Attorney-General’s Reference (No 6 of 1980) [1981]


Crime - Assault - Consent – Fighting in a public place other than in the course of sport


The respondent and the complainant had an argument. They agreed to engage in a fist fight to settle the matter in a public street. The complainant was injured during the fight and the respondent was charged with assault under s 20 of the Offences Against a Person Act 1861.


The question put to the Attorney-General to consider under s 36 of the Criminal Justice Act 1972, was whether two people having a physical fight by way of consent, other than in sport, but in a public place, could use consent as a defence if the charge of assault arises. The Attorney-General found that consent was a valid defence, but not where the action involved unlawful activity that was contrary to the interests of the public.


Assault was defined as an act where a person intentionally or recklessly causes harm through unlawful violence. The Attorney-General opined that violence in a public place, other than in sport, amounted to a breach of the peace and was unlawful. To “unlawfully” wound a person is also a requirement to for an assault charge under s 20 of the Act. Further, violence when in anger was intended and likely to cause bodily injury, and is unlawful regardless of whether consent was given. The only defences found to be available were those permitted by law, i.e. sport, medical procedure, self-defence or the prevention of a crime.