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Consent as a Common Law Defence to Non-Sexual Assaults: The Effect of Neal v The Queen
KENNETH J ARENSON[∗]
Abstract
The following discussion is an exposition of the recognised exceptions to the general rule that the law will not sanction the giving of a lawful consent to the application or threat of actual or grievous bodily harm. The discussion will also focus on a series of decisions in the UK and Australia, particularly Neal v The Queen, that have altered the law's approach to these exceptions and, more importantly, now permit a person to give an informed consent to the risk of contracting HIV or any other sexually transmitted diseases, provided there was no intention on the part of the accused to actually infect the other person. The underlying rationale for sanctioning an informed consent to such a risk is that consenting adults should be accorded the utmost autonomy in conducting their private affairs, and particularly so in the context of the choices they make regarding their private sexual activities. Whether one agrees or disagrees with the notion of allowing one to lawfully consent to such a risk, it raises an important question as to the current status of the general rule that one cannot generally give an informed consent to the application or threat of actual or grievous bodily harm. More succinctly stated, if the law is prepared to allow an informed consent to the risk of contracting a potentially fatal disease, then what remains of what had previously been a well-settled rule that, save for a few well-recognised exceptions, persons were generally prohibited from consenting to the application or threat of actual or grievous bodily harm?
It is often said, with marginal accuracy, that one who consents has no right to complain.[1] As in the case of many aspects of the law that are driven by considerations of public policy, so too are the circumstances under which the law will sanction the right of a person to lawfully consent to the application or threat[2] of actual or grievous bodily harm.[3] Thus, the common law has carefully circumscribed the situations in which this type of consent can be lawfully given, so much so that a general rule has evolved that subject to certain exceptions, any purported consent to such harm or the threat thereof is deemed to be null and void.[4] The discussion to follow will include an overview of the purpose and scope of the recognised exceptions to this rule that have evolved as part of the incremental development of the common law in both Australia and the UK.[5] The discussion will then focus on a series of decisions in both countries that have arguably served to confuse rather than clarify the parameters of these exceptions. The paper will conclude with an assessment of what the current state of the exceptions portends for what has become a rather controversial and unsettled area of the law. It is important to emphasize that this paper will not address the issue of consent in the context of sexual assaults in which the prosecution must prove the complainant’s lack of consent as part of the actus reus of the offence[6] or, alternatively, the putative offence conclusively presumes that the complainant is of insufficient age or mental capacity to lawfully consent to the prohibited sexual conduct. Further, this paper will not examine the status of consent as a defence to offences that do not require, as an essential element, the application or threat of actual or grievous bodily harm to another person or persons. Offences of this type include, for example, property offences or offences against habitation such as theft, robbery, criminal mischief, burglary and arson. Finally, any discussion of which statutory offences in either the UK or the various Australian jurisdictions would be the most appropriate for prosecuting those who are infected with sexually transmitted diseases and knowingly have unprotected sex with another, though certainly a worthy topic, is beyond the purpose and scope of this article.
In Pallante v Stadiums Pty Ltd,[7] the plaintiff brought an action in negligence against the organisers of a boxing contest in respect of injuries affecting his eyesight that were incurred in the course of a professional boxing event. The defendant argued that because the common law prohibits a person from giving lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal activity in which the blows and attempted blows amounted to assaults for which damages were not recoverable.[8] Though acknowledging the general common law rule that one cannot lawfully consent to the threat or infliction of actual bodily harm,[9] the Supreme Court of Victoria noted an exception to this rule in the case of lawful sporting events in which the accused conforms his or her conduct to the recognised rules of the game, the sport is not inherently dangerous to life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the participants’ predominant motive is not and does not become the of infliction of grievous bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive, then the lawful sporting event exception does not apply.[10]
The essence of Pallante, therefore, is that a sporting event becomes a lawful activity only when the foregoing requisites are satisfied. Thus, an important and unanswered question arising from Pallante is whether there is any sound reason in logic or principle to restrict the purview of this exception to activities that can fairly be described as sporting events? If the Pallante exception is founded on the precept that the law will countenance an ostensible consent to the threat or infliction of actual bodily harm sustained in the course of sporting events that are properly characterised as ‘lawful’ under the criteria enunciated in Pallante, then what is the justification for refusing to extend the exception to non-sporting event activities such as tattooing,[11] ear-piercing and the like which, in all other respects, appear to satisfy the criteria for this exception? Some degree of guidance on this issue may be gleaned from the House of Lord’s decision in R v Brown.[12]
In Brown,[13] the appellants were convicted of various assault crimes that arose out of consensual sadomasochistic sexual conduct[14] that involved the use of drugs and alcohol.[15] The charges included, inter alia, occasioning actual as well as grievous bodily harm.[16] In writing for the majority and dismissing the appeal, Lord Templeman opined that as a matter of common law doctrine, whether one can consent to the infliction of actual bodily harm (or greater) ultimately turns upon an ad hoc assessment of whether the activity in question is ‘lawful’.[17] His Lordship further opined that such an assessment is to be determined on the basis of whether the perceived social utility of the activity so outweighs its concomitant risks as to render it a socially acceptable form of conduct.[18] Applying this balancing approach, Lord Templeman reasoned that there is no apparent social utility in homosexual sadomasochism;[19] to the contrary, his Lordship opined that it amounts to nothing more than the deliberate infliction of violence for the sole purpose of indulging one’s lust for the cruel and the sadistic degradation of others which is both injurious and serendipitously dangerous.[20] Lord Templeman concluded, therefore, that it was contrary to public policy to permit consent to be interposed as a defence under such circumstances.[21]
Thus, the House of Lords’ decision in Brown, decided some 17 years subsequent to Pallante, is persuasive, albeit not binding authority in Australia, for the proposition that the reasoning of Pallante need not be confined to activities that are properly characterised as sporting events. If, for example, the criteria employed by Lord Templeman in Brown had been used in Pallante, is it fair to assume that the result would have been the same? If the ultimate question as to whether consent can be interposed as a defence is contingent upon whether the event is lawful, and the answer turns on whether the social utility of the event so outweighs its attendant risks that it is deemed a socially acceptable activity, it is all but certain that boxing would qualify as a lawful activity. If it were otherwise, a litany of other popular and lucrative sports such as rugby, Australian Rules Football, American football and ice hockey, for example, would all be unlawful activities in which an intentional or reckless touching of and/or placing another in apprehension of an imminent touching would amount to a common assault and other more serious assaults, depending upon the nature and consequences of the touching or threat and the jurisdiction in which they occurred.
