The appellant, in this specific matter, Billy, has been in a relationship with the victim, Anita, for twelve years. They have a very strong relationship and love each other very deeply in the mean time. They were travelling together frequently and purchasing very expensive gifts for one another. Moreover, they also do have shared financial expenses and a joint mortgage. All of these factors show a high level of seriousness regarding the grounds of their relationship. For these reasons, everyone was aware of how much they loved each other. On the other hand, their private and intimate love life did include the inflicting of pain towards one another for sexual gratification, which was usually intensified while having sexual intercourse. One day, while having sexual intercourse, Billy grabbed Anita’s hair and started pulling it. Anita enjoyed this action and additionally asked Billy to pull her hair even harder. As a result she started to feel dizzy and asked the defendant, Billy, to stop, which he did immediately. Afterwards, Anita went downstairs to have some water, but whilst walking down the stairs she tripped and fell, which, at first instance, looked like a minor bruise in her forehead as she was conscious and responsive as well. In the mean time, the appellant, Billy, ran downstairs very worried as soon as he heard Anita drop, to help and take care of her. Billy calmed down as he noticed she was responsive, kissed her and called an ambulance, which arrived after one hour.
After arriving at the hospital, the victim went into a coma as the result of Dr. Edward’s negligence to check the paramedic’s medical notes.
2. This immense negligence on the medical side was ignored at Nicetown Crown Court and the defendant was convicted on the grounds of causing grievous bodily harm with intent under section 18 of the Offences Against the Person Act 1861.
Grounds of Appeal
3. This particular case offers a number of grounds of appeal which the appellant believes could overthrow the previous decision as the judge misdirected the jury regarding:
Consent of the victim to the addressed violence
Intention of the appellant to cause GBH
Chain of causation
Consent of the victim to the addressed violence
4. The judge misdirected the jury regarding consent in dangerous sexual activities. This misdirection had a very strong effect on the outcome of this case.
5. As shown, the judge did apparently rely his decision on the rule of R v Brown (1994) by stating that consent was inappropriate as a valid defence, hence had to be ignored in every case. That is a case in which sado-masochistic activity went on for a long time, between several young homosexual men. However, this precedent can not be taken into account for this matter, as the facts of the cases aren’t the same, despite them being very similar. After ruling on this previous precedent, the judges of the Court of Appeal did state that they were not going to allow sado-masochism as a defence in this particular matter after being introduced to all the facts, but did not express such thing related to other cases in the future.
6. It is crucial to add that the issues of our case are not equivalent to the ones of R v Donovan, which involved the canning of a 17 year old with her consent for sexual gratification. A case which was later on appealed by the defendant, and despite the facts, the previous decision was overthrown and the appellant was found innocent on the grounds that consent was used as a defence and not to deny his actions.
7. As established in R v Wilson (1996), consensual sexual activity between a married couple, in their own home, during their private times, was an inadequate matter for criminal examination and prosecution.
8. Moreover, this decision was taken without taking into account section 8 of the Human Rights Act (1998), the right to a private and family life. Article 8 states that:
“To respect one’s private life includes ‘the right to personal autonomy and physical and psychological integrity, i.e. the right not to be physically interfered with’”…
This case is about the private lives of Billy and Anita, who are both fully capable of making grown decisions regarding their sex life without creating any “cult of violence” or anything whatsoever that goes beyond what is said to be ‘acceptable’.
Intention of the appellant to cause GBH
9. The appellant was convicted under S.18 Offences against the Person Act 1861, which states that:
“Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person, with intent, to do some grievous bodily harm to any person, shall be guilty of felony..”
Intention requires that the defendant uses a type of weapon or at the very least that he planned the assault.
10. A very similar case is R v Slingsby consisting of injuries that occurred to the victim after the specified sexual intercourse, which later caused her death. In this case there was no sort of violence asserted (with/without consent) but in the meantime the facts are very comparable, even though, the outcome turned out worse in one of the two. In both cases the victims suffered injuries after performing sexual intercourse with their partners as a result of something that went wrong in the duration. However, their partner’s cannot be held accountable for those injuries because it wasn’t their intention to do so. These are types of accidents that happened because of the circumstances and not because of the people they were involved with.
11. The basic principal of criminal law teaches us that in order for an individual to be found guilty of a criminal offence, there has to be proof of mens rea with respect to his actus reus. Such evidence was never found. What the appellant had in mind did not consist of him harming his partner in any way other than to give some kind of sexual gratification. He explicitly followed his partner’s directions during the steps of the intercourse;
acted with her consent
he pulled her hair harder when she asked him to
he stopped immediately when asked
12. A question regarding the foreseeability of the injuries might arise to go in more detail and have a clearer idea with respect to his intention. The correct authority to lead us on this matter is R v Hancock. The Court of Appeal held that:
“ The appropriate direction should include a reference to the degree of probability and in particular an explanation that the greater the probability of a consequence the more likely it is that the consequence was foreseen and that if that consequence was foreseen the greater the probability is that that consequence was also intended”.
Chain of Causation
13. More importantly, the judge failed to address to the extremely important fact that the ambulance came one hour late and that the doctor’s failure to attend her according to the right procedure was extremely negligent.
14. There is a novus actus interveniens as the chain of causation is broken by a third party intervening in this case. (R v Pagett)
15. As a result, the question about who is responsible for Anita’s present condition arises and the ‘but-for’ test needs to be done in order to establish if the same consequences would have occurred, but for the appellant’s actions. The ‘but-for’ test was established in the past precedent, R v White, where the defendant tried to end his mother’s life by poisoning her. His mother did die in fact after drinking her tea, but the cause of her death was a heart attack and not his tentative to poison her, hence the defendant was not liable on the aforementioned case.
16. As we can easily notice from the facts of the case, Billy’s actions did lead Anita to fall down the stairs because she wasn’t feeling well (despite the consent),but his actions did not lead her to fall into coma, the doctor’s who breached his duty of care did. The doctor broke the chain of causation when he failed to take a look at the notes of the paramedics because this scenario is the one who put poor Anita into all the trouble. If the doctor was not negligent on his part, and Anita did get the right medical care, this would not have occurred.
17. The appropriate case which addresses this matter is R v Jordan. The poor medical service he got at the hospital was responsible for his death. He got wounded by the defendant, but died as a result of an infection as the wound had started to heal.
Conclusion
18. This appeal should be allowed and heard as it renders the defendant’s conviction unsafe. The sado-masochistic activity occurred with Anita’s consent and the defendant had no intention to harm his partner. Anita’s injuries were a result of a breach of medical care. The doctor’s actions broke the chain of causation, hence he is the one liable for Anita’s condition at present.