Judicial Committee of the Privy Council
| DOI | 10.1177/002201838404800404 |
| Published date | 01 November 1984 |
| Date | 01 November 1984 |
| Subject Matter | Case Notes |
JUDICIAL
COMMITTEE
OF
THE
PRIVY
COUNCIL
"SEXUAL
INTERCOURSE"
IN
RAPE
UNDER
CRIMES ACT 1961
Kaitamaki v. The Queen
The
appeal in Kaitamaki v. The Queen [1984] 3W.L.R. 137,
concerned two main issues: (1) the
nature
of the offence
of
rape as
defined in sections 127
and
1280fNew
Zealand's
Crimes
Act
1961;
and (2) the jurisdiction,
under
the Offenders Legal Aid Act 1954,
of the
Court
of
Appeal
of New
Zealand
to
grant
legal aid so as to
enable aperson to prosecute an appeal from
that
Court
to the
Judicial Committee
of
the Privy Council.
The
defendant
was charged, inter alia, with
one
offence of rape
contrary to section 128 of the Crimes Act 1961 which defines rape
and provides, inter alia, that:
"(
1)
Rape
is the act of a male person
having sexual intercourse with a woman or
girl-(a)
Without
her
consent.
...
"
The
Crown's case was
that
the
defendant
broke
into a
dwelling-house
and
twice
raped
ayoung woman who was an
occupier of the premises.
There
was no dispute
that
sexual
intercourse had
taken
place on the two occasions, but his defence
was
that
the woman consented
(or
that
the
defendant
honestly
believed
that
she was consenting). His evidence as to the second
occasion was
that
after
he
had
penetrated
the woman he became
aware
that
she was
not
consenting; he did not, however, desist from
intercourse. In summing up, the trial judge directed the jury
that
if,
having realised the woman was
not
willing, the
defendant
continued
with the act of intercourse, it then became rape.
The
defendant
was
convicted and appealed to
the
Court
of
Appeal
of New Zealand.
The
Court
of
Appeal
by a majority upheld the
judge's
direction and
dismissed the appeal.
The
defendant
subsequently applied to the
Court
of
Appeal for legal aid to prosecute an appeal to the Judicial
Committee
but
the court dismissed the application holding
that
it
had no jurisdiction to
grant
it
under
section 2(1) of the Offenders
Legal
Aid
Act
1954
and
that
the regulations made
under
section
3( 1) of the
1954
Act did
not
make provision for legal aid for appeals
378
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