Conversely, and save for the requirement that the activity in question be characterised as a sporting event, if the criteria used in Pallante had been applied in Brown, it is likely that the result would have been the same. The House of Lords was adamant in its finding that the defendants were motivated by a desire to inflict actual bodily harm in a cruel, degrading and sadistic fashion.[22] While this falls short of imputing a predominant motive to inflict grievous bodily harm, it is noteworthy that Lord Templeman characterised the defendants’ conduct as both ‘injurious’ and ‘unpredictably dangerous’.[23] This is reminiscent of the Pallante reference to conduct that is ‘seriously dangerous to life and limb’[24] which is further buttressed by his Lordship’s observation that the homosexual sadomasochistic activities involved persons who were under the influence of drugs and alcohol.[25]
While it is questionable as to whether all of the Pallante criteria were satisfied in Brown, in particular the lack of a primary motive to inflict grievous bodily harm and that the activity in question must not be inherently dangerous to life and limb, Lord Templeman’s poignant description of the motives and conduct of the defendants is strongly indicative of that conclusion. Thus, there appears to be no sound justification for confining the Pallante exception to mere sporting events. Indeed, more recent English and Australian authority not only militates strongly in favour of this view, but also the approach taken in Brown rather than the more specific criteria applied in Pallante for determining whether the law will countenance the notion of lawful consent to the threat or infliction of actual or even grievous bodily harm. Before examining that authority, however, attention will first be directed to an additional recognised exception to the general rule that one cannot consent to the application or threat of actual or grievous bodily harm as well as their underlying policy considerations.
Medical procedures often result in actual or grievous bodily harm, depending on the nature the procedure involved. It is commonplace for medical doctors who are general practitioners to administer extremely painful injections or perform other invasive procedures in treating their patients. Cardiac surgeons who perform open-heart surgery, for example, are required to perform extensive dissection of the skin, muscle and tendons in order to even reach the heart and coronary arteries that require replacement. In each of these examples, it is apparent that actual and grievous bodily harm has been inflicted on the patients by the general practitioner and cardiac surgeon respectively. Yet the law allows the patients to give lawful informed consent to medical procedures that result in either degree of harm, provided the procedures are conducted for legitimate medical purposes by qualified persons and according to standards that are regarded as medically acceptable within the relevant segment of the medical community.[26] Though this exception is often referred to as one involving surgical procedures,[27] it has been sensibly construed as extending to procedures performed by health care professionals other than merely surgeons such as general practitioners, osteopaths, acupuncturists, chiropractors, dentists and nurses.[28]
The writer’s view is that there is an underlying public policy common to each of the exceptions. This common thread is adroitly summed up by the comments of Professor Peter Gillies:
The cases reflect a diversity of approaches to the issue of when actual bodily harm may be consented to for the purpose of the criminal law. Given the variety of relevant fact situations, and the quite different policy considerations encountered in each, this is not surprising. The dominant factor in the confirmation of these exceptions by the court has of course been consideration of the public interest, and this is always an elusive concept which changes from social era to social era. As a broad proposition, it may be said that consent to the application of actual bodily harm and even more serious harm will be sanctioned by the courts when such application has general social approval.[29]
In R v Stein,[30] a case decided by the Victorian Court of Appeal some 14 years subsequent to Brown, the Court cited with approval the view expressed by Vincent J in R v McIntosh,[31] another Victorian decision that was written subsequent to Brown. Vincent J opined that if a victim consents to an activity that involves the infliction of significant physical injury ‘or the reckless acceptance of the risk that it will occur ... the consent of the victim will not be recognised’.[32] Therefore, as long ago as McIntosh, the continued vitality of the distinction between actual and grievous bodily harm in the context of the lawful activities exception appears to be alive and well as indicated in Stein eight years later.[33] It also appears that this exception is not based solely only the balancing test, but also the level of harm that is inflicted or threatened. As the Victorian Court of Appeal later opined in Neal v The Queen,[34] ‘[w]hichever of those two views be correct ... the decision of the English Court of Appeal in R v Dica and subsequent decisions in England establish that different considerations apply where the question is whether consent to the risk of infection with HIV is a defence to a charge of conduct endangering life by engaging in sexual activity while infected with HIV [citation omitted]’.[35]
The central question raised in Neal was whether one can lawfully consent to the risk of infection with HIV or any other sexually transmitted disease. In Neal, the Victorian Court of Appeal had occasion to address what appeared at the time to be a rather uncomplicated question of law. Barring those instances in which condoms ultimately fail during the course of sexual conduct, the question was really one of whether the law is prepared to sanction unprotected sex between or amongst consenting parties who are fully informed that one or more of them is infected with a communicable and potentially fatal virus or disease such as HIV or AIDS respectively? If so, under what circumstances can such consent be given and, perhaps most importantly, on what public policy basis are the courts willing to acquiesce in allowing persons to give an informed lawful consent to a risk of such magnitude?
