Consent defence
Monday, 12 December 2022 12:02
Burden of proof
Prosecution must prove that the v did no consent to harm
Type of defence
Complete defence- NO charge if successful
What does it mean ?
This is where the v has consented to be injured
Justification
The recognition that we are free to Independently choose out lives In any way we see fit
D must prove there was:
Step one : must be informed consent and that informed consent has to cover;
Step two: The nature and degree of harm caused to the victim
Step 1- informed consent
• Must be aware of what you are consenting to and the V has to be made fully aware of the full
facts in order to make and informed decision.
• Tabassum (2000)- D persuaded women to allow him to measure their breasts for the purpose of
preparing a database for sale to doctors. ONLY consented because though D had medical training.
Not by fraud
• Olugboja (1982)- V had been raped by Ds friend , she submitted to sexual intercourse by D.Not by
fear
• Dicta (2004)- D knew he was HIV+ and he had sex with 2 women. They both became infected.They
did not know of his HIV and said wold not had agreed to unprotected sex if they knew. NOT by
lack of knowledge
Step 2- Nature and degree of harm
• Everyday situations there is implied consent to minor touching
• Wilson v Pringle (1987)- Everyday jostling of everyday life not battery
• Minor harm (Assault + battery )- Courts will look at the nature and degree of harm.what is
accepted is usually very minor, unless activity is one which falls under the public policy exceptions
.
• R V Brown (1993)- A group of sadomasochistic homosexuals engaged in consensual sexual activity
such as whipping, branding , applying stinging nettles and inserting sharp objects into genitals.
This took place in private with consent of all people involved .Police saw a video of the men and
they were charged with S47 +20.
• Serious injury(S47,S20,S18)-Consent can be used if activity falls under public policy exceptions.
• Sport- Consent can be used as a defence during sports or games provided the player are acting
within the rules of the game
.
• R V Barney’s (2004)- D injured leg of another player during the match, even though the tackle was
Monday, 12 December 2022 12:02
Burden of proof
Prosecution must prove that the v did no consent to harm
Type of defence
Complete defence- NO charge if successful
What does it mean ?
This is where the v has consented to be injured
Justification
The recognition that we are free to Independently choose out lives In any way we see fit
D must prove there was:
Step one : must be informed consent and that informed consent has to cover;
Step two: The nature and degree of harm caused to the victim
Step 1- informed consent
• Must be aware of what you are consenting to and the V has to be made fully aware of the full
facts in order to make and informed decision.
• Tabassum (2000)- D persuaded women to allow him to measure their breasts for the purpose of
preparing a database for sale to doctors. ONLY consented because though D had medical training.
Not by fraud
• Olugboja (1982)- V had been raped by Ds friend , she submitted to sexual intercourse by D.Not by
fear
• Dicta (2004)- D knew he was HIV+ and he had sex with 2 women. They both became infected.They
did not know of his HIV and said wold not had agreed to unprotected sex if they knew. NOT by
lack of knowledge
Step 2- Nature and degree of harm
• Everyday situations there is implied consent to minor touching
• Wilson v Pringle (1987)- Everyday jostling of everyday life not battery
• Minor harm (Assault + battery )- Courts will look at the nature and degree of harm.what is
accepted is usually very minor, unless activity is one which falls under the public policy exceptions
.
• R V Brown (1993)- A group of sadomasochistic homosexuals engaged in consensual sexual activity
such as whipping, branding , applying stinging nettles and inserting sharp objects into genitals.
This took place in private with consent of all people involved .Police saw a video of the men and
they were charged with S47 +20.
• Serious injury(S47,S20,S18)-Consent can be used if activity falls under public policy exceptions.
• Sport- Consent can be used as a defence during sports or games provided the player are acting
within the rules of the game
.
• R V Barney’s (2004)- D injured leg of another player during the match, even though the tackle was
