R v Kimber
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON |
| Judgment Date | 26 May 1983 |
| Judgment citation (vLex) | [1983] EWCA Crim J0526-1 |
| Docket Number | No. 2151/A/82 |
| Court | Court of Appeal (Criminal Division) |
| Date | 26 May 1983 |
[1983] EWCA Crim J0526-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Lawton
Mr. Justice Michael Davies
and
Mr. Justice Sheldon
No. 2151/A/82
MR. J. ISHERWOOD appeared on behalf of the Appellant.
MR. N. PASCOE appeared on behalf of the Crown.
(As approved by the Judge)
On 7th April 1982, in the Devizes Crown Court, this appellant, David Michael Kimber, was convicted of an indecent assault on a woman and sentenced to 6 months' imprisonment suspended for 2 years and fined £100. He appeals against his conviction by leave of the single judge.
The appeal raises these points. First, can a defendant charged with an indecent assault on a woman raise the defence that he believed she had consented to what he did? The trial judge, Mr. Recorder Smythe, Q.C., ruled that he could not. Secondly, if he could, did the jury have to consider merely whether his belief was honestly held or, if it was, did they have to go on to consider whether it was based on reasonable grounds? Another way of putting these points is to ask whether the principles upon which the House of Lords decided D.P.P. v. Morgan (1976) A.C. 182, should be applied to a charge of indecent assault on a woman.
The victim was a female patient in a mental hospital. Her mental disorder had been diagnosed as schizophrenia. She was aged 56. We will refer to her as "Betty". Although she was not a defective within the meaning of sections 7 and 45 of the Sexual Offences Act, 1956 (as amended by the Mental Health Act, 1959, section 127) she was suffering from a severe degree of mental disorder. She had been a patient in the mental hospital since 1957. Her movements and appearance were odd: she made strange movements with her face and mouth. She tended to give one word answers to questions. She was usually quiet and withdrawn but could become manic and aggressive without provocation. Most days she had to be helped to eat and dress. It must have been obvious to anyone of sound mind meeting her that she was suffering from a severe degree of mental disorder. She had never been known to take any erotic interest in men or to respond to sexual stimuli. The hospital doctor in charge of her said that it was highly unlikely that she would be capable of giving comprehending consent to sexual advances, but she might agree without understanding the full implications of what she was agreeing to. Her condition was such that the prosecution did not call her as a witness.
On 1st August 1981, she was walking by herself in the hospital gardens near the cricket ground when she was approached by the appellant. He had come to the hospital to visit a relative who was a patient. A ward sister said in evidence that she saw the appellant talking to Betty. He had his hands cupped. There were coins in them and he went through the motions of counting them out. The appellant then nodded in the direction of a lane and walked down it. Betty followed a pace or so behind. Ten minutes later the ward sister saw her again. She was naked from the waist down, her dress having been rolled up to her waist. She was screaming loudly and was so distressed that she had to be given a tranquillizer injection and put to bed. Her knickers were found later in the lane. A hospital porter who had been alerted by the ward sister that something untoward might have happened saw the appellant in the grounds. He stopped him and asked him if he had been near the cricket ground with a woman. He said he had not. This he admitted at his trial was a lie. Later the same day he was interviewed by the police. At first he denied that he had been involved in any incident. Later, according to the police witnesses, he admitted trying to have sexual intercourse with Betty but said he had not succeeded. He told them that she had followed him and "chucked" her knickers on the ground and that he had interfered with her in a way which clearly amounted to an indecent assault if it had been done without her consent. He admitted to them that he knew she was a patient. He was asked whether she had said anything. He replied:
"No, she did not. She just started mumbling. I couldn't understand that. She was mumbling all the time, really stupid." Then came these questions and answers:
"(Q) You accept that this woman was mentally subnormal? (A) Well I should think so, the way she was mumbling and that. (Q) Did you ask her to have intercourse with you? (A) No, I did not. (Q) Why? (A) Silly thing to do isn't it - ask a woman for intercourse.
The appellant gave evidence and the substance of what he said was this. When he was near the cricket ground Betty started to follow him. She had some knickers in her hand which she threw down. She lay on the ground. She was mumbling. According to the learned Recorder's note of his evidence he said:
"I was going to have sexual intercourse, but it was too tight so I decided not, I did not think about what was in her mind. I knelt between her legs playing with her. There was no response. She was just lying there mumbling all the time. I never scratched her …..I thought she was an unstable woman because she kept mumbling. As far as I was aware, she knew what was going on. When she lay down, I thought she was giving consent to have sexual intercourse and so she lay down with her legs open…..I do not agree when I heard her mumbling it was clear to me I was trying to make love to a sick woman. I was not really interested in Betty's feelings at all."
At the close of the prosecution's case the learned Recorder ruled that the sole issue for the jury was whether Betty had given her real and genuine consent. He directed the jury to this effect. He said:
"It is no defence that the defendant thought or believed Betty was consenting. The question is: was she consenting? It does not "matter what he thought or believed."
Before this court it was accepted by counsel for the prosecution, Mr. Pascoe, that this direction was wrong, The learned Recorder had not had his attention drawn to R. v. Tolson (1889) 23 Q.B.D. 168. Before us Mr. Pascoe submitted that the jury should have been directed that the appellant had a defence if he had believed that Betty was consenting and he had had reasonable grounds for thinking so. On the facts the appellant could not have had any such grounds with the result that, despite the learned Recorder's misdirection, there had been no miscarriage of justice. We agree that on the evidence the appellant had no reasonable grounds for thinking that Betty was consenting and no jury other than a perverse one could have thought he had. Mr. Isherwood for the appellant argued, relying on the decision in Morgan, that the sole issue was whether the appellant had honestly believed that Betty was consenting. Unless the jury were sure that he had not so believed, he was entitled to be acquitted. The grounds for his belief were irrelevant save in so far as they might have assisted the jury to decide whether he did...
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