In Neal, the applicant was convicted of numerous offences, the most relevant for present purposes being several counts of causing another person to be infected with HIV,[36] attempting to cause another person to be infected with HIV[37] and recklessly engaging in conduct that places or may place another in danger of death or serious injury.[38] The charges arose out of several incidents in which the applicant, who had tested positive for the HIV virus, engaged in unprotected sex with other men while failing to disclose that he was infected with HIV or that it was capable of being sexually transmitted to others.[39] In some instances the applicant’s sexual partners had been advised, prior to sexual penetration, that the applicant had tested positive for the HIV virus. Although the applicant appealed his conviction on several counts involving many different offences, for present purposes the key issue raised on appeal was whether informed consent may be interposed as a defence to a charge that involves an acceptance of the risk of being infected with the potentially fatal HIV virus.[40]
In addressing this issue, the Victorian Court of Appeal began by noting the contrasting approaches it had taken in Pallante and its subsequent decision in Stein.[41] As noted above, the Court in Neal opined that irrespective of whether the distinction drawn in Pallante between actual and grievous bodily harm or the Stein approach of using the term ‘serious physical injury’[42] is preferable,[43] it is clear from the English Court of Appeal’s decision of R v Dica[44] and its progeny that different ‘considerations apply where the question is whether consent to the risk of infection with HIV is a defence to a charge of conduct endangering life by engaging in sexual activity while infected with HIV [citation omitted]’.[45]
In Dica, the accused, knowing he was HIV positive, had unprotected sex with two women who were later diagnosed as having been infected with the virus.[46] The accused was subsequently convicted of two counts of recklessly infecting the women with HIV at a time when they were not aware that the accused was infected.[47] On appeal, the English Court of Appeal opined that although a person’s consent to sexual penetration is not to be regarded as consent to the risk of a resulting disease,[48] consent is available as a complete defence to a criminal offence emanating from the transmission of that disease to the consenting party.[49] The Court’s holding, however, was subject to the qualification that in order for such consent to be valid, it cannot involve conduct on the part of the accused that involves the intentional infliction of actual bodily harm (or greater), and this is so regardless of whether the purpose of the sexual conduct is for the sexual gratification of one or both participants, even if the conduct took place in a private setting.[50] In writing for the majority in Dica, the ensuing passage from the judgment of Judge LJ is most instructive in the context of this piece:
These participants are not intent on spreading or becoming infected with disease through sexual intercourse. They are not indulging in serious violence for the purposes of sexual gratification. They are simply prepared, knowingly, to run the risk – not the certainty – of infection, as well as all the other risks inherent in and possible consequences of sexual intercourse ...
The problems of criminalising the consensual taking of risks like these include the sheer impracticability of enforcement and the haphazard nature of its impact. The process would undermine the general understanding of the community that sexual relationships are pre-eminently private and essentially personal to the individuals involved in them. And if adults were to be liable to prosecution for the consequences of taking known risks with their health, it would seem odd that this should be confined to risks taken in the context of sexual intercourse, while they are nevertheless permitted to take the risks inherent in so many other aspects of everyday life ... (emphasis added)[citation omitted].[51]
In R v Barnes,[52] another English decision, the rule enunciated in Dica was construed as being contingent upon the existence of informed consent; that is, the victim being aware or made aware of the risk of the disease and still being prepared to accept the risk.[53] Further, it was emphasised in Neal that for consent to be informed, it must be communicated to the offender.[54] Finally, and to be contrasted with the above-quoted passage from the English Court of Appeal’s decision in Dica, the following passage from Neal intimates that an informed consent can only be given to the risk of being infected with HIV through sexual conduct:[55]
In our view, informed consent is capable of providing a defence to a charge of recklessly endangering a person with HIV through unprotected sexual intercourse, so long as the consent is communicated to the offender. It follows that, in order for the Crown to succeed in a prosecution for an offence of reckless conduct endangering a person with HIV through unprotected sexual intercourse, if the accused puts consent in issue, the Crown must prove beyond reasonable doubt that the complainant did not give informed consent to the risk or that the accused did not honestly believe that the complainant had given informed consent to the risk [citation omitted].[56]
On the other hand, there is other unambiguous language in Neal which suggests that the reasoning of the English Court of Appeal in Dica has been fully adopted in Victoria, including the obiter dicta (noted above) that strongly suggests that one can give valid informed consent to sexually transmitted risks other than contracting HIV.[57] On this particular point, Nettle and Redlich JJA, with whom Kryou AJA concurred, wrote:
In the present case, counsel did not refer to any Australian authority on the point and our research has not revealed any Australian case in which it has been considered. But, with respect, it appears to us that the reasoning in Dica is compelling. It is consistent with the view expressed in Brown that, absent social utility in the subject activity, informed consent may not be a defense. At the same time, it accords with the fact that it has not been thought necessary to criminalise those who recklessly take or accept the risks associated with consensual sexual intercourse. To do so would have ramifications which extend well beyond the criminal law to considerations of social and public health policy and is more appropriately a matter for Parliament [citations omitted].[58]
Thus, the fair import of Neal and its reliance on the English cases of Dica and Barnes is that Victoria has adopted the R v Brown social utility/risk balancing test to determine whether an activity is a socially acceptable one and, therefore, a lawful activity in which consent can be interposed as a defence to crimes involving the application or threat of actual bodily harm. What can also be gleaned from Neal is that at least in Victoria, the term grievous bodily harm may have been eschewed in favour of the expressions ‘serious’ or ‘significant’ physical injury for the purpose of applying the general rule that subject to certain recognised exceptions, the law does not permit persons to give lawful consent to the application or threat of actual or grievous bodily harm.
