R v Donovan  2 KB 498
OFFENCES AGAINST THE PERSON - BODILY HARM – CONSENT
It was established at trial that the appellant, Mr Donovan, had ‘induced’ the victim to accompany him to his garage, wherein he had proceeded to beat her with a cane in ‘circumstances of indecency’. Mr Donovan argued that the victim had agreed to meet him in full understanding of his intentions, and had given every indication that she was consenting throughout. The trial judge directed the jury that ‘consent or no consent’ was the issue in cases of assault, and Mr Donovan was subsequently convicted of both indecent assault and common assault. An appeal was brought on the grounds that the jury had not been given adequate direction to decide the issue.
It was argued on appeal that the direction given at trial was defective in two respects. Firstly, it failed to establish that the burden of negativing consent fell to the prosecution, rather than the defence. Secondly, it failed to address whether, and in what circumstances, a person could legally consent to the infliction of actual bodily harm.
Held that, in cases where a person acts with intention to inflict bodily harm, the consent of the victim cannot render otherwise unlawful conduct lawful. Moreover, in cases where there was a question as to whether the defendant intended to inflict such harm, the burden of negativing consent fell upon the prosecution. The Court confirmed that the phrase ‘bodily harm’ should be given its ordinary meaning, and includes
“….any hurt or injury calculated to interfere with the health or comfort of the prosecutor.” ( 2 KB 498, per Swift J)
Such harm need not be permanent but it must not be “merely transient or trifling”