Mead v R

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: RON, J.A.
• Judgment Date: 14 November 1991
• Neutral Citation: MS 1991 CA 1
• Docket Number: Criminal Appeal No. 2 of 1991
• Date: 14 November 1991

Court of Appeal

Floissac, C.J. Byron, J.A. Joseph, J.A. (Ag.)

Criminal Appeal No. 2 of 1991

Mead

and

R

Criminal law - Rape — Appeal against conviction of rape and sentence — Whether defendant consented to sexual intercourse — Previous cohabitation of accused and victim — Judge's misdirection, to jury — Lack of corroboration of the complainants testimony that she did not consent to sexual intercourse — Evidence that intercourse had taken place could not be used on issue of consent to intercourse — Justice may not have been done — Verdict unsafe and unsatisfactory — Appeal allowed — Conviction quashed and sentence set aside.

JUDGMENT OF THE COURT:

1 On the 9th July 1991, the appellant was convicted of rape on the person of Elizabeth Loebman (the complainant) contrary to section 117 of the Montserrat Penal Code No. 12 of 1983 and was sentenced to five years' imprisonment. He now appeals against his conviction and sentence.

2 This is not a typical case of alleged rake by a stranger or by an accused person who was never intimately connected with the complainant. This is a case where the appellant and the complainant had cohabited for several months up to the fortnight before the 1st and 2nd April 1991 when the appellant is alleged to have raped the complainant. The complainant admitted in evidence that: “He was my boyfriend for about 2 years 10 months back and forth. Our relationship ended late March.”

3 The evidence of the complainant is that she and Wendell Dorsette were on the beach at Foxes Bay from 4.30p.m. on the 1st April, 1991 to 12.30a.m. of the following day. Dorsette then drove her to her home. While they were walking towards the gate of her house, the appellant suddenly appeared. An altercation and a struggle ensued between the appellant and Dorsette. The latter fled and left the appellant and the complainant engaged in a quarrel which resulted in violence. The complainant's version is that the appellant assaulted and beat her, dragged her into the bush and there raped her. According to the complainant “I had sex with the accused prior to that occasion. On those occasions he did not beat me before he had sexual intercourse with me(

4 At the trial, the appellant elected to make an unsworn statement from the dock where he admitted that he had sexual intercourse with the complainant at the place and time alleged by the complainant but did so with the complainant's consent. As a result of that admission, the sole issue at the trial was the complainant's consent or otherwise to the sexual intercourse.

5 Counsel for the appellant submitted in effect, and counsel for the respondent conceded that the learned trial judge misdirected the jury in the following respects ( inter alia):–

1

The learned judge failed to warn the fury that if there was no corroboration of the complainant's testimony that she did not consent to the sexual intercourse, it would be dangerous to convict the appellant on such uncorroborated testimony.

6 In this respect, attention is drawn to the case of Maxie Angus Anderson Ensor (1989) 89 Cr. App. R. 139. There, the lord Chief Justice (delivering the judgment of the Court of Appeal) said at page 147, “There is no doubt that, as the law stands, the warning as to the need to look for corroboration and the danger of convicting without it must be given in relation to each of the two ingredients of the offence, where both are in dispute. There was here a failure to give such a direction, which in our view constituted a material misdirection”

2

The learned judge told the jury that the medical evidence of Dr. Brenda Osborne that there was...