More importantly, Neal has adopted a different and controversial rule when the putative consent relates to the risk of being infected with HIV or, depending upon one’s reading of the case, any sexually transmitted disease (‘STD’). That is to say that one can lawfully consent to the risk of being infected with HIV or perhaps any other STD, subject to the qualifications that it is not the accused’s intention to infect the victim with the HIV virus (or perhaps some other STD), the victim is aware or made aware that the accused is infected with HIV (or some other STD) and that the consent is communicated to the accused. As all of the recognised exceptions to the general prohibition against allowing persons to consent to the infliction or threat of actual or grievous bodily harm are grounded in public policy, this raises an important question as to what, if any, public policy is of such paramount importance that the law is prepared to sanction an informed consent to the risk of being infected with a potentially fatal disease such as AIDS? [59] If a public policy of such magnitude exists, can it be reconciled with any number of instances in which the courts and legislatures have declined to create exceptions? Perhaps most controversial, if not foreboding, is what this public policy portends for the continued vitality of the general rule that subject to two or possibly three recognized exceptions, the law has been steadfast in its refusal to allow persons to interpose the defence of informed consent to criminal offences involving the application or threat of actual or grievous bodily harm.
The question of whether the law will permit a person to give lawful consent to the application or threat of actual or grievous bodily harm in the context of non-sexual assault prosecutions has, until recently, been fairly straightforward and driven by sound considerations of public policy. The law in this area begins with the hackneyed misnomer that an application or threat of force to which the alleged victim has consented does not constitute an assault because one who is willing has no basis upon which to complain.[60] That cliché, however, has been largely debunked by the general rule that subject to certain well-established exceptions, the law will not countenance the application or threat of actual or grievous bodily harm or, according to more recent authority of the appellate courts in Victoria, ‘serious’ or ‘significant’ physical injury.[61] Moreover, this is true regardless of whether the alleged victim has purportedly given unqualified and informed consent to the harm or injury in question.[62]
The exception for so-called lawful activities that was once thought to be limited to lawful sporting events under the criteria set out in Pallante, was arguably expanded to include any activity that is regarded as lawful under a social utility/risk balancing approach that was enunciated by the House of Lords in Brown and subsequently discussed with apparent approval by the Victorian Court of Appeal in Neal.[63] Under this exception, one may consent to the application or threat of actual bodily harm, but not harm that would be characterised as grievous bodily harm or serious physical injury.[64]
In Neal, however, the Court was confronted with an issue far more profound and controversial than merely deciding whether the sporting events exception should be expanded to include non-sports-related activities and, if so, under what circumstances. Rather, the Court was confronted with the issue of whether and under what circumstances a person could lawfully consent to the risk of being infected with the potentially fatal HIV virus and other sexually transmitted diseases.[65] Without rehashing the Court’s conclusion that a person can lawfully consent to the risk of HIV or any other sexually transmitted disease under the circumstances set forth above,[66] it is apparent from the above-quoted passages of the Victorian and English appellate courts in Neal and Dica respectively that both were of the view that the societal interest in safeguarding the right of consenting adults to engage in sexually gratifying activities, even those which carry a significant risk of infection with a potentially fatal virus, outweighs the competing public interest in protecting people from knowingly exposing themselves to the risks of death or serious illness that inhere in unprotected sexual conduct. Moreover, it also appears to outweigh the huge monetary and emotional costs that are certain to be foisted upon the health care system and aggrieved family members and friends.
Though the writer empathises with the courts’ libertarian view that the interest in according consenting adults the utmost freedom to determine for themselves what activities and concomitant risks they wish to partake in or accept, it is readily apparent that it is more appropriate to characterise the approach taken by the English Court of Appeal in Dica as an example of result-driven decision-making than a well-reasoned and principled application of settled legal principles. This became manifest when Dica was viewed in light of the Court’s earlier decision in Brown. Specifically, the writer believes that the English Court of Appeal in Dica, fully cognizant of the fact that a correct application of the balancing approach enunciated in Brown would lead to a result that they viewed as unpalatable, opted instead to declare by judicial fiat that one can consent to the risk of being infected with any sexually transmitted disease – even one that has the clear potential to cause death – provided there is no intention to infect the other person and the consent given is both informed and communicated to the accused.[67]
Aside from the fact that one cannot consent to serious physical injury under the lawful activities exception, one has to wonder what degree of social utility inheres in an HIV-infected person engaging in unprotected sex with a partner who is not infected, but who is fully aware of the pertinent facts and risks. If it is reasonable for a court to conclude that whatever social utility there is far outweighs the risks associated with that conduct, one has to ask whether there is any competing public interest that outweighs the right of consenting adults to partake in any activity they wish, irrespective of the known risks involved. Does the right of self-determination amongst informed and consenting adults supersede every conceivable countervailing public interest in the context of the balancing approach adopted in Brown? As the Brown balancing test was expressly rejected in the context of the issue presented in Neal,[68] a decision that fully adopted both the reasoning and result reached in Dica,[69] it is the writer’s view that the Court in Neal was equally cognizant of the fact that a principled application of the balancing test would have led to the same unpalatable result that prompted the English Court of Appeal to reject it in cases where the issue is whether one can lawfully consent to the risk of HIV or other sexually transmitted diseases.
