DEFENCES - consent

Question 1

when is consent mentioned for use as a defence

Answer 1

crimes act does nto include a defence of consent geenrally butit may be avaibale under express sections or the common law

Question 2

where a statute expressly mentions consnet….. what sections

Answer 2

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

Question 3

when a statute expressely mentions consnet

Answer 3

apply it as it is set out in the statute

Question 4

two types of consent in what section

Answer 4

• express
• implied
• 20(1)

Question 5

what is implied consent

Answer 5

physicla conatct in everyday life implies contsent liek accidentally brishing somoene in a crowd, sport

Question 6

what thes go with consent in sport

Answer 6

if someone gets injured in sport, that is implied consnet howveer if the injury goes beyond whag is impliedly consents to can face liability

Question 7

most organised sports have

Answer 7

rules and disciplinary measures to address misconduct

Question 8

for concudct to be crimial in sport it must be

Answer 8

serious enough to cross the line for disciplinary measures to inherntly criminal but sometimes falling outside of theline may not be criminal

Question 9

key considerations for implied consent

Answer 9

1. conditions of the game
2. nature of the act
3. degree of force
4. risk of injury

Question 10

state of mind for implied consnet

Answer 10

while the defendants inetnt is not the focus it is part of the overall cirucmstaces to assess if implied consent exists

Question 11

propotinality of actions for implied consent

Answer 11

• 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

Question 12

what is express consnet

Answer 12

establsihed if the defendant had a genuine beleif that the other party consented even if the beleif is subjective

Question 13

what is the balancing test for express consent

Answer 13

consent v public polciy

Question 14

consent v public polciy

Answer 14

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)

Question 15

the sliding test for public policy v conset

Answer 15

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

Question 16

key factors in determining consent

Answer 16

1. seriousness of injury
2. social utility
3. autonomy v vulnerabilty

Question 17

explain seriousness of injury
in the key factors of determineing consent

Answer 17

the more severe the injury risked, the less likely the consent will be allowed due to public policy concerns

Question 18

explain social utilty
in the key factors of determineing consent

Answer 18

high value activity (sport, profes perfomances) may have social utiltiy that justifies the risk of harm (knife throwing in the circus)

Question 19

explain autonomy v vulnerability
in the key factors of determineing consent

Answer 19

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

Question 20

legally ineffective consnet

Answer 20

consnet may be rendered legally ineffective in these situatins
- mistake
- mental incapcity
- fear

Question 21

exam tip with consnet

Answer 21

implied consnet - in sports
express consent - contexts like circus permfomaces (knife throwing )

Question 22

R V BARNES FACTS

Answer 22

involved ametuer fooball, tackled and gave serious leg injury, convicted of gbh

Question 23

R V BARNES issue

Answer 23

did the judge givethe jury the correct info or misdircet

Question 24

R V BARNES held

Answer 24

the jury was misdirected, the confiuct may have been outsdie the regualr sporting practice but jury still given insufficnet info

Question 25

r v lee facts

Answer 25

l prerfomred an exorcism on a member of his chrurhc which resulted in detah of a woman

Question 26

r v lee issue

Answer 26

was conset availale

Question 27

r v lee held

Answer 27

yes consent was available when no mroe thanmere bodily injury is innedd and caused

Question 28

r v barker facts

Answer 28

two girls age 15 and 17, engaged ikn body modicufication, both convited of wounding with intent to injure

Question 29

r v barker issue

Answer 29

was consent able to be used as defence

Question 30

r v barker held

Answer 30

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

Question 31

s

s v r facts

Answer 31

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

Question 32

s v r issue

Answer 32

was consnet able to be used as a defence

Question 33

s v r held

Answer 33

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

Question 34

r v kempson facts

Answer 34

grace milane case

Question 35

r v kempson issue

Answer 35

was consetn available as a defence

Question 36

r v kempson held

Answer 36

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.

Question 37

whatare the steps for defencs

Answer 37

• 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.

Question 38

W

what is the balancing test for implied consnet

Answer 38

need to respect what poeple wanna do but also need to