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HCMA000861/1987
| IN THE SUPREME COURT |
1987 No. 861 |
| MAGISTRACY APPEAL |
(Criminal) |
BETWEEN:
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THE QUEEN |
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and
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WILLIAM RYAN ERISMAN |
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Coram: Roberts, C.J. (Sitting as an additional High Court Judge)
Date of Hearing: 5th November, 1987.
Date of Handing Down: 12th November, 1987. (P.I. file)
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JUDGMENT
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Facts
1. The appellant, a boy aged 16, appeals against his conviction for assault occasioning actual bodily harm for which he was bound over for twelve months in the sum of $500.
2. On 2nd July, 1987, Mark West, an 11 year old boy and the only witness called by the prosecution, was playing what he described as a "war game" with two friends, Mark and Craig Chapman.
3. A "war game", as the magistrate found, is played by two teams, each player being armed with a toy gun capable of shooting out pellets. The object of the game is to hit the members of the opposing team.
4. The war game between West and the Chapman brothers had finished and the three boys were returning home when the defendant appeared, near the back entrance to the Erisman family's house.
5. At that point, Craig Chapman said "Its Bill (i.e. the defendant) and its us" and another war game began with West and the Chapman brothers on one side and the defendant, Erisman, on the other.
6. During the course of this war game, the defendant fired a pellet which hit West in his right eye, causing injuries of such a nature as to amount to actual bodily harm.
7. The magistrate found that the defendant had reasonable grounds to believe that West was a willing participant, as indeed West himself confirmed in his evidence.
Can consent be given?
8. There remained for argument on the appeal only one substantial issue, namely, whether in law West could give his consent to the activity which resulted in the injury to him.
9. I was referred to older cases on the subject, among them R. v. Bruce (1), R. v. Donovan (2) and R. v. Coney (3) .
10. Apart from the Bruce Case the others were considered by the Court of Appeal in Attorney-General's Reference No.6 of 1980(4).
11. The relevant passages from the judgment of Lane, L.C.J. in the latter case are as follows -
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we think that it can be taken as a starting point that it is an essential element of an assault that the act is done contrary to the will and without the consent of the victim, and it is doubtless for this reason that the burden lies on the prosecution to negative consent. Ordinarily, then, if the victim consents, the assailant is not guilty.
But the cases show that the Courts will make an exception to this rinciple where the public interest requires: Coney (1882) 8 Q.B.D. 534 (the Prize Fight case). "
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(b)
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Bearing in mind the various cases and the views of the text book writers cited to us, and starting with the proposition that ordinarily an act consented to will not constitute an assault, the question is: at what point does the public interest require the Court to hold otherwise?"
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(c)
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The answer to this question, in our judgment, is that it is not in the public interest that people should try to cause or should cause each other actual bodily harm for no good reason. Minor struggles are another matter. So, in our judgment, it is immaterial whether the act occurs in private or in public, it is an assault if actual bodily harm is intended and/or caused. This means that most fights will be unlawful regardless of consent.
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 cam 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."
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The effect of the Attorney General's Reference (4) can be summarized as follows -
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if the victim consents to an assault, the assault is not guilty of an offence;
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but if the public interest so requires, consent will not amount to a defence;
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it is not in the public interest that people should cause actual bodily harm to one another for no good reason;
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it is an assault if actual bodily harm is intended or caused;
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the only exceptions to (d) are -
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(i) |
minor struggles;
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(ii) |
properly conducted games and sports;
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(iii) |
lawful chastisement or correction;
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(iv) |
reasonable surgical interference,
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(v) |
dangerous exhibitions,
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(vi) |
etc. |
12. The Attorney General's Reference (4) seems to constitute a stricter test than that advanced in R. v. Donovan(2), in which Swift J. commented, at p.507-
"As a general rule, although it is a rule to which there are well established exceptions, it is an unlawful act to beat another person with such a degree of violence that the infliction of bodily harm is a probable consequence, and when such an act is proved, consent is immaterial."
13. Thus in the Attorney General's Reference the test of "probable consequence" has been abandoned in favour of a test of intention or causation - i.e. it is sufficient to make an assault unlawful, even if consent is given, if actual bodily harm is either intended or caused, unless the assault falls within one of the exceptions listed in paragraph (d) above.