While there are worthy justifications for allowing one to consent to the threat or application of actual bodily harm, especially in light of its rather mild threshold as defined in Donovan,[70] it is the writer’s view that there are precious few legitimate reasons to sanction the interposition of consent, however well-informed, as a defence to non-sexual assaults in which the victim is threatened with or sustains grievous bodily harm or, to invoke the terminology employed in McIntosh and Stein, ‘significant’[71] or ‘serious’[72] physical injury. Accordingly, the ambit of the exceptions, save for medical procedures and informed consent to the risk of contracting sexually transmitted diseases unintentionally, had been carefully crafted to preclude this defence in prosecutions for non-sexual assaults involving the threat or infliction of injuries of this severity.
While the exceptions for lawful activities and medical procedures appear to be grounded in sound considerations of public policy, one has to ask what societal interest is so paramount that the law should be willing to sanction the right of informed and consenting adults to consent to a very real risk of death or serious physical injury in the form of AIDS or other sexually transmitted diseases, provided the disease is not intentionally inflicted and the victim communicates his or her consent to the accused?[73] The only logical answer, and the one suggested by the above-quoted passages from Dica[74] and Neal,[75] is the public interest in according consenting adults the utmost freedom of choice in making decisions that affect their lives. Yet if that is so, then how does one explain the general rule discussed throughout this piece that subject to a few exceptions, the law does not permit persons to consent to the application or threat of actual, much less grievous bodily harm or what was termed in McIntosh and Stein as ‘significant’ or ‘serious’ physical injury respectively?
It is paradoxical to insist that it is contrary to public policy to allow consenting adults to engage in mutual combat,[76] yet permit consenting adults to give informed consent to the risk of contracting a potentially fatal STD such as AIDS, provided there is no intention on the part of the accused to infect the consenting person. If the public interest in according consenting adults the utmost freedom of choice is sufficient to sanction informed consent to a potentially fatal disease contracted through sexual activity, one has to question what remains of the general rule and, if anything, what?
To be sure, the above-quoted passage from the English Court of Appeal’s decision in Dica analogises informed consent to the risk of contracting HIV to many other ‘risks inherent in so many other aspects of everyday life’[77] to which adults are lawfully permitted to give informed consent. The analogy is certainly a legitimate one that should provide the impetus for courts and legislatures to rethink what the writer believes has now become an incoherent and unprincipled area of the law. At present, there is no apparent public policy that would justify the rule enunciated in Neal. If the public interest in freedom of choice is truly sufficient to sanction informed consent to a genuine risk of being infected with a potentially fatal disease, [78] it is difficult to envision any risk that cannot be the subject of informed consent, save for the caveats that it was not the offender’s intention to inflict the relevant harm and the victim’s informed consent was both present and communicated to the accused. Therefore, in the aftermath of Neal, it is incumbent upon the courts to explain with greater specificity what remains of the general rule that one cannot lawfully consent to actual or grievous bodily harm. If the answer is very little as it appears, it is time for the various legislative bodies to rethink the notion of reinstituting what was long regarded as an important and salutary rule in the law of non-sexual assault.
[∗] Associate Professor, Deakin University School of Law; BA, University of Kentucky; JD, University of Toledo; LL.M, University of Edinburgh. I wish to thank my research assistants, Annette Cornish and Tess Blackie, for their excellent contribution to this piece.
[1] ‘The term assault involves the notion of want of consent. An assault with consent is not an assault at all’: R v Schloss [1897] QCLR 337, 339.
[2] Attorney-General’s Reference (No 6 of 1980), Re [1981] EWCA Crim 1; [1981] QB 715, 719 (per Lord Lane CJ) (‘Attorney-General’s Reference’): ‘... it is not in the public interest that people should try to cause, or should cause, each other actual bodily harm [emphasis added]...’.
