R v Holmes [1993] TASSC 5

2. The accused's essential defence appears to me to be that the activities of that night in which he and Mrs Cetkovic were engaged were consensual activities in the sense that they were both in a highly emotional state and willingly engaged in violence towards each other. So far as the counts of assault involving Mrs Cetkovic's two children are concerned, his defence is plainly one of accidental contact which of course would not amount to assault if that were the view accepted by the jury.

3. Now I have referred counsel to a number of decisions in which the question of consensual violence has been raised. In R v Raabe (1981) 1 Qd R 115, Connelly J expressed the view that there could be no valid consent given to force which is intended to and does cause bodily harm. I note that despite the headnote in that case, Connelly J was indeed alone in expressing that view and that Derrington J actually expressed a contrary view. The Court of Criminal appeal as constituted in Kirkpatrick v Tully (1991) 2 Qd R 291 (a later Queensland decision) did not make a specific choice between the views of Connelly or Derrington JJ, but simply confirmed that in the circumstances of that case the correct decision had been made. It seems therefore that whilst it may be said Connelly J is the only Australian judge of whom I am aware who has expressed a view consonant with the English and Canadian decisions, equally it might be said that Derrington J is the only Queensland judge who has expressed a view contrary to that line of authority. The common law in England has indeed adopted a stance similar to that adopted by Connelly J and I refer to Re the Attorney-General's Reference (No 6/1980) [1981] EWCA Crim 1; (1981) QB 715 and Brown's case (1992) 2 WLR 441. I have an impression, I might say, that Brown's case went to the House of Lords and was affirmed in the very recent past, but try as I might overnight, I was unable to track down the report of that House of Lords decision.

4. At all events, those two decisions support the view that at common law in a case such as the present, where the defence does not deny that the accused inflicted violence upon the complainant and does not seek to rely upon self-defence, - and I understand that self-defence is not relied upon, although for obvious reasons I will be including it in the memorandum to the jury and I will be giving them a self-defence direction in due course - then in such circumstances the essential question for the jury is whether they are satisfied beyond reasonable doubt that the blows struck by the accused were likely or were intended by him to cause bodily harm to the complainant. If the jury is so satisfied any consent, whether express or implied, becomes irrelevant in my opinion, and the jury should convict the accused, provided, of course, it is satisfied to the requisite degree of all the other essential elements of the crime of assault.

5. "Bodily harm" in this context has its usual meaning and includes any hurt or injury which interferes with the health or comfort of the complainant. It need not be permanent but it must be more than merely transient or trifling.

6. The effect of this view of the law appears to me to have been very succinctly stated by Lord Lane CJ in Re the Attorney-General's Reference (No 6/1980) (supra) where he said, "Most fights will be unlawful regardless of consent" and I think that that indeed is the state that the law has currently reached in England and in Canada and indeed is the correct view of the law in Tasmania.

7. If the prosecution fails to persuade the jury that bodily harm to the complainant was likely in the circumstances or that the accused did not intend to cause bodily harm by his action, the jury may then consider the question of consent and unless satisfied that the complainant did not consent to the assault alleged, the jury should acquit the accused.

8. A reading of earlier English decisions reveals that the opinions of Cave and Stephen JJ in The Queen v Coney (1882) 8 QB 534, may well be the source of the Tasmanian Criminal Code, s182(4). In that case Cave J said at 539:

"The true view is, I think, that a blow struck in anger, or which

is likely or is intended to do corporal hurt, is an assault, but

that a blow struck in sport, and not likely, nor intended to cause

bodily harm, is not an assault, and that, an assault being a

breach of the peace and unlawful, the consent of the person struck

is immaterial."

"When one person is indicted for inflicting personal injury upon

another, the consent of the person who sustains the injury is no

defence to the person who inflicts the injury, if the injury is of

such a nature, or inflicted under such circumstances, that its

infliction is injurious to the public as well as to the person

injured. But the injuries given and received in prize-fights are

injurious to the public, both because it is against the public

interest that the lives and health of the combatants should be

endangered by blows, and because prize-fights are disorderly

exhibitions, mischievous upon many obvious grounds. Therefore the

consent of the parties to the blows which they mutually receive

does not prevent those blows from being assaults."

