Aggravated assault trial. Accused and his common law partner were engaged in an argument. The couple’s young children were laying in bed in the same room. Accused threw a DVD at the complainant, with the intent of hitting her in the leg. As the DVD was thrown, one of the children sat up, and was unexpectedly struck by the DVD in the eye.
Held: Convicted of included offence of assault.
Deakin,  MJ No 8 (MBCA) followed. Doctrine of transferred intent applied. “Described as a legal fiction, it is the attachment of the mens rea in relation to the intended victim to the actus reus which unintentionally occurred to another”. To convict of aggravated assault, Crown must prove that a reasonable person would foresee a risk of bodily harm. The throwing of a DVD at the lower half of the body of an adult wearing pants at the time, was “unlikely to cause bodily harm … particularly after giving the benefit of the doubt to the Accused”.
D. Anderson – Defence Counsel