R v Malone

JurisdictionEngland & Wales
JudgeLORD JUSTICE ROCH
Judgment Date01 May 1998
Judgment citation (vLex)[1998] EWCA Crim J0501-1
Docket NumberNo. 9701123 X3
CourtCourt of Appeal (Criminal Division)
Date01 May 1998

[1998] EWCA Crim J0501-1

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

The Strand

London WC2

Before:

Lord Justice Roch

Mr Justice Sachs and

Mr Justice Collins

No. 9701123 X3

Regina
and
Thomas Patrick Malone

MR R GERMAIN appeared on behalf of the Appellant

MR AE WILLIAMS ( 23.4.98) & MR AGEROS ( 1.5.98) appeared on behalf of the Crown

1

Friday 1st May 1998

LORD JUSTICE ROCH
2

On the 5th February 1997 following a trial lasting six days at the Chelmsford Crown Court before Mitchell J, the applicant was convicted of rape, Count 1 in the indictment and sentenced to 6 years imprisonment with an order under s. 44 of the Criminal Justice Act 1991. The jury were discharged from returning a verdict on Count 2 a charge of indecent assault.

3

At the trial there were the following issues for the jury to decide:

4

First, whether the appellant had had sexual intercourse with the complainant a girl of 16.

5

Second, whether, if the jury concluded that sexual intercourse had occurred, the prosecution had proved that the sexual intercourse took place without the complainant's consent.

6

Third, if the jury were satisfied as to the occurrence of sexual intercourse without the complainant's consent, it was proved that the appellant at the time knew that she was not consenting or was reckless as to whether she was or was not consenting.

7

The single judge refused the appellant's application for leave to appeal his conviction. Leave was given by the full court on a renewed application on the 20th February this year.

8

The complainant, Catherine W lived with her mother in a maisonette in Basildon. She was friendly with the appellant and his common law wife Charlene and their two children and would from time to time baby sit for them. The appellant and his family lived close to Mrs W's maisonette.

9

There was evidence, that when at the appellant's home, the complainant had been shown pornographic books and videos together with nude photographs of the appellant, by the appellant, and that the appellant had made suggestive remarks to the complainant. The complainant's evidence was that she had shown no interest in the pornographic material and that she had not said or done anything to encourage the appellant, because she was not interested in him. The appellant's evidence was that the complainant had behaved as though she was interested in him.

10

On Saturday 11th November 1995 the complainant's mother was away for the day. She was not expected to return home until the late evening. During the early evening the complainant met various friends and according to the evidence of two of those friends, S and V had said that she was pregnant by her then boyfriend, a twenty year old bus driver called "Danny". One of those witnesses, V added that the complainant was concerned as to how she could tell her mother that she was pregnant.

11

During the course of the evening the complainant acquired bottles of wine and drank so that she became incapable of walking. She had to be taken to her home by those two of her friends assisted by S's step-father in his motor car. It was the evidence of S that in the car the complainant called out "Tom" and gave the number of the appellant's house. In the street where the complainant lived, the car was stopped and S went to the appellant's house and asked him to come to help carry the complainant into her home. He did so and with S's step-father carried the complainant into the maisonette where she lived and up the stairs into her bedroom laying her on her bed. The two men then returned downstairs and the complainant was undressed on her bed by her two female friends. She was left wearing panties and a bra lying on her bed covered with the bed quilt.

12

At that point the two girl friends and S's step-father left the maisonette. The appellant went up to the complainant's bedroom, he said, for the purpose of seeing that she was not being sick and not likely to vomit and choke According to his evidence he heard the complainant calling his name and her state he described as "sort of in and out of consciousness". She asked for water and he brought her some water and helped her to drink it. She started gagging and fearing she was going to be sick he fetched a towel from the bathroom which he placed on the floor beside the bed.

13

The complainant denied that the appellant had been asked to bring her a glass of water or that he had helped to drink it or that she had called his name. Her account was that she was aware of someone sitting on her bed but not aware that it was the appellant. That person had started to stroke her face and had then pulled the quilt away from her. She had pulled the quilt back to cover herself and the person on the bed had said something about only seeing her body when she was drunk. It was when this was said that she realised the person on her bed was the appellant. The appellant again pulled back the quilt and removed her knickers. The complainant said that she did not consent to that but on account of her condition she was not able to resist. She then heard the applicant undoing his zip and then undoing his belt. The applicant climbed onto the bed and put two fingers into her vagina. It was that action which formed the basis of the charge of indecent assault in Count 2 in the Indictment. The appellant, according to the complainant's evidence, then inserted his erect penis into her vagina. That caused her considerable pain and as a reflex action she kicked out with her left leg against the appellant's chest and began to call out the name of the appellant's common law wife Charlene. She did that to frighten him off. She remembered seeing the appellant pulling up his trousers. There was a knock at the front door and she heard Charlene's voice. She started screaming for Charlene. Charlene came into her room and she told Charlene that the applicant had tried to get on top of her. A short while later the complainant's mother returned home and as a result of speaking to her daughter and to Charlene she telephoned the police.

14

The evidence of the complainant's mother was that her daughter did not complain that she had been raped or indecently assaulted. Her daughter had repeatedly said that her mother had not been there and would not have understood. She had, at the police's suggestion, got her daughter to dress so that she could be taken to the hospital. Having dressed the complainant went back to bed and fell asleep again so that the suggested visit to a hospital came to nothing.