9. Now, I am conscious of course that it is not a proper course to begin by finding out what the law was as it stood before the enactment of the Code and then to see if the Code will bear an interpretation which will leave the law unaltered, and in that connection I refer to Brennan v The King [1936] HCA 24; (1936) 55 CLR 253 at 263. This, however, is a case in which in my opinion the very apt words of Windeyer J in Vallance's case [1961] HCA 42; (1961) 108 CLR 56 at 77, may well be seen as applicable to s182(4), that is as, being written on a palimpsest, "with the old writing still discernible behind". It is also of interest to note as has been mentioned in argument that there is a considerable line of recent Canadian authority which consistently endorses the view that the principle adopted by the English Court in relation to consent applies to relevant statutory enactments in Canada dealing with consent as an element of the crime of assault. See for example, The Queen v Gur (1986) 27 CCC (3d) 511, a decision of the Nova Scotia Supreme Court, Appeal Division; The Queen v Jobidon (1989) 45 CCC (3d) 177, a decision of the Ontario Court of Appeal, which was affirmed on appeal to the Supreme Court of Canada in (1991) 66 CCC (3d) 454; The Queen v McIntosh (1991) 66 CCC (3d) 294, another decision of the Ontario Court of Appeal and The Queen v Carriere (1988) 35 CCC (3d) 276, a decision of the Alberta Court of Appeal.

10. In all these cases the relevant courts saw no impediment to limiting effective consent in the way suggested by the Court of Appeal in England in 1981, notwithstanding the presence of a Criminal Code in which a definition of assault had been incorporated. In my opinion, the cases I have referred to constitute a formidable and highly persuasive line of authority and I am compelled to the conclusion that the law of Tasmania as expressed in the Code, s182(4), coincides with the principle established by the English and Canadian decisions. I propose to direct the jury accordingly.

11. It is of course necessary under s182(4) that to be unlawful the actions of the accused must also involve a breach of the peace if consent is present. Constable Slade said he arrested the accused originally for "using words calculated or likely to cause a breach of the peace". This of course is not determinative of or even evidence of the fact that a breach of the peace was occurring at the time the police arrived. However whilst the police powers of arrest are limited by the Code, s27(6) and the Police Offences Act 1935, ss13 and 55, so that an officer may only arrest a person committing a breach of the peace or behaving in a manner likely to cause a breach of the peace in certain defined circumstances, the limitation of police powers in no way circumscribes the nature of conduct which may amount to a breach of the peace.

12. It seems to me to be completely clear that in this case, on any view of the evidence, a breach of the peace must have occurred as a consequence of the evening's events if indeed bodily harm was caused to Mrs Cetkovic or was likely to be caused as a result of the accused's physical violence towards her. As to what is involved in a breach of the peace, see Howell v R (1981) 73 Crim App R 31. I refer to the accused's evidence in this respect at 259-261 where he has clearly assented to the proposition that during the course of the night's activities, both he and Mrs Cetkovic fought together. He used the phrase that he was not "attacking her" but they were "fighting together". He said that she was punching at him, he was punching at her. Asked, "Was she kicking at you", he said, "Yes". When asked, "Were you kicking her?" he said, "Not kicking her. We were both doing the same thing to one another." Perhaps this is an ambiguous response, but it is one capable at least of the interpretation that he was saying that he was not the only one kicking and they were both kicking each other. He said they were "scuffling" with each other. He was asked did he scratch her and he said, "No", although in cross-examination this morning he agreed he may well have done so, (not perhaps deliberately) and he said that she scratched him. He denied the sexual assault and he said these words at one stage in his evidence:

"We were pushing at one another. I pushed at Danica. She pushed

at me and we fought into the room. It wasn't a push or a drag or

a pull. It was both of us together."

"We rolled around a lot and fought at one another, not kicking and

punching but it would have been like kicking and punching. We

were rolling around together, pushing one another away and so on."

13. Of course there has also been the evidence from Dr Thompson as to injuries which he saw on Mrs Cetkovic and indeed her own evidence as to her injuries and the photographic evidence of those injuries. There was no suggestion that these injuries were cause other than in the course of the violence between Mrs Cetkovic and the accused. So it seems quite plain, I think, that there is certainly substantial evidence that whether consensual or not, what occurred between the two parties on that night did result in bodily harm of the kind proscribed by the cases and plainly there is a considerable amount of evidence in that respect. So I will be leaving that issue to the jury but I will be making comments to them about the evidence and the sufficiency of the evidence as to bodily harm and so on and I will be directing them essentially in accordance with par3 of the draft memorandum that I have handed to counsel, unless after a short break which I now propose to take Mr Chopping submits to me that that paragraph ought to be amended in some further way. I will take that break until 10.30 gentlemen. I will then resume, hear any further submissions and bring the jury back.