LWZ114 Lecture Notes - Lecture 9: Plaintext
NON-FATAL OFFENCES AGAINST THE PERSON
CONSENT
Consent to common assault
❖ Wooley v Fitzgerald: Consent must be freely given and not procured by force or threats.
❖ Clarence: Fraud negates consent only if it relates to the nature of the act itself, or to the identity of the person who
does the act.
➢ *D had sex with wife (V) without telling her he had gonorrhoea.
➢ *V consented to having sex with D.
➢ V understood she was engaging in sexual intercourse & knew she was doing so with D → fraud did not vitiate
consent.
➢ Floodgates argument: If fraud about D’s disease negated consent, then seductions with false promises would
negate consent & be rape.
❖ Papadimitropoulos v R: Mistaken belief that boyfriend is a husband, does not destroy consent to sexual intercourse.
Consent to assault occasioning actual bodily harm (s40)
General rule
❖ R v Brown: A victim cannot consent to the infliction of harm at or above the level of actual bodily harm, unless it falls
within an exception.
➢ *Ds willingly participated in sadomasochistic sexual acts of violence.
➢ Ds’ acts did not fall within a pre-existing exception.
➢ Ds’ acts could potentially cause serious injury + danger of corrupting young men → Not in public interest to
create an exception applying to sadomasochistic activities.
➢ Therefore, the consent was ineffective.
➢ Lord Mustill (dissenting):
▪ No general theory of consensual violence, only public policy.
▪ Ds’ acts were private + Ds should be allowed individual freedom → criminal law should not be concerned
with the acts.
Exceptions
❖ Personal Adornment
➢ R v Wilson
▪ *D branded initials on wife’s (V’s) buttocks with a hot knife.
▪ No logical difference between D’s act & tattooing → like tattooing, D’s branding was lawful.
▪ Also, D had no aggressive intent & it was not in the public interest that consensual activity between husband
and wife, in the privacy of their home, should be a matter of criminal prosecution → lawful.
[note: this is inconsistent with R v Brown]
❖ Surgery
➢ Marion’s case: Surgery is lawful where performed with patient’s consent.
❖ Violent sports
➢ General rule: If D is playing a violent but socially approved & lawful sport within the rules of the game, V is
assumed to lawfully agree to the infliction of injury by reason of participation.
➢ R v Coney: Consent cannot be given to blows likely to produce a breach of the peace.
➢ AG’s Reference (No 6 of 1980): Not in public interest to recognise consent to a street fight, because there was no
‘good reason’ for the fight.
➢ Pallante v Stadium (McInerny J) [SC-VIC]: If D applied force in a spirit of anger with the intention to inflict
substantial bodily harm, so as to disable the opponent, it may be assault.
➢ Giumelli v Johnston (weak authority – civil action): Players in football match do not consent to violence applied
in contravention of the rules by an opposing player who intends to cause bodily harm.
➢ McAvaney v Quigley
▪ Consent is not confined to harm within the rules.
▪ Players consent to violence in breaches of the rules within reasonable limits.
▪ *During a football match, D rushed in & struck a heavy blow to V’s head which caused broken jaw.
▪ *D wrongly believed he needed to protect a fellow player from assault.
▪ Held – the breach of rules was reasonable.
▪ [Use expert evidence to distinguish between reasonable breach of rules & completely outside rules.]
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Document Summary
Wooley v fitzgerald: consent must be freely given and not procured by force or threats. Clarence: fraud negates consent only if it relates to the nature of the act itself, or to the identity of the person who does the act. *d had sex with wife (v) without telling her he had gonorrhoea. *v consented to having sex with d. V understood she was engaging in sexual intercourse & knew she was doing so with d fraud did not vitiate consent. Floodgates argument: if fraud about d"s disease negated consent, then seductions with false promises would negate consent & be rape. Papadimitropoulos v r: mistaken belief that boyfriend is a husband, does not destroy consent to sexual intercourse. Consent to assault occasioning actual bodily harm (s40) R v brown: a victim cannot consent to the infliction of harm at or above the level of actual bodily harm, unless it falls within an exception.
