LAWS1016 Lecture Notes - Lecture 9: Actus Reus, No Offence, Common Assault
CLASS 9: Assault/Sexual offences
Consent
• Is consent a defence or an element of actus reus?
As a defence, there is still the assault – accused would have to bring evidence, and
prosecution has to disprove BYD
As a part of the actus reus, prosecution must prove this BYD – and this makes it NO
OFFENCE
• Policy reasons for allowing/disallowing people to consent to ABH
• Should NSW cases follow Brown?
• Q: In what circumstances will consent be an answer to an assault charge?
1. Common assault: consent in terms of day to day activities
2. Can consent be a defence to intentionally inflicted physical harm, i.e. to legitimate the
assault? See Brown
• Brown:
Facts: Homosexuals engaged in sado-masochistic sexual activity. All were
consenting. They were charged with a number of counts of unlawful and malicious
wounding and assault occasioning actual bodily harm.
History:
▪ Trial judge said that prosecution did not have to prove any lack of consent.
Convicted
▪ On appeal to Court of Appeal. Dismissed
▪ Now on appeal to House of Lords, to hear the matter on the basis that it
involved a point of law of general importance
Issue: Whether the consent of a victim is effective to prevent the commission of an
assault, or constitute a defence to the assault
Lord Templeton (majority):
▪ HIS STARTING POINT: not preparing to allow consent unless this sort of
behaviour already fits in a category where consent is allowed as a defence.
On the other hand, Mustill starts with analysing the case on an individual
basis
▪ Lawful activities where violence is intentionally inflicted: surgery, tattooing,
ear-piercing, violent sports
▪ Refers to Stephen J in Coney: regarding prize-fighting (boxing), injuries
given and received are injurious to the public, both against public interest and
health of the parciipants. But where there are cases that there is no exposing
to serious danger in the common course of things, consent may become a
defence, even when considerable force is used e.g. wrestling, football. IT IS
A QUESTION OF DEGREE
▪ Refers to Donovan where appellant beat a 17yo for sexual gratification with
her consent (whipping causing welts) : if the infliction of bodily harm is a
probable consequence, the act is unlawful and consent is not a defence
▪ Refers to Lord Lane CJ in Attorney-General’s Refernce (No 6 of 1980)
where ‘it is not in the public interest that people should try to cause, or should
cause, each other actual bodily harm for no good reason’
▪ Notes that attitudes towards homosexual activity have changed and
Parliamnet has accepted the practice
▪ Basically: But question of consent being extended to sado-masochistic
encounters is a consideration of policy and public interest
▪ Counsel for the appellant: every person should have a right to deal with their
body as they please → But Templeton noted prohibition of drug use, and
assisted suicide → for the community
▪ Assertion that sado-masochism is concerned with violence
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