McGann (O'neill) v R
| Jurisdiction | Jamaica |
| Judge | HARRISON, J.A: |
| Judgment Date | 21 November 2008 |
| Neutral Citation | JM 2008 CA 96 |
| Judgment citation (vLex) | [2008] 11 JJC 2102 |
| Court | Court of Appeal (Jamaica) |
| Date | 21 November 2008 |
RAPE - Leave to appeal - Whether there was consent
We are today fulfilling our promise made on July 9, 2008 to put in writing and hand down our reasons for treating this application for leave to appeal against a conviction for rape, as the hearing of the appeal. We allowed the appeal, quashed the conviction and set aside the sentence. We also directed that a judgment and verdict of acquittal be entered.
The appellant was convicted in the Home Circuit Court on April 4, 2005 before Sykes J. sitting with a jury who thereupon sentenced him to imprisonment for seven (7) years at hard labour.
On the Crown's case the victim was offered a lift by the appellant on the 9 th of June 2002. He was on his way to King Weston and she was on her way there to attend a dance. Whilst they were on their way he made a wrong turn and upon being asked where he was taking her, he responded that he was taking her to one of his friends. She told him she did not wish to go with him and that he should stop the car but he continued driving. She began to cry. She opened the car door in the vicinity of Castleton Police Station but he closed it and told her, "b..c.. gal, tap di noise in a mi car." He continued driving, turned at Grandy Hole Bridge and asked her if she knew what was a "battery". She did not respond and he told her that is when a group of men have sex with the woman. On reaching near Gibbs Hill he inserted his finger into her vagina. He drove to a lonely place, stopped the car and told her to come over to him. She refused and he grabbed her and told her to come out of the car. He came out, dragged her from the car and took her behind the car where he took off her panty and told her to bend over. She told him no and he held her around her waist and had sexual intercourse with her without her consent.
After he had sexual intercourse with her she went back in the car and befriended him so that he could take her home. He told her that he had sex with her because he heard that she was friendly with the policeman known as "Muscle Daddy". He drove off then stopped at a shop and purchased a drink of Smirnoff Ice for her.
He resumed driving and when he reached near to where the dance was held he stopped and she alighted from the car and walked away. She saw him later at the dance but made no report to anyone there. She also did not make a report to anyone at her home. However she telephoned a Cons. Burey subsequently and spoke to him.
On the Monday following the dance she went to see a friend and on her way back home she saw the applicant. He stopped his car; alighted from it and told her that someone had told him that she had gone to the station. Later that day she went to the police station and made a report.
The defence was one of consent. He told the court that the complainant and himself were both travelling in his motor car during the night of June 9, 2002. She was driving the vehicle at one stage but on reaching a certain point along the Junction road he took over because she was driving too slowly. He was heading to Gibbs Hill in order to check on one Donovan. She was seated in the front passenger seat and while he was driving she started touching him on his penis. He then started to touch her on her breast and told her to take off her panty. She did so and he inserted his finger in her vagina. He then turned on the Gibbs Hill road and stopped the car. He said he was getting uncomfortable because she was coming over on him. They started kissing and he told her that he knew of a better place. He started to drive again and she returned to the passenger seat. Further along the road he stopped in the vicinity of a water tank. They started kissing and the complainant came over into his seat. She pulled down his shorts and sat in his lap facing the front windscreen. Her head was touching the car ceiling and he told her to come out of the car. She opened the door and left her panties inside the car between the seats. They then had sexual intercourse for five to seven minutes. When they were finished they returned to the car. He said he did not force her and he did not threaten her in order to have sexual intercourse with her.
It was plain to see that the applicant having admitted sexual intercourse, the issue requiring detailed and correct directions, was whether the appellant honestly believed that the complainant was consenting to sexual intercourse.
There were three areas of complaint. The first ground of appeal states as follows:
"That the learned trial judge failed utterly to direct the jury as to how to approach inferences from...
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