LAWS1016 Lecture Notes - Lecture 9: Actus Reus, No Offence, Common Assault

42 views4 pages
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
find more resources at oneclass.com
find more resources at oneclass.com
Unlock document

This preview shows page 1 of the document.
Unlock all 4 pages and 3 million more documents.

Already have an account? Log in

Get access

Grade+20% off
$8 USD/m$10 USD/m
Billed $96 USD annually
Grade+
Homework Help
Study Guides
Textbook Solutions
Class Notes
Textbook Notes
Booster Class
40 Verified Answers
Class+
$8 USD/m
Billed $96 USD annually
Class+
Homework Help
Study Guides
Textbook Solutions
Class Notes
Textbook Notes
Booster Class
30 Verified Answers

Related Documents