15

No medical examination of the complainant occurred until the 15th November. That medical examination revealed a bruise on the inside of the complainant's thigh, which in the light of the evidence of how the complainant had fallen down when drunk and had had to be manhandled to get her home and on to her bed, was of no significance. The doctor was not able to say whether the complainant had had sexual intercourse on the 11th November. The complainant told the jury that she had had sexual intercourse with a man whom she would not name, but who was not the appellant and who was not Danny, on the evening of the 14th November; a curious thing for her to do when she knew she was to be medically examined the following morning.

16

We turn now to the appellant's account both in his interviews and in his evidence. In some ways the appellant's account agreed with the evidence of the complainant with regard to her condition on the evening of the 11th November. His account of what occurred in her bedroom, however, was markedly different from that of the complainant, although it did agree with her account on some details.

17

The appellant described seeing the complainant in the back seat of the car. Spit was coming down from her mouth. She was slouched. "She appeared to be out for the count". He helped take her up stairs and put her on her bed.

18

After S and her step-father and V had left he went up stairs to check that the complainant was all right. He described her as being "sort of in and out of consciousness". He told the jury that he sat on her bed and just chatted to her. The complainant asked him for water and he brought her a glass of water and helped her drink some of it. The complainant had started gagging so he went to find a bucket but could not find one and ended up obtaining a dirty towel from the bathroom and placing it on the floor beside the bed. As he did that the complainant was fumbling under the blankets. The next moment he had a pair of knickers flung at him. The complainant at that stage was giggling. He sat on the bed and the complainant took his right arm and put his fingers in her mouth. She sucked his fingers which he understood to be a sexual advance. She then took his hand and put it under the quilt and guided it onto her vagina giggling at him. At that stage he thought that sex could be on the menu. And then he told the jury "The state she was in it was like me taking advantage. It crossed my mind to have sex. That is why I undid my belt." He went on to say that her pubic hair felt damp and he believed that she had had sex with someone earlier that evening. She kept calling him "Danny". He kept saying "No it is Tom" That happened three or four times. She put her arm round him and tried pulling him towards her and at that moment he pulled his right hand away from her vagina. The complainant was saying "On me. On me." The first time she pulled him towards her he leant over and kissed her on the forehead and the second time she did that he kissed her on the lips. His evidence to the jury was that the complainant knew it was him and that the complainant wanted sex with him. After kissing her...

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    • Malaysia
    • High Court (Malaysia)
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  • R v Bree (Benjamin)
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    ...and for a judge to explain the law relating to the voluntary consumption of alcohol (or drugs) by a complainant. Thus, for example, in R v Malone [1998] 2 CAR 447 the Court of Appeal upheld the direction: “She does not claim to have physically resisted nor to have verbally protested. She sa......
  • The Crown v Yasir Ifran Ali and Daaim Ali Ashraf
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    • Court of Appeal (Criminal Division)
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    ...or understanding of his or her role in the sexual relations and the true nature of what occurred. This issue was explored in Malone (1998) 2 Cr App R 447, when Roche LJ in giving the judgment of the court observed (at page 457 G): No doubt in order to obtain a conviction there will have to ......
  • R v Redmond (Gordon Brian)
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    • Court of Appeal (Criminal Division)
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    ...and knowledge was such that she was not in a position to decide whether to consent or resist. It was accepted that Malone [1998] 2 Cr App R 447 had overturned Howard to the extent that it suggested that there must be some evidence of resistance on the part of the victim. 20 It was submitted......
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6 books & journal articles
  • Female Rape—An Ongoing Concern: Strategies for Improving Reporting and Conviction Levels
    • United Kingdom
    • Journal of Criminal Law, The No. 71-1, February 2007
    • 1 February 2007
    ...Times (15 June 1993).38 R vF[2002] EWCA Crim 2936.39 [1994] Crim LR 531.40 [1982] QB 320.41 Rv Larter [1995] Crim LR 75.42 Rv Malone [1998] 2 Cr App R 447.Female Rape—an Ongoing An apparent consent could also be vitiated where the complainantwas deceived as to the identity of the accused or......
  • The Emotional Dynamics of Consent
    • United Kingdom
    • Journal of Criminal Law, The No. 79-6, December 2015
    • 1 December 2015
    ...As in Jheeta, above n. 41.50. Ashworth and Horder, above n. 10 at 351.51. De Than and Heaton, above n. 10 at 132; cf Malone [1998] 2 Cr App R 447.52. Ormerod and Laird, above n. 10 at 823.53. De Than and Heaton, above n. 10 at 132–133; Bree [2007] EWCA Crim 256, [2008] QB 131; C. Elliott an......
  • Ten years on
    • United Kingdom
    • Journal of Criminal Law, The No. 79-1, February 2015
    • 1 February 2015
    ...the Crown 434) or simply ‘againsther will’ (1 Hale’s Pleas of the Crown 628).6. [1982] QB 320.7. Ibid. at 331.8. [1992] 1 AC 599.9. [1998] 2 Cr App R 447 at 457.10. Above n. 6 at 332.Sjo¨lin The effect of thisapproach was an absence of clarity and consistency as to the meaning of consent,le......
  • Stealthing in Irish Law: Legal Solutions for a Unique Sexual Violation
    • Ireland
    • Hibernian Law Journal No. 21-2022, July 2022
    • 12 July 2022
    ...Criminal Law Journal 72, 78. Criminal Law (Sexual Offences) Act 2017, s 9(2)(b). The common law position is stated in R v Malone [1998] 2 Cr App R 447. McGovern (n 25) 74. McGovern (n 25) 75. Davis (n 4) 997. Stealthing in Irish Law: Legal Solutions for a Unique Sexual Violation 101 includi......
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