R v Robinson

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Kerr, J.A.
• Judgment Date: 22 January 1982
• Neutral Citation: JM 1982 CA 6
• Docket Number: Criminal Appeal No. 109 of 1979
• Date: 22 January 1982

Court of Appeal

Kerr, J.A., Rowe, J.A., Carey, J.A.

Criminal Appeal No. 109 of 1979

R

and

Robinson

Appearances:

Mr. H.G. Edwards, Q.C. for the appellant.

Mr. F.A. Smith for the crown.

Criminal law - Rape — Appeal against conviction — Directions to jury —

Facts: The appellant was convicted of the rape of a 17 year old virgin. She suffered injuries to her vagina, multiple scratches and minor injuries to the body. The appellant asserted that girl had agreed to both oral and vaginal sexual intercourse and that there was consent. The question on appeal was whether the trial judge's omission to give direction as to mens rea resulted in a miscarriage of justice.

Held: That ever if there had been a misdirection any reasonable jury would inevitably have come to the same conclusion. Conviction upheld. Appeal against sentence allowed.

Kerr, J.A.

1 This application for leave to appeal from a conviction for Rape in the Westmoreland Circuit on May 31,1979, before Parnell, J. and a jury, was treated as the hearing of the appeal, the appeal was dismissed and the conviction affirmed. We now set out herein our reasons for so doing.

2 On Wednesday, February 28th, 1979, at about 5 p.m. the complainant, a schoolgirl of seventeen years of age, was in the village of Little London, in front of the Post Office with others, including her friend Nola Rayson. She was in need of transportation to her home at Negril. Along came the appellant driving his motorcar. Rayson said she stopped him and at her request he agreed to drive complainant to Negril. The complainant went in and to Rayson's parting instruction - ‘take care of her’ they set out in the direction of Negril.

3 According to the complainant after the other passenger left and she was then with him in the front seat, she had to object to his putting his arm around her. At Sheffield where he stopped to take on passengers she attempted to leave tendering money for her fare. He refused the fare and persuaded her to continue the journey with him.

4 At Negril the other passengers left before the car reached the area of premises - the Coconut Grove. The appellant then turned off into a lane, she opened the door and attempted to leave but he held her by the neck and started to strangle her, and ordered her to shut the door. The car drove on towards a deserted beach and stopped. It was now night.

5 Her account of what followed was of a humiliating and traumatic experience. He stopped the car near a lonely beach and ordered tier to take off her panties when she refused he started to strangle her and she struggled attempting to leave the car and was halfway out when he jumped on her back - and punched her with his fist, saying ‘you bitch you, a going give it to you hard and good and when I done with you I going take you and dump you in the sea’. Exhausted and afraid and to avoid further injury she went back in the car and assisted in removing her panties. He stripped her naked, sucked her private parts — and then he made his bruising attempts at intercourse. Whenever she tried to scream he would choke her. After this first session of about six minutes he came off. Then there was a repeat performance with the addition of his forcing his penis into her mouth. It was during the second round of his attempts to enter her he expressed surprise that she was a virgin.

6 He ceased his endeavours at intercourse which lasted over twenty minutes and at his insistence they set out for the beach. She seized the opportunity to run away into the bush. He chased and searched for her but in the thickness of the thicket he failed to find her and he returned to the car and drove off with her clothes, shoes, books and money amongst other thinks.

7 She wandered along the beach until she came to the premises of one Mrs. Gruber. According to Mrs. Gruber about 10 p.m. while at her business place The Negril Sands Club - she received certain information and looking towards the beach she saw the complainant sitting on the sand naked, cold and shivering. It had been raining earlier - she took her in, clothed her and gave her a drink. Complainant made a report to Mrs. Gruber who took her home in a taxi.

8 Dr. Campbell who examine her on March 1st, found that her vaginal membrane was intact and vaginal cavity could not admit one finger. The lips of the vagina were slightly swollen and there was tenderness at the entrance and a slightly bloody discharge. There were multiple scratches and minor swellings all over her body. The injuries to the vagina could be caused by an erect penis while the multiple scratches and minor injuries to the body wore consistent with her trying to get out of the bushes, Despite appellant's efforts, the complainant was still a virgo intacta'.

