R v Haughian
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE O'CONNOR,JUDGE HARRISON-HALL |
| Judgment Date | 23 January 1985 |
| Judgment citation (vLex) | [1985] EWCA Crim J0123-1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 23 January 1985 |
| Docket Number | Nos. 7060/B/83 and 7061/B/83 |
[1985] EWCA Crim J0123-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice O'Connor
Mr. Justice Mars-Jones
and
Mr. Justice Beldam
Nos. 7060/B/83 and 7061/B/83
MR. D. PUGSLEY appeared on behalf of the Appellants.
MR. D. JONES appeared on behalf of the Crown.
REASONS FOR JUDGMENT
On 26th October 1984 we gave Pearson leave to appeal, heard the appeals against conviction of both appellants and dismissed them. We now give our reasons for so doing.
On 1st December 1983 in the Crown Court at Warwick the appellants were convicted of rape and sentenced to three years' imprisonment. They appeal against conviction.
Intercourse was admitted, lack of consent was denied. There are two main grounds of appeal: (1) that the learned Judge failed to direct the jury that a genuine but mistaken belief in consent would be a defence; (2) the learned Judge misdirected the jury in that he failed to make clear that a subjective test was appropriate when considering recklessness.
There is clear authority in this Court that a direction on genuine but mistaken belief in consent is not required in every case where the issue of consent is before the jury: R. v. Taylor (unreported, 8th June 1984). So the question on this ground is whether the facts and circumstances of the case at the end of the evidence were such that a direction on genuine but mistaken belief was required.
There was no dispute between the complainant and the appellants as to what had happened on the night of 3rd April 1983. They were in the Miners Arms at closing time. They were known to each other. There was no suggestion that either man had ever made any sexual advance to the girl before. Pearson had given her a lift home on two or three occasions, always with other people in the car.
It was a wet night and at closing time she asked Pearson for a lift home. He was with Haughian, but he agreed. They went to the car, the two men in front and the girl in the back. The car was driven some distance to a place described as a well known courting place. Pearson tried to kiss the girl, but was told to "get off". Haughian got in the back, tried to kiss the girl and chat her up, but she would have none of it and got out of the car on a wet night to walk home because, she says, Haughian told her to get out if she would not play the game. They all agree that she in fact got out.
The car was turned round and followed her down the road. She was invited to get in, being told that they would take her home. She did get in, but they did not take her home, they drove to a service station. After a time they drove to some site near some cooling towers, where Pearson got out to relieve himself. Haughian jumped in the back of the car and began to make love to the girl, but at that moment Pearson returned and asked for her knickers, which he proposed to hang on the cooling tower. She refused this request, but gave him her bra and he departed.
According to Haughian the girl then gave him an enthusiastic reception, stripped the lower part of her body, and actively joined in sexual intercourse. According to her she had refused but he took down her trousers, pulled off her knickers and had intercourse with her without her consent. While this was going on Pearson returned and said "save some for me".
According to the complainant, in desperation she asked Haughian to save her from Pearson, but he got out of the car and Pearson got in. She screamed, but saying "shut up and lie down" he pushed her down on the seat. She had her legs shut, but Haughian got into the driving seat and pulled her left leg over the back of it to open the gate for Pearson. Pearson's account was that he also received an enthusiastic welcome and that there was no question of her not co-operating, and both men denied that Haughian had pulled her legs apart.
Shy says that the front seat was in some manner let down and she was turned round onto it and while Pearson was having intercourse with her Haughian inserted his penis into her mouth. It is common ground that this happened, but according to Pearson she helped to put the front seat down so as to make the party more comfortable for all of them, and according to Haughian she was the one who voluntarily took his penis to her mouth.
Thereafter there was a change of scene. The girl was hauled onto Haughian and he had intercourse with her while she had oral sex with Pearson. Pearson cannot remember this episode, but they agree that by now the girl was stark naked and that they drove off to the service station, Haughian driving with Pearson and the girl in the back of the car. According to her he had intercourse with her yet again, according to him it was just a friendly warm cuddle.