[3] R v Donovan [1934] 2 KB 498, 509 (‘Donovan’): Actual bodily harm includes ‘any hurt or injury calculated to interfere with ... health or comfort ... Such hurt or injury need not be permanent, but must ... be more than merely transient or trifling’ (Swift J); see also R v Ireland; R v Burstow [1997] UKHL 34; [1997] 4 All ER 225; Li v The Queen [2005] NSWCCA 442 [45]; McIntyre v The Queen [2009] NSWCCA 305 [44]. Would a hard slap across the face qualify, or would it be excluded as merely transient, trifling or perhaps both? The test of mere actual bodily harm, however, has been criticized by the New Zealand Court of Appeal in R v Lee [2006] NZCA 60; [2006] 3 NZLR 42 [199], [203] and simply rejected in a number of subsequent English decisions: Neal v The Queen [2011] VSCA 172 (15 June 2011) (‘Neal’). The task of defining the expression ‘grievous bodily harm’ has also proven to be somewhat elusive. In Victoria, for example, the term ‘grievous bodily harm’ has been construed to be interchangeable with the expression ‘really serious bodily harm’: R v Miller [1951] VicLawRp 18; [1951] VLR 346, 356–7 (‘Miller’). The courts of South Australia, on the other hand, have expressed a preference for the term ‘grievous bodily harm’: R v Perks (1986) 41 SASR 335 (‘Perks’). It is a factual question for the jury as to whether the injury in question meets these descriptions: Miller [1951] VicLawRp 18; [1951] VLR 346, 356–7. Moreover, it is unnecessary for the trial judge to define these expressions in directing juries: Perks (1986) 41 SASR 335; R v Blevins (1988) 48 SASR 65, 68 employing the precise expression ‘really serious bodily harm’.
[4] Attorney-General’s Reference [1981] EWCA Crim 1; [1981] QB 715, 719; Collins v Wilcock [1984] 1 WLR 1172, 1177. See also Kenneth J Arenson, Mirko Bagaric and Peter Gillies, Criminal Law in the Common Law Jurisdictions: Cases and Materials (Oxford University Press, 3rd ed, 2011) 280–1, 289; Paul J Farrugia, ‘The Consent Defence: Sports Violence, Sadomasochism, and the Criminal Law’ [1996–99] 8 Auckland University Law Review 472, 473; Nicola Monaghan, Criminal Law Directions (Oxford University Press, 2nd ed, 2012) 167–8. In the Code jurisdiction of Queensland, it is permissible to consent to an assault occasioning actual, but not grievous bodily harm: R v Raabe (1985) 14 A Crim R 381, 381, 384; Lergesner v Carroll [1991] 1 Qd R 206, 217−8 (involving fistfights between men outside of pubs). This is based on the fact that grievous bodily harm, as defined in the Criminal Code 1899 (Qld) s 320, does not include as an element of the offence that the accused assault the victim, and therefore does not incorporate the requirement of a lack of consent in s 245 (which defines assault for the purposes of the Code). In WA the identical wording of the provisions of the Criminal Code Act Compilation Act 1913 (WA) led to the acceptance of the authority of Lergesner v Carroll [1991] 1 Qd R 206; see also Houghton v R [2004] WASCA 20; (2008) 144 A Crim R 343, 350 [39]. According to obiter dicta, this is consonant with the old English common law view that while informed consent was a valid defence to a charge of occasioning actual bodily harm, it was not a defence to a charge of occasioning grievous bodily harm: R v Brown [1993] UKHL 19; [1994] 1 AC 212, 276–9 (Lords Mustill and Slynn dissenting) (‘Brown’). This view, however, was rejected in Brown: ibid 231-35. In the Northern Territory, proof of lack of consent is required to make out a charge of assault, as defined in s 187 of the Criminal Code Act 1983 (NT) which requires that force be applied to another without their consent. This led to the acceptance that evidence of consent in the form of an invitation to fight may exculpate an accused: Police v Allan James Robinson [2008] NTMC 004 [145]−[172]; Police v Segeyara [2008] NTMC 019 [10]−[13]. However in R v Holmes (1993) 2 Tas R 232, 236, Wright J opined, ‘I am compelled to the conclusion that the law of Tasmania as expressed in the Code, s 182(4), coincides with the principle established by the English and Canadian decisions’.
[5] Attorney-General’s Reference [1981] EWCA Crim 1; [1981] QB 715, 719: ‘Nothing which we have said is intended to cast doubt upon the accepted legality of properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions, etc. These apparent exceptions can be justified as involving the exercise of a legal right, in the case of chastisement or correction, or as needed in the public interest, in the other cases’. (Lord Lane CJ).
[6] Common assault, although a common law form of non-sexual assault, will also be omitted from the discussion because, like the common law sexual assault offences of rape and indecent assault, it requires proof of the complainant’s lack of consent as an actus reus element of the crime under both the battery and assault limbs of the offence: Arenson, Bagaric and Gillies, above n 4, 261–264, 299–303, 326.
[7] Pallante v Stadiums Pty Ltd (No 1) [1976] VicRp 29; [1976] VR 331 (‘Pallante’).
[8] Ibid 331.
[9] Ibid 340 (McInerney J).
[10]Ibid 343 (McInerney J).
[11] See Summary Offences Act 1966 (Vic) s 42 (1AA)(1). Under this provision, tattooing of a person under the age of eighteen is generally an offence in Victoria. This represents an instance in which the Victorian Parliament has criminalized tattooing, an activity that cannot be fairly depicted as a sport, but nonetheless one that appears to otherwise satisfy the criteria of the lawful sporting events exception enunciated in Pallante.
[12] Brown [1993] UKHL 19; [1994] 1 AC 212.
[13] Ibid.
[14] Ibid 213.
[15] Ibid 236.
[16] Ibid 231.
[17] Ibid. His Lordship noted that examples of ‘lawful’ activities in this context include boxing, rugby and surgery. It is noteworthy that each of the foregoing examples contemplates that actual or perhaps even grievous bodily harm are to be expected as an incidental aspect of the activity.
