The Provisions Relating to the Typical Form of an Offence and Their Application to Its Derivative Forms of Criminal Conduct

תקציר

The judgment of the Jerusalem District Court in Cohen v. The State of Israel presents a further opportunity to ponder the question set out above. The facts of the case are simple. The accused was charged in the Magistrates' Court with attempt to assault, an offence under secs. 250 and 29 of the Criminal Code Ordinance, 1936, in that "he unlawfully attempted to assault his wife without her consent and to cause her actual bodily harm." The only witness was the wife. The court convicted the accused of the offence under the said sections. On appeal to the District Court, the defence pleaded that the wife's evidence was invalid ab initio, since a wife is not competent to give evidence against her husband in a criminal trial in which the husband is accused of attempting to assault her, as distinct from the case where he is accused of a completed assault. 5 In answering this submission, the prosecution argued that although the appellant had been charged with an attempt to assault likely to cause serious bodily harm, yet along with this, if one ignores the bodily harm that might have been caused, the act committed by the accused could itself be regarded as a completed offence of "common assault" in accordance with sec. 249 taken in conjunction with sec. 248 of the Code.