R v McCormack
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE FENTON ATKINSON |
| Judgment Date | 10 June 1969 |
| Judgment citation (vLex) | [1969] EWCA Crim J0610-3 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 165/69 |
| Date | 10 June 1969 |
[1969] EWCA Crim J0610-3
Lord Justice Fenton Atkinson
Mr. Justice Melford Stevenson
and
Mr. Justice James
No. 165/69
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. P.J. HUNT appeared on behalf of the Appellant.
MISS E. HARPER appeared on behalf of the Crown.
In December last at Hertfordshire Quarter Sessions before the learned Deputy Chairman this appellant was acquitted of unlawful sexual intercourse with a girl under the age of 16, but was convicted of indecent assault upon the same girl. He was sentenced to one month's imprisonment, but that was to run concurrently with a three-months sentence passed upon him one month before for a different class of offence.
He now appeals against conviction on a certificate given by the learned Deputy Chairman, and the certificate was granted on two different points: (1) Was he right in ruling that he had no discretion not to direct the jury on an alternative offence where the offence charged in the indictment amounted to or included such alternative offence irrespective of whether the prosecution had at any stage of the trial invited the jury to consider the alternative offence; and (2) Was he right in directing the jury to the effect that where there was no evidence of hostility a charge of indecent assault on a girl of this age might yet lie? Those were the two points.
The facts, shortly were these. The girl, called Pauline Ralph, was aged 15, and the accused man was 22. It was common ground that they spent the night of the 10th/11th August 1968 in bed together. In the same room in another bed there was another couple of similar ages. The young man in that case pleaded guilty to two counts of unlawful sexual intercourse with his young girlfriend, and he was fined.
The girl Pauline said that with her full consent the appellant had intercourse with her, and she said that she had in fact just finished menstruating the day before.
The appellant had two defences to put forward: (1) he was under the age of 24, and he claimed that he believed (and had reasonable grounds for believing) that the girl was over the age of 16. The evidence on that appears to have been extremely sketchy. The issue was left to the jury, but it appears really that he had no thoughts about the matter of the girl's age at the relevant time. But his second defence was that he did not in fact have intercourse with the girl. He said certainly that he had got into bed with her with that intention in his mind, but he had then discovered she was menstruating (she was wearing some sort of pad) so that he did not attempt intercourse. But he said himself in the plainest terms that they had indulged in certain acts of sexual intimacy, including this, that he admittedly on his own evidence had inserted a finger into the girl's vagina. It might be thought that manifestly on his own admission he had been guilty of an indecent assault, the girl's consent in this context being no answer.
Of course, as has been held many times, the statutory defence now contained in Section 6(3) of the Sexual Offences Act 1956 is only applicable to the full...
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Faulkner v Talbot
... ... 1017 ; [ 1953 ] 2 All E.R. 644 ; 37 Cr. App.R. 137 , D.C ... Fairclough v. Whipp [ 1951 ] 2 All E.R. 834 , D.C ... Rex v. Hare [ 1934 ] 1 K.B. 354 , C.C.A ... Reg. v. Mason ( 1968 ) 53 Cr. App.R. 12 ... Reg. v. McCormack [ 1969 ] 2 Q.B. 442 ; [ 1969 ] 3 W.L.R. 175 ; [ 1969 ] 3 All E.R. 371 ; 53 Cr. App.R. 514 , C.A ... Reg. v. Sutton (Terence) [ 1977 ] 1 W.L.R. 1086 ; [ 1977 ] 3 All E.R. 476 ; 66 Cr. App.R. 21 , C.A ... Reg. v. Upward (unreported), October 7, 1976, ... ...
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