rule ->

define: 'whoever shall unlawfully and maliciously wound or cause GBH to any person by any means whatsoever with intent to do some GBH or with intent to resist arrest or prevent lawful apprehension or detainer'

GBH, defined in DPP V SMITH , 'really serious harm'

BROWN - consent is not a defence to ABH or wounding, in the context of sadomasochistic activity,

EMMETT - consent is not a valid defence when the harm poses a significant risk

BOLLOM - assess the effect of injuries on the victim

WILSON - consensual activity between husband and wife, in the privacy of their matrimonal home

apply ->

unlawfully and maliciously wound or cause GBH -> vaginal trauma, severely fractured eye socket, extensive bruising and internal injuries

Hayley was found with serious and disabling injuries

intent to do some GBH -> Nathan admitted to causing the injuries deliberately

DEFENCE

- Hayley had previously expressly consented to the activities; Nathan genuinely believed this consent to be genuine consent.

- Consensual activities in a matrimonal home are okay. Hayley and Nathan eventually started a relationship - Hayley was hoping for romance.

- Article 8 - right to private life -> need to allow freedom of choice.

- All activities done by Nathan to Hayley were within the boundaries of the consent.

PROSECUTION

- Hayley was a young student, and Nathan is older and wealthier. Hayley may have felt under duress to agree to Nathan's request (Hayley could be seen as vulnerable)

- BROWN, sadomasochistic is not in the public's interest

- EMMETT, consent is not a valid defence when harm poses a significant risk - Hayley was found with serious and disabling injuries

- Hayley had consented to the previous activities, not those introduced later on that had caused her injuries.

GBH? - Really serious harm (DPP v Smith) Wound - Breaks continuity of the skin (Eisenhwower)

Grundy - combination of injuries - GBH

Defence - consensual

Wilson - consensual activity between a husband and wife if their matrimonial home - courts will not interfere if harm is caused.

We are told that they 'eventually started a relationship' and that 'Hayley was hoping for romance'. They are therefore in a stable relationship equivalent to a husband and wife relationship in Wilson.

Some of the injuries may have unforeseen (Slingsby)

Art 8 - right to private life.

Need to allow freedom of choice to make decision in a civilised democratic society without interference from the law even if that decision is regretted. Should be entitled to make decisions about our own bodily integrity (Julie Tolmie)

Prosecution -

Brown - Quote directly from the passage in Brown - cult of violence is not part of a civilised society.

Emmett - risk of permanent injury outweighed consent.

Hayley young student - imbalance of power. She is vulnerable. The reason for the relationship was not love an affection as stated in Wilson requiring marriage, but purely for sex from Nathan's perspective. Allows exploitative nature of the relationship if consent is a defence.

Art - right to Life, art 3 - inhumane and degrading treatment.

Society picks up the tab.