DEFENCES - consent Flashcards
when is consent mentioned for use as a defence
crimes act does nto include a defence of consent geenrally butit may be avaibale under express sections or the common law
where a statute expressly mentions consnet….. what sections
crimes act occasionally specifies when consent is required or not a deffsne
- 61a surgery
- s128 sexual actions
- s63 consent not a defense to detah
- s132 consnet not a defnece to sex w minors
when a statute expressely mentions consnet
apply it as it is set out in the statute
two types of consent in what section
- express
- implied
- 20(1)
what is implied consent
physicla conatct in everyday life implies contsent liek accidentally brishing somoene in a crowd, sport
what thes go with consent in sport
if someone gets injured in sport, that is implied consnet howveer if the injury goes beyond whag is impliedly consents to can face liability
most organised sports have
rules and disciplinary measures to address misconduct
for concudct to be crimial in sport it must be
serious enough to cross the line for disciplinary measures to inherntly criminal but sometimes falling outside of theline may not be criminal
key considerations for implied consent
- conditions of the game
- nature of the act
- degree of force
- risk of injury
state of mind for implied consnet
while the defendants inetnt is not the focus it is part of the overall cirucmstaces to assess if implied consent exists
propotinality of actions for implied consent
- consent is only valid if the act remains within the scope of the activity consented to, typciallig limiting th defence to minor harm and reasonable risks associated with the sport
what is express consnet
establsihed if the defendant had a genuine beleif that the other party consented even if the beleif is subjective
what is the balancing test for express consent
consent v public polciy
consent v public polciy
balcing test that considers if for public policy coerns there is a good reaosn to firbid consnet based on public/social welfare or if there is a value on the persons freedom to make choices ( limited by public interest)
the sliding test for public policy v conset
lower harm - minor bodily injury, consnet likely valid
intermediate harm - wounding or serious injury, consent less likely considered valid
high harm - GBH, rare for courts to acceopt consnet and never aviablable fo murderous intent
key factors in determining consent
- seriousness of injury
- social utility
- autonomy v vulnerabilty
explain seriousness of injury
in the key factors of determineing consent
the more severe the injury risked, the less likely the consent will be allowed due to public policy concerns
explain social utilty
in the key factors of determineing consent
high value activity (sport, profes perfomances) may have social utiltiy that justifies the risk of harm (knife throwing in the circus)
explain autonomy v vulnerability
in the key factors of determineing consent
perosnal autonomy is a key principles but where indiciduals are young or vulnerabke, courts are less likely tp accept consnet escpicially when there is evidnce of hesitation or lack of clear descion makinh capacity
legally ineffective consnet
consnet may be rendered legally ineffective in these situatins
- mistake
- mental incapcity
- fear
exam tip with consnet
implied consnet - in sports
express consent - contexts like circus permfomaces (knife throwing )
R V BARNES FACTS
involved ametuer fooball, tackled and gave serious leg injury, convicted of gbh
R V BARNES issue
did the judge givethe jury the correct info or misdircet
R V BARNES held
the jury was misdirected, the confiuct may have been outsdie the regualr sporting practice but jury still given insufficnet info
r v lee facts
l prerfomred an exorcism on a member of his chrurhc which resulted in detah of a woman
r v lee issue
was conset availale
r v lee held
yes consent was available when no mroe thanmere bodily injury is innedd and caused
r v barker facts
two girls age 15 and 17, engaged ikn body modicufication, both convited of wounding with intent to injure
r v barker issue
was consent able to be used as defence
r v barker held
yes consnet avail as the lee standard for with drawig the consent was not met, presumption for consent to the infliction of injury unless good reaosns to contradict
things to think about is the age … age content fir sex 16
s
s v r facts
17 girl accused by 38 man of his molesting child, he said submit to pnishment or leave she agreed so he hit her with a hammer and was convited
s v r issue
was consnet able to be used as a defence
s v r held
no consnet was not avail as social untiltiy and personal autonomy does not outweigh oublci policy reaosns for excluding defense, imported sliding scale from barker
r v kempson facts
grace milane case
r v kempson issue
was consetn available as a defence
r v kempson held
Consent is not allowed because, under section 63, you cannot consent to death. So, consent isn’t valid when someone intends to do something likely to cause death.
whatare the steps for defencs
- Determine if the actus reus (AR) and mens rea (MR) are met.
- If they are, examine the applicable defenses.
- There’s no point in considering defenses if AR and MR are not established.
- Identify the elements of the defense.
- Apply these elements to the specific facts of the case.
W
what is the balancing test for implied consnet
need to respect what poeple wanna do but also need to
