McKearney v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 16 January 2004 |
| Docket Number | No 10 |
| Date | 16 January 2004 |
| Court | High Court of Justiciary |
JC
LJ-C Gill, Lord Kirkwood and Lord McCluskey
Crime - Rape - Procedure - Solemn Procedure - Judge's charge - Honest belief - Mens rea - Appellant believing complainer was consenting to sexual intercourse when in fact she was not - Judge charging jury not to consider question of honest belief - No directions as to mens rea - Whether misdirection - Whether miscarriage of justice
The appellant was tried on indictment on a charge of rape. This complainer and the appellant had been in a relationship but were now living apart. The complainer awoke in the early hours of the morning to discover the appellant had forced entry into her home and was sitting astride her with his hands around her throat. There then a followed a series of assaults over a prolonged period in the course of which the appellant repeatedly threatened to kill the complainer and put his hands to her throat. The complainer took these threats seriously and was frightened for her life. Some four hours later when he appeared to have calmed down the appellant told the complainer to get into bed and get some sleep. She told him she did not want to. He told her then just to lie on the bed which she agreed to do, but had no intention of going to sleep. When they had got on the bed the appellant told the complainer to turn round because he wanted to rub her back. She complied with this request for fear of what he might do otherwise. He began to rub her back on top of her nightdress before putting his hand underneath. The appellant then started to rub his body up and down against the complainer who did not respond in any way because she was terrified. The appellant rubbed his penis against her bottom and inserted it into her vagina. Again the complainer did nothing because she was terrified. The appellant ejaculated. The complainer did not want to have intercourse with the appellant and he did not ask what her wishes were. She accepted that she had not resisted penetration and that she had made no complaint at the time.
In his police interview the appellant admitted breaking into the complainer's house, accepted there had been an argument in the course of which he grabbed her by the throat and said that while he could not remember he accepted the possibility that he had threatened to kill her. He admitted that he had intercourse with the complainer but insisted that she had encouraged him to do so. He did not give evidence and the issue of his genuine belief that the complainer had consented to intercourse was raised in his speech to the jury by the solicitor advocate representing him.
The trial judge did not direct the jury on the question of whether the appellant knew that the complainer did not consent to intercourse or was wickedly reckless on that matter. He directed them that they should not consider whether the appellant had genuinely and honestly believed that the complainer was consenting, and that if they took the view that there was intercourse and that it took place against the will of the complainer, then that was rape.
The appellant was convicted of rape and sentenced to a term of seven years' imprisonment. He appealed against conviction and sentence.
There were three grounds of appeal: (1) that there was a misdirection on the part of the trial judge in stating to the jury that they could not consider any question of 'honest belief' on the part of the accused that the complainer was consenting to sexual relations; (2) even if the complainer's evidence as a whole was such as to infer that the appellant had the necessary mens rea there was no corroboration of the mens rea of the appellant; and (3) in any event the trial judge failed to direct the jury that they were required to be satisfied that the Crown had proved the necessary mens rea on the part of the appellant.
The appellant argued (and the Crown did not challenge) that it was essential for the Crown to establish mens rea, that full proof of mens rea was required, and that mens rea might be established as a matter of inference from proven primary facts.
The appellant submitted that in order to establish the necessarymens rea the Crown had to prove that at the material time the accused knew that the woman was not consenting, or, at least, that he was recklessly indifferent as to whether or not she was consenting. That because the matter was fundamental, the jury had to be given express directions on this essential feature of mens rea as in any case in which the evidence provided a basis upon which the jury could hold that the man might have believed that the woman was consenting. It was argued that the whole circumstances of this case raised the possibility that the appellant did in fact believe that the complainer was consenting, (his saying that she did consent carried with it an implication that he believed she was consenting) and at the very least the jury were entitled having regard to the whole evidence, to approach the central issues relevant to proof of rape, on the basis that there was a long, significant gap between the earlier violence and the sexual intercourse. The directions given and the omission to give essential directions on mens rea and the burden and standard of proof in relation to mens rea, amounted to a material misdirection and the court should conclude on that basis alone that there had been a miscarriage of justice.
The Crown argued that the 'legal framework' of mens reawas not in dispute but the issue was how mens rea was to be treated in practice. An explicit direction on mens rea might not be required if the matter of mens rea was 'tied up with' the matter of the actus reus. The Crown argued that the jury were well entitled to regard the whole events from the time of the appellant's arrival until and including sexual intercourse as being one continuous chain of events in which the appellant's violence and menace overcame the complainer's will. The Crown argued that no issue of genuine belief as to consent had been raised in evidence and in any event given the jury must have rejected the appellant's account of what had happened in those circumstances the directions given were sufficient and there had been no miscarriage of justice.
Held that: (1) in this case one view of the facts the jury might properly have taken was that the sexual activity leading to full intercourse was a separate chapter of events from those involving the violence and menacing behaviour on the part of the appellant (para23); (2) there had been ample evidence that the complainer had said and done nothing to indicate to the appellant that she had not been consenting to intercourse (para 34); (3) whilst there had been room for the jury to form the view that the complainer had not consented to intercourse (the actus reus) the possibility that the appellant acted in the belief that she had consented, had not been excluded (para 34); (4) if the appellant had acted in that belief he would not then have possessed the mens rea that would have been essential to the commission of the crime of rape (para 34); (5) it was for the Crown to have established that he had the necessarymens rea (para 34); (6) the jury should have been given clear directions about the need for the Crown to have established mens rea by sufficient evidence, (full legal proof) (para 34); (7) the directions in this case had erroneously suggested to the jury that all that had been required for rape was that the woman had been subjected to sexual intercourse without her consent (para 34); (8) this material misdirection related to one of the fundamental elements of this crime of rape (para 34); (9) there had been a miscarriage of justice (para34).
Observed per Lord McCluskey that in any rape case in which there had been no evidence of the use or threat of force at the time of, or immediately preceding the sexual penetration, and the evidence provided some proper basis upon which the jury might hold that the man believed that the woman was consenting to intercourse, specific directions on mens rea, including directions about actual, honest belief, will be required (para 35).
Observed per the Lord Justice-Clerk (Gill) that: (1) in any case where there has been evidence of the use or threat of force the trial judge should direct the jury on what are now the three elements of the actus reus; and he should direct them that the mens rea of the crime consists of an intention on the part of the accused to have intercourse with the complainer, together with the knowledge on his part that she does not consent, or with recklessness on his part as to whether or not she does; and that the elements of the actus reus and of the mens rea arefacta probanda which the Crown must prove by corroborated evidence (para 9); (2) in any case where the use of force has not been an element in the Crown case, the question of the accused's knowledge or recklessness as to the complainer's consent and the question of his honest belief will be inextricable. The jury must consider whether or not the accused honestly believed that the complainer had consented and in all such cases the judge should give a specific direction on the point (para 12); (3) the authoritative decision of Smith v Lees has established that de recenti is capable of providing corroboration only to a specific element of the actus reus - it has never been suggested that such distress was capable of providing evidence of the existence of mens rea and it is difficult to see how distress could say anything of the accused's state of mind (para 16); (4) the question of whether the effects of the assault were spent by the time of the intercourse, with the result that the complainer was no longer frightened of the appellant, was a jury question and could not found a ground of appeal (para 18).
JOHN MCKEARNEY was charged on an indictment at the instance of Colin Boyd QC, Her Majesty's Advocate, the libel of which set a charge a rape. The appellant...
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