R v Osborne

JurisdictionEngland & Wales
Date1905
Year1905
CourtCourt for Crown Cases Reserved
[CROWN CASE RESERVED.] THE KING v. WILLIAM HENRY OSBORNE. 1905 Jan. 28; Feb. 20. LORD ALVERSTONE C.J., KENNEDY, RIDLEY, CHANNELL, and PHILLIMORE JJ.

Criminal Law - Evidence - Indecent Assault - Particulars of Complaint made by Prosecutrix - Complaint elicited by Question - Admissibility.

The prisoner was indicted for an indecent assault on a girl under the age of thirteen years, whose consent to the act was therefore immaterial. At the trial evidence was admitted of the answer given by the girl to a question put by another child, in the absence of the prisoner, as to why the girl had not waited for the other child at the prisoner's house. The girl's reply was a complaint of the prisoner's conduct to her:—

Held, that the evidence was admissible, not as evidence of the truth of the charge alleged, but as corroborating the credibility of the girl and as evidence of the consistency of her conduct.

CASE stated by the chairman of the Worcestershire Quarter Sessions for the consideration of the Court for the Consideration of Crown Cases Reserved.

The prisoner William Henry Osborne was indicted at the Worcestershire Quarter Sessions on January 2, 1905, on an indictment containing two counts, the first being under s. 52 of the Offences against the Person Act, 1861, for an indecent assault upon Keziah Parkes, and the second charging him with a common assault upon her.

It appeared that the prisoner kept a fried fish shop at Kidderminster, at a distance of five minutes' walk from where Keziah Parkes, the prosecutrix, resided, and on the day in question Keziah Parkes, a girl of the age of twelve years, with her sister Nelly Parkes, aged eight, and a girl named Mary Moule, aged eleven, went to the prisoner's shop about 3.30 P.M. to buy fried potato-chips. They had been in the habit of going to the shop and selling dripping to the prisoner. Mary Moule asked the prisoner if he wanted any dripping, and he replied that they could fetch him some if they would come back at once. Mary Moule and Nelly Parkes went to fetch the dripping. Keziah Parkes asked if she should go with them, but the prisoner said, “No, stop with me.” As soon as the other girls were gone, prisoner took Keziah Parkes into the back-kitchen, pulled her on to his lap, and indecently assaulted her. Keziah Parkes offered no resistance or objection. The prisoner left the kitchen to attend to a customer in the shop, and, when the customer left, the prisoner returned to the kitchen and asked Keziah Parkes to come back on his lap, but she refused and ran off towards home. On her way home she met Mary Moule and her sister coming back to the shop, and they asked her “why she was going home and why she did not wait till they came back.” She had not spoken to them when this question was asked. Mary Moule was called, and was asked, when she met Keziah Parkes in the street, “Did you speak to her?” Moule replied, “Yes, I asked her why she did not stop for me.” The question was then asked, “What did she say?” Counsel for the prisoner objected to this question on the grounds: (a) That an answer given by a prosecutrix to a question in a charge of indecent assault could not be given in evidence, as such an answer was not a complaint within the meaning of Reg. v. LillymanF1; and (b) that, as the prosecutrix was under the age of thirteen, her consent was not material to the charge, and consequently any statement she made, whether in reply to a question or not, could not be given in evidence, as the rule in Reg. v. LillymanF1 applied only to cases where want of consent was a material element in the charge. Counsel for the prisoner relied upon the decision in Reg. v. MerryF2, that an answer to a question was not a complaint; and also upon the decision in Rex v. KinghamF3, that where consent is not a material element the statement of the prosecutrix is not admissible. Counsel for the prosecution relied upon the decision in Reg. v. KiddleF4, where it was decided that the rule in Reg. v. LillymanF5 applied to cases where the girl on whom the offence was alleged to have been committed was of such tender years that the Court directed her evidence to be taken, but not upon oath, and where the question of her consent was immaterial. The chairman, being of opinion that the conduct of the prosecutrix in running away home and not waiting for her companions was part of the res gestae, and that her statement would be evidence why she ran away home, allowed the question to be put, on the authority of Reg. v. FollyF6 and Reg. v. Kiddle.F4 Moule replied to the question why the prosecutrix did not stop for her, “Because she did not like the prisoner, and would not go near him again, as he unbuttoned her drawers. That was all she said.”

The prisoner when charged at the police station said, “She came and sat on my lap herself. She has done it many times, and is more to blame than me.”

In summing up the chairman told the jury that it was immaterial whether the girl consented or not to what was done to her, but that they ought not to convict unless in their opinion there was corroborative evidence, and that the only corroboration of the girl's story was the statement of the prisoner at the police station. He did not refer in the summing-up in any way to the answer given by the girl Keziah Parkes to the question asked her by Mary Moule.

The prisoner was convicted, and judgment was postponed.

The questions of law for the Court were: (1.) Whether the fact that a statement made by a prosecutrix to a third person immediately after the alleged indecent assault was in answer to a question from such person prevented such statement being given in evidence in accordance with the rule laid down in Reg. v. Lillyman.F5 (2.) If such a statement could be given in evidence, although it was in answer to a question, did the fact that the offence charged was one where the consent of the prosecutrix was immaterial render such statement inadmissible? (3.) Could such a statement be given in evidence when the prosecutrix did not state that the act charged was done against her will?

J. R. V. Marchant,...

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