14. The strictness of this new approach may well have influenced the Court in R. v. Terence Jones(5), in which the Court of Appeal considered the scope of the Attorney General's Reference (4).
15. McCowan, J., delivering the judgment of the court, commented -
"Mr. Mitchell stresses an absence from the catalogue given by the Lord Chief Justice of any reference to 'rough and undisciplined play.' We note however that the Lord Chief Justice added 'etc.' at the end of his list. We do not think that he intended the list to be exhaustive."
16. In Terence Jones, the Court of Appeal ruled that the issue of whether or not this was an instance of 'rough and undisciplined' sport or play, which Swift, J. in Donovan(2) had expressed to be an exception to the general rule.
17. In a passage at P.378, McCowan, J. comments as follows -
"Mr. Arlidge submits, first, that consent to 'rough and undisciplined play' where there is no intention to cause injury, must be a defence. Secondly, he says that even if consent is in fact absent, genuine belief by a defendant that consent was present would be a defence. Thirdly, he says that if the belief is genuinely held, it is irrelevant whether it is reasonably held or not. Those propositions, based on the authority of the cases of Kimber (1983) 77 Cr.App.R. 225 and Williams (1984) 78 Cr.App.R. 276, are, in our judgment, correct."
18. In Jones(5), the defendants had taken part in a rough game in the course of which two boys were thrown in the air and seriously injured when they landed.
19. It was submitted on behalf of the defendants at that trial that, although they had foreseen discomfort, bumps and bruises they had not foreseen serious injury. However, the trial judge declined to give a direction to the jury that, if they thought the defendants had been merely indulging in rough and undisciplined play, with no intent to injure, and in the belief that the victims were consenting, they should be acquitted.
20. The conviction was quashed by the Court of Appeal on the ground that the jury should have been given the opportunity of considering the defence, even if they might have had little difficulty in rejecting it.
21. It does not appear that Jones was cited to the magistrate, who found that the war game did not amount to 'rough and undisciplined play'. Since the facts in Jones pointed to conduct inherently more dangerous than the war games indulged in by West and the appellant, she might well have come to a different conclusion if Jones had been cited to her.
22. In her findings of fact, the magistrate found noted as follows -
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The war game as played by the boys is a dangerous past-time.
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The Defendant and PW1 knew of the dangers inherent in the war game as played by them.
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In the circumstances, no consent could have been given by PW1.
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.......... I find as a fact that in the circumstances the Defendant acted recklessly in causing the injury to PW1." |
23. It thus appears, though this is not without doubt, that the principal reason why the magistrate convicted the appellant was on the basis of her finding of fact that the defendant was reckless in causing the injury to West. The authorities, however, suggest that it is the nature of the activity which determines whether consent was given, not whether the defendant was careless. To that extent the magistrate, who tried this case with great care, can be said to have been in error.
24. Thus it would not be an offence if injury occurs during games, such as rugby football, which are conducted on an organized basis and carry a substantial degree of risk of injury; nor if a person is injured when taking part in rough and undisciplined games, such as an ad hoc football match, general scuffling and pushing or the playing of war-games of the kind with which we are concerned in this case, provided always that -
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(a)
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the injured party had consented to the game (or the defendant believed that he had); and
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the defendant did not intend to cause bodily harm. |
25. I suggest that those responsible should not be over zealous to prosecute those who cause injuries in the course of rough and ill-disciplined activities. It is indeed of the nature of a normal boy to take part in games and past-times which involve some degree of risk of injury.
26. I reached the conclusion that this appeal should be allowed and the conviction quashed.
(1) [1847] C.L.C. 262
(2) [1934] 2 K.B. 498
(3) [1882] 8 Q.B.D. 534
(4) [1981] 73 Cr App. R. 63
(5) [1986] 83 Cr.App.R. 375
Representation:
A. Bell (Haldane Midgley & Cheung) for Appellant
A.A. Bruce, Senior Crown Counsel, with V. Yim, Crown Counsel, for Respondent
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