Withdrawing the “defence” of victim consent to risked or intended harm: Moving away from category based decision making

In R v Lee (2006) 22 CRNZ 568 the New Zealand Court of Appeal departed from the decision making framework adopted by the House of Lords in R v Brown [1994] 1 AC 212 to determine when the defendant can rely on the victim’s consent as a “defence” to the intentional infliction of actual bodily harm. The New Zealand Court of Appeal adopted Lord Mustill’s dissenting position in Brown for actual bodily harm. For harm that amounts to grievous bodily harm, however, it did something far more radical - moving away from making a decision based on the category of behaviour in issue and instead directly applying the policy considerations that underpin this area of law to the specific facts of the individual case. I have argued that this approach gives actual consideration to individual autonomy and victim vulnerability in a manner that decision making by category of behaviour logically cannot. This paper tracks subsequent caselaw in an attempt to compare some of the benefits and disadvantages of the New Zealand and English approaches, particularly as they relate to the protection of victims of violence.

Professor Julia Tolmie teaches Criminal Law, Criminal Law and Policy and Women and the Law at The University of Auckland.