Before going to the service station for the second time it is right that she got out of the car to relieve herself, but she was stark naked at the time and it is not surprising that she got back into the car. Lastly they all agreed that just before she got home the men asked her to go to London with them at the weekend. According to her she refused, according to them she agreed to meet them at the Miners Arms the next evening to discuss the trip to London.
The witness Williams said that when the complainant came into the house she was crying, distressed and at once complained that she had been raped.
Both the appellants made signed statements to the police. Effectively those statements tell the story from their point of view, which we have set out above. Concluding his statement Pearson said: "I would like to say that at no time did the girl ever tell me to stop making love to her. She had told me not to kiss her to start with, but that from when I got in the car and saw Tony making love to her, I thought it would be alright so I asked for some. She did ask me not to do one thing, that's French kiss her so I didn't. I didn't perform oral sex with her to my knowledge."
Haughian concluded his statement by saying, "As she got out of the car Reg said to her that we would have to go away for the weekend. She was smiling and laughing and said yes. At no time did we use any force and I'd just like to say that I'm ever so sorry if we upset her in any way but she gave us no real sign that she was not enjoying it and I shall make sure that nothing like this happens again. I realise that saying sorry is not going to make any difference whatsoever but I cannot do anything to alter what happened and I feel very sorry for the girl. That's about it."
At the beginning of his cross-examination of Pearson counsel for the prosecution tried to find out whether Pearson was saying, "she consented to have intercourse with me" or whether he was saying, "I accept now that she did not consent to have intercourse with me but at the time I genuinely believed she had consented". Having failed to establish that the witness understood the difference between these two propositions, there was some confusion as appears from the relevant passage in the cross-examination:
"Q. Mr. Pearson, I just want to make sure I know exactly what your case is. Are you saying that the girl did ever consent, or are you now saying that she did not consent but at the time you had intercourse you thought she was consenting: which is it? – A. The only words she said to me was 'Tony'. She never said, 'No', that it was not OK to have intercourse with her.
"Q. You were there. Do you say she was in fact consenting throughout, or do you say, 'No, she was not consenting but I thought she was'; which is it? A. I was not there throughout the whole of the evening.
"Q. You were there when you were having intercourse with her. A. Yes, I was.
"Q. So which was the situation: was she consenting to intercourse at the time you were there and the time you saw her with Tony, or are you saying, 'Now I know she was not consenting but I thought she was at the time'?
Is that not a matter for the jury to determine?
"I agree, but I will allow the question.
Which do you say is the situation?
"THE WITNESS: I thought she was consenting.
"Q. You were confident she was consenting? A. Quite confident, yes.
"Q. There was no doubt about it in your mind, was there, or was there a doubt as to whether she was in fact consenting? A. I would say she was consenting. There would be no doubt in my mind that she was consenting. She was never upset or distressed. The only words she did say was, 'Tony'.
"Q. And there is no room for error about it, is there? A. No, there is not.
"Q. She was not really consenting but you thought she was; the fact of the matter is she was in fact consenting? A. The way I took it, yes.
"Q. You said there is no room for error, did you not? You knew she was consenting; she was taking an active part enthusiastically in all this? A. Yes, she was.
"Q. So there is no question of a mistaken belief that she was agreeing? A. Yes.
"Q. She was enjoying it? A. Yes.
"Q. With enthusiasm? A. Yes."
Despite the confusion in the middle of this series of questions, we are quite satisfied that at the end of the day both these appellants were saying "she consented", and indeed, if their version of how it all happened was accepted, she did consent. Equally if her version of how it all happened was accepted, the prosecution case was that the appellants knew she was not consenting to intercourse.
The learned Judge directed the jury on the elements of the crime of rape in the following terms:
"The charge in this case is one of rape. So far as that is...
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