut off the engine) which followed directly from the continuing act. The action and intention did not have to occur at the same time, because the action was a continuing act that overlapped with the intention to create a crime. Therefore, as the act and intention were present in the offence, he must be found guilty.
The dissenting judge stated that the defendant cannot be found guilty because after the intention was formed he did nothing that could constitute the actus reus required for assault.
Ratio
The actus reus and mens rea do not need to occur at the same time; they can be superimposed on each other when there is a continuous act.