9 According to Constable Darby, the investigating officer, he saw the appellant on March 14th, and informed him of the complaint made about the incident of night of the 28th February. The accused then told him he was in Falmouth that night.

10 The sole issue in this case was consent.

11 The complainant according to the trial judge was vigorously cross-examined. Among the suggestions which were put in keeping with his defence, were that she and the appellant had been friends for some months having met at the Negril Beach the August before, and that they had seen each other several times; that she had been driven by him in his car on several occasions prior to that day; that they had met at Little London by arrangement; that she agreed to go to the spot on the beach that night, and that she consented to sexual intercourse oral and vaginal. All these suggestions were positively denied. The complainant was emphatic that he was a stranger and she only learnt his name from him that night.

12 The appellant, a married man living with his wife and six children and hitherto of good character in his evidence on oath in keeping with the cross-examination gave a history of his association with the girl. He spoke of occasions when he took her from school in his car, of the friendship maturing so that they were on kissing terms and sex was discussed but no intercourse occurred. He said that the meeting at Little London had been arranged a week before and she agreed to drive down to the beach with him that night. There according to him they caressed and fondled each other, made love, and that he had intercourse with her for five or six minutes. That while having intercourse she complained that he was hurting her, she said she did not want to be pregnant and afterwards she slapped him in the face for being rough. She made certain remarks which he thought referred to his wife and in anger he thumped her two or three times. He then invited her to go to the sea for a swim and they came out the car. On the way to the beach, she turned back saying she would soon return but she did not. After some minutes he called and looked for her but in vain. He eventually drove home. It was fourteen days after in Savanna-la-mar, that the police spoke to him about the affair. In cross-examination he denied the prosecution's case and in particular the telling to Detective Darby he was in Falmouth that night in question. He however said that when he found the complaint had left he made no enquiries of her either that night or anytime thereafter.

13 Of the grounds of appeal against conviction we propose to deal only with Ground 2 which merited careful consideration.

Ground 2:

14 “The directions on the law and facts as to Consent were inadequate. This was prejudicial to the defence.”

15 In support Mr. Edwards submitted that the learned trial judge in his directions to the jury omitted from the definition of rape an essential element, namely mens rea; that the mens rea in rape is the intention to have sexual intercourse with the complainant without her consent or recklessly not caring whether she consented or not. Further, that havingto the nature and conduct of the defence it was incumbent on the trial judge to have directed the jury that if the appellant honestly believed that the complainant consented even if he had no reasonable grounds for such belief he was entitled to be acquitted and that the burden of proving the absence of such belief lay on the prosecution. He cited in support a number of cases including Director of Public Prosecution v. Morgan [1975] 2 All E.R. p. 347; R. v. Cogan [1975] 2 All E.R. p. 1080; R. v. Flannery & Prendergast (1969) V.R. p. 31.

16 The learned trial judge in his directions gave the time honoured definition of rape thus (page 6):

“Now, Mr. Foreman and members of the jury, the indictment charges the accused man with rape and the particulars state, Kenneth Robinson, on the 28th day of February, 1979, in the parish of Westmoreland, had sexual intercourse with Angella Weise without her consent. Well, just as how the indictment had it, that is what rape is, it is where a man has carnal knowledge of a woman without her consent, by force, fear or fraud.”

17 In elaboration and to be specified he continued:

“As far as this case is concerned, the question of fraud is out, so it is a combination between force and fear, that is what she has been saying how he got, to have, intercourse with her that night. Now, a good defence to a charge of rape, just as the indictment says, is that the woman consent. So, you notice that what you have to decide in this case — there is no dispute, there is no challenge that the accused did have intercourse with her. She said so and he said so too. Where the dispute arises now, where the difference lies in this case: was it with or without her consent,…”

18 Of this definition Lord Hailsham in Director of Public Prosecutions v. Morgan (supra) at page 358 said:

“……, the appellants’ counsel had a fairly impressive list of authorities directly applying to the crime of rape and saying that the prohibited act is sexual intercourse without...