The defendant was convicted of indecent assault and common assault after caning a 17 year old female complainant for the purposes of sexual gratification. The complainant suffered actual bodily harm, though the defendant was not charged with an offence under s.47. His defence was consent. The judge had directed the jury that the issue was consent or no consent, without giving any guidance on the burden of proof.
Held: A direction should have been given on consent, as in the circumstances of the case the jury might reasonably have found consent. The court rejected the argument that it was unnecessary for the prosecution to prove absence of consent and that therefore the failure to give the direction was immaterial: ‘Always supposing, therefore, that the blows which he struck were likely or intended to do bodily harm, we are of opinion that he was doing an unlawful act, no evidence having been given of facts which would bring the case within any of the exceptions to the general rule. In our view, on the evidence given at the trial, the jury should have been directed that, if they were satisfied that the blows struck by the prisoner were likely or intended to do bodily harm to the prosecutrix, they ought to convict him, and that it was only if they were not so satisfied, that it became necessary to consider the further question whether the prosecution had negatived consent. For this purpose we think that ‘bodily harm’ has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling.’
Citations:
[1934] 25 Cr App R 1 CCA, [1934] 2 KB 498
Jurisdiction:
England and Wales
Cited by:
Cited – Regina v Brown (Anthony); Regina v Lucas; etc HL 11-Mar-1993
The appellants had been convicted of assault, after having engaged in consensual acts of sado-masochism in which they inflicted varying degreees of physical self harm. They had pleaded guilty after a ruling that the prosecution had not needed to . .
Cited – Regina v Dica CACD 5-May-2004
Reckless HIV transmission – Grievous Bodily Harm
The defendant appealed against his conviction for inflicting grievous bodily harm. He had HIV/Aids, and was found to have transmitted the disease by intercourse when the victims were not informed of his condition. It was not suggested that any rape . .
Cited – Regina v Kimber CACD 1983
For mens rea, it is the defendant’s belief, not the grounds on which it is based, which goes to negative the intent. The guilty state of mind was the intent to use personal violence to a woman without her consent. If the defendant did not so intend, . .
Cited – Regina v Boyea CACD 28-Jan-1992
The defendant was accused of having, with or without the consent of his victim, caused her physical damage by inserting his hand in her vagina and twisting it.
Held: ‘the extent of the violence inflicted . . went far beyond the risk of minor . .
Cited – Meachen, Regina v CACD 20-Oct-2006
The appellant appealed his conviction for anal rape. He said the incident had been consensual. He had administered a date rape drug. He said again that this had been consensual. The prosecution alleged that the injuries left were inconsistent with . .
Cited – F v West Berkshire Health Authority HL 17-Jul-1990
The parties considered the propriety of a sterilisation of a woman who was, through mental incapacity, unable to give her consent.
Held: The appeal succeeded, and the operation would be lawful if the doctor considered it to be in the best . .
Cited – Regina v Brown etc CACD 15-Apr-1992
The defendants appealed against their convictions for offences under the 1861 Act of assaults inflicting injury. They said that as sado-masochists, they had mutually consented to the assaults and that no offences had been commited, but pleaded gulty . .
Cited – BM, Regina v CACD 22-Mar-2018
The defendant appealed from a preliminary ruling that his body modification services were not in law capable of being consented to and therefore amounted to an assault.
Held: The appeal failed: ‘we can see no good reason why body modification . .
Lists of cited by and citing cases may be incomplete.
Crime
Updated: 29 May 2022; Ref: scu.182262