[18] Ibid 234. For example, see R v Wilson [1997] QB 47 in relation to consent to branding, also R v Emmett [1999] EWCA Crim 1710 decided shortly afterwards which did not follow Wilson in finding that the woman could not consent to having lighter fluid poured on her breast and set alight, despite her being fully aware of the risks. We note that Brown also discusses body modifications such as tattooing/piercing etc. Both decisions are entirely consistent with the Brown balancing test.
[19] Ibid 235.
[20] Ibid 235–6.
[21] Ibid 237. Lords Jauncey and Lowery concurred with the judgement of Lord Templeman: Ibid 237. Lords Mustill and Slynn dissented: Ibid 275 and 283 respectively.
[22] Brown [1993] UKHL 19; [1994] 1 AC 212, 235 (Lord Templeman), 246 (Lord Jauncey), 255 (Lord Lowry).
[23] Ibid 236.
[24] Pallante [1976] VicRp 29; [1976] VR 331, 339.
[25] Brown 1 AC 212, 236 (Lord Templeman).
[26] Brown [1993] UKHL 19; [1994] 1 AC 212, 229 (Lord Templeman); Attorney-General’s Reference [1981] EWCA Crim 1; [1981] QB 715, 716. For other insightful commentary on this issue, see Peter Gillies, Criminal Law (LBC Information Services, 4th ed, 1997) 332–4; P Skegg, ‘Medical Procedures and the Crime of Battery’ [1974] Criminal Law Review 693; Frank Bates, ‘Consenting to the Necessary’ (1972) 46 Australian Law Journal 73.
[27] Peter Gillies, Criminal Law (LBC Information Services, 4th ed, 1997) 333.
[28] See, for example, R v Richardson [1999] QB 444. A dentist successfully appealed convictions for assault occasioning bodily harm on the basis that each of the patients had given an informed consent to the dental procedures.
[29] Gillies, above n 27.
[30] R v Stein [2007] VSCA 300 (‘Stein’).
[31] R v McIntosh [1999] VSC 358 (‘McIntosh’). In McIntosh, Vincent J’s comment was made while passing sentence on the accused after he had entered a plea of guilty to the charge of manslaughter.
[32] Ibid [14] (Vincent J).
[33] Stein [2007] VSCA 300; in assessing the level of the risk of activity engaged in, Kellam JA (with whom Vincent and Neave JJA agreed) used the term ‘serious physical injury’ rather than grievous bodily harm.
[34] Neal [2011] VSCA 172.
[35] Neal [2011] VSCA 172 [63] (Nettle and Redlich JJA and Kryou AJA). Conspicuously absent in the quotation and throughout the entire opinion in Neal is any justification as to why ‘different considerations apply’ in cases where the issue is whether one can consent to the risk of contracting HIV via sexual activity. More to the point, the Court in Neal, though all but expressly adopting the social utility/risk balancing test set out in Brown, gave no reason for refusing to utilise that test in these types of cases. As stated below, the writer believes that the English and Australian appellate courts in R v Dica [2004] EWCA Crim 1103 (‘Dica’) and Neal respectively, refused to apply the Brown balancing test for the obvious reason that if there is even the slightest social utility in having unprotected sex with someone who is not infected, but is fully aware of the risk and willing to assume it, it pales in comparison to the risks associated with the activity. Thus, it appears that both appellate courts strayed from the approach taken in Brown in order to achieve what they perceived as a fair and just result. This is yet another example of result-oriented decision-making in which courts effectively legislate from the bench and, in so doing, flout the doctrine of separation of powers. While courts in common law jurisdictions have the inherent power to fill in gaps in the common law when necessary as part of their additional power to incrementally develop the common law, result-driven decisions of this type offend the separation of powers doctrine by usurping powers that are entrusted exclusively to parliament.
[36] Crimes Act 1958 (Vic) s 19A.
[39] Neal [2011] VSCA 172 [8], [11]–[12], [14]–[15], [17], [21]–[22], [24], [26]–[28]. In Mutemeri v Cheesman [1998] 4 VR 484 per Mandie J, it was held that under the endangerment statutes of ss 22 and 23 of the Crimes Act 1958 (Vic), it is only permissible to prosecute the accused under s 23 for endangering another person by having unprotected sex with them while aware that he or she was infected with the HIV virus. Section 23 requires the accused to have recklessly engaged in conduct that places or may place another in danger of serious injury. Section 22 is written in the identical language, save for the fact that it speaks of conduct that places or may place another person in danger of death. The reason given by the court for restricting such prosecutions to s 23 is that unlike the early 1980s when contracting the HIV virus nearly always led to death from the AIDS (Acquired Immune Deficiency Syndrome) disease that resulted from the HIV virus, there are effective treatments for those infected with HIV today. Thus, while it is still possible in modern times that one could die as a result of the HIV virus leading to the AIDS disease, it is so unlikely to occur that it cannot satisfy the s 22 mens rea requirement that the accused act with foresight of the probability that death would result from having unprotected sex with another while infected with HIV. On the other hand, it would satisfy the s 23 mens rea requirement of probability type recklessness as to causing serious injury to the other person.
[40] Neal [2011] VSCA 172 [54]–[75].
[41] Ibid [62]–[63] (citing McIntosh [1999] VSC 358 (Vincent JA)).
[42] Stein [2007] VSCA 300.
[43] Neal [2011] VSCA 172 [62]–[63].
[44] R v Dica [2004] EWCA Crim 1103 (‘Dica’).
[45] Neal [2011] VSCA 172 [63].
[46] Dica [2004] EWCA Crim 1103.
[47] Ibid [1].
[48] Ibid [39].
[49] Ibid [51]–[52].
[50] Ibid [58].
[51] Ibid [47], [59].
[52] R v Barnes [2004] EWCA Crim 3246 [10] (‘Barnes’).
[53] Ibid.
[54] Neal [2011] VSCA 172 [72].
[55] Ibid.
[56] Ibid (Nettle and Redlich JJA and Kryou AJA).
[57] Dica [2004] EWCA Crim 1103 [47], [50]–[51].
[58] Neal [2011] VSCA 172 [71].
[59] Ibid. Two related cases that are interesting, but not directly on point to the topic of this article, are R v S (1991) 22 NSWLR 548 and R v Palmer [2008] SADC 122 (17 December 2008). In these cases, the accused were prosecuted for culpable driving under ss 52A and 19A of the Crimes Act 1900 (NSW) and Criminal Law Consolidation Act 1935 (SA) respectively. Under both statutes, the prohibited act was that of causing harm to another person via driving that was dangerous to the public. In R v S, the key issue raised on appeal concerned the meaning of the word ‘public’.In writing for the Court, Gleeson CJ opined that while a passenger in a vehicle could be a member of the public, this would not always be true: R v S (1991) 22 NSWLR 548, 552−4. In this instance, the Court found that because there had been a ‘joint escapade’ on the part of the accused and two passengers, one of whom was killed in the escapade, the accused’s conduct could not constitute driving that was dangerous to the public. In the case of R v Palmer, decided some 17 years subsequent to R v S, a South Australian trial judge similarly held that a joint escapade involving the driver and 2 passengers, all of whom were friends, could not be found to have been dangerous to the public: R v Palmer [2008] SADC 122 (17 December 2008) [9]−[20]. These decisions, however, are distinguishable from the cases that are discussed in this piece. In particular, these cases were decided on the basis of statutory interpretation of the meaning of the word ‘public’ in the context of the relevant statutes. In addition, the common law doctrine that persons are generally not permitted to give lawful consent to actual or grievous bodily harm, subject to certain exceptions, was never mentioned in either decision. Thus, although neither case can be considered as binding precedent vis-à-vis the common law doctrine of consent in the context of non-sexual assault, there appears to be a tacit undercurrent that persons who consensually place themselves in a position of danger are not within the purview of the word ‘public’ within the meaning of ss 52A and 19A. It is fair to say, therefore, that consent or the lack thereof was a major factor in the outcome of both decisions. For another decision that followed R v S, see R v Breuker [2011] SADC 64 (11 May 2011). The cases of R v Parkin [2011] SADC 80 (27 May 2011) and R v James [2012] SADC 2 (10 January 2012) both involved defendants who were driving on deserted but public roads. They distinguished the facts from R v S on the basis that the driving need only be dangerous to the public ‘in the sense of the public who were or may have been in the vicinity of the driving’: R v James [2012] SADC 2 (10 January 2012) [73] (emphasis added). In so doing the judge in James queried whether it was enough that passengers had consented to the dangerous driving, or whether they needed to be particeps criminis in the legal sense and how this comported with the principle that persons cannot consent to serious bodily harm. Unfortunately, these questions were never answered: at [67]−[70].
[60] R v Schloss [1897] QCLR 337, 339.
[61] See Davis v Chief of Army [2011] ADFDAT 1 (22 February 2011). After a consideration of English, New Zealand, Canadian and Australian authorities, Tracey and Mildren JJ and White JA concluded at [29] that ‘the law does not recognise consent as a defence where there is either an intention to cause bodily harm or where bodily harm is in fact caused’. See Stein [2007] VSCA 300 [22] (‘serious physical injury’); McIntosh [1999] VSC 358 [13](‘significant physical injury’).
[62] Neal [2011] VSCA 172 [73].
[63] Ibid [57], [60]–[61].
[64] Ibid [57]–[62].
[65] Ibid [63].
[66] Ibid [73].
[67] Dica [2004] QB 1257 [47]. The Court was certainly aware that under the Brown balancing approach, as well as the English and Australian cases that applied it, one could not lawfully consent to grievous bodily harm or, to use the terminology of McIntosh and Stein, ‘significant’ or ‘serious’ physical injury’ respectively. The Court was also acutely aware that HIV constitutes that type of harm, whichever terminology is used.
[68] Neal [2011] VSCA 172 [63].
[69] Ibid [71].
[70] Donovan [1934] 2 KB 498, 509.
[71] McIntosh [1999] VSC 358 [13].
[72] Stein [2007] VSCA 300 [22].
[73] Neal [2011] VSCA 172 [64], [65], [72].
[74] Dica [2004] EWCA Crim 1103 [47]–[51].
[75] Neal [2011] VSCA 172 [71].
[76] Dica [2004] EWCA Crim 1103 [41]; McIntosh [1999] VSC 358; Brown [1993] UKHL 19; [1994] 1 AC 212, 233: Attorney-General’s Reference [1981] EWCA Crim 1; [1981] QB 715, 719; Pallante [1976] VicRp 29; [1976] VR 331, 335.
[77] Dica [2004] EWCA Crim 1103 [51].
[78] Dica [2004] QB 1257 [47].
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