DWAYNE’S APPEAL.
- Facts of the Case.
The Appellant XXX was convicted of rape, robbery and, murder. The facts that led to these convictions are that on one Friday evening the Appellant in the company of his friend XXX went out for drinks in a local nightclub. Robbie talked a lady, Louise, into having sex with him with the hopes that XXX would join them later in the night to also have sex with XXX. XXX left with Louise and headed back to a hotel room. XXX followed them shortly after as XXX had sent him the room number. On arriving at the hotel room, Dwayne found Robbie and Louise having sex. Robbie asked Louise if it was okay for Dwayne to join them and have sex with her but XXX remained silent. With XXX encouragement, XXXX had sex with XXX.
After leaving the hotel, on his way home Dwayne Mable who was an old lady walking along the road. Deciding to grab his bag, Dwayne ran to her, grabbed the bag and punched her in the face. Mable fell, hitting her head on the pavement and died immediately. Dwayne fled from the scene of the crime and was subsequently stopped by police officers on patrol. Louise reported to the police on the happenings at the hotel and hence Dwayne was charged and convicted of rape, robbery and, murder.
Dwayne brings this appeal on the basis of these grounds;
- The direction of the Judge that if Louise was very drunk then she could not have consented to sexual intercourse.
- The direction by the Judge that Dwayne’s belief in Louise’s consent could not be reasonable if he was drunk.
- He did not have the mens rea for murder.
- He should have been tried for unlawful act manslaughter instead of murder.
- Argument.
- The direction of the Judge that if Louise was very drunk then she could not have consented to sexual intercourse.
Section 74 states that sexual consent happens where one agrees by choice, having the freedom and capacity, to make that informed choice.[1] Simply put, there is a need to prove that the complainant had the mental capacity to consent and that this consent was a free choice. The Court of Appeal in R v Olugboja, defined sexual consent to include but not limited to the parties’ state of mind, actual desire and reluctance.[2] In the matter presented of intoxication, Louise was drunk at the time she had sex with Robbie and Dwayne. Louise had been drinking by herself by the time the men entered the nightclub and the issue of whether the men supplied Louise with alcohol with the intention of taking advantage of her is out of the question.[3]
The two men were equally intoxicated when the sexual intercourse happened. It should be clear that Louise had consciously consented to have sex with Robbie who she voluntarily left the nightclub with to the hotel room. In R v Bree, the issue was whether, after voluntary consumption of alcohol by adults which led to consensual sex, if the complainant would sue the defendant of rape. The Court held that considering that the complainant, although drunk at the moment, had voluntarily and without pressure or coercion had consented to have sex with the defendant, that consent could not be revoked.[4]
It is clear from the facts provided that Louise had the capacity to consent to sex. Her consent was based on a free choice regardless to the fact that she was drunk. It is important to point out that when asked by Robbie if Dwayne would join them and have sex with her, she did not object. She was aware of the choice to refuse to have sex with Dwayne but she voluntarily chose not to object hence giving Dwayne the idea that she had consented. Under Section 74, the complainant’s inability to verbally express consent to sexual intercourse is not necessarily required in order capacity to be proven.[5]
This was best illustrated in R v Hysa where the complainant had been drunk and also intoxicated from the use of cannabis. She did not remember consenting to have sex with the defendant. The Court held that the question as to whether the complainant had expressly consented to intercourse was unclear hence it would be unfair to assume the defendant was guilty of rape. The Court further directed that the court should rely on the discretion of an independent jury in such unclear matter.[6]
- The direction by the Judge that Dwayne’s belief in Louise’s consent could not be reasonable if he was drunk.
The Court in addressing the matter of voluntary intoxication stated that one can only prove rape if there is presence of mens rea needed to prove a crime which should go beyond the mere actus reas.[7] It should not be enough that the complainant to allege that the defendant raped them, it must be shown that taking into consideration that both of them were intoxicated at the time of the act, the defendant had the mens rea to commit a sexual assault.
In this case, there is no proof that Dwayne had intended to rape Louise. On the contrary, Robbie asked Louise if Dwayne could join them. This shows that neither Robbie nor Dwayne intended to have sexual intercourse with Louise with her consent. It is also proof that Dwayne and Robbie were not overly intoxicated not to realize a right and reasonable thing to do even when it came to having sex.
- He did not have the mens rea for murder.
Murder is the illegal taking of another person’s life with malice aforethought. Malice aforethought often refers to the clear and conscious intention by the defendant to kill another human being. This means that the defendant planned before hand to kill which sets the crime of murder from other crimes such as manslaughter. Malice aforethought also refers to the mens rea which is the state of mind required to prove murder. Mens rea refers to the intention to either kill or cause grievous bodily harm.
To prove mens rea, it is the prosecutions obligation to prove beyond reasonable doubt that the defendant had intended to kill or cause grievous bodily harm to the victim. The Court in R v Moloney held that for the prosecution to prove mens rea, the prosecution must prove that the defendant had a clear intention to kill or cause grievous bodily harm.[8] It should go beyond the defendant’s action that led to the death of the victim but include the actual mental intention that the defendant had to cause the death.
The defendant’s foresight of the death or grievous bodily harm could be a result of the actions against the victim is not enough to prove mens rea needed to prove murder. This was emphasized in R v Woollin where the accused had, in a moment of anger, threw his child at a wall which led to the child’s death. The Court heal that the defendant could only be charged with murder where it was clear that the defendant believed that there was a substantial risk of death which the defendant depended on.[9] Where the defendant did not believe their action possessed a high risk death then they did not possess the mens rea required for murder. In R v Hancock the defendants had thrown a concrete block from a bridge to a worker with the intention of scaring him. However, the concrete block fell on another person who subsequently died from the injuries. The Court held that there must be clear intention to cause death and not just a mere foresight of the actions.[10] Where there is no proof of an intention to commit murder yet the defendant’s action led to the death of another, the defendant cannot be charged with murder.
Similarly, in this Dwayne’s actions towards Mable clearly show that he did not believe his actions had a high risk for death which is required to prove mens rea for murder. His actions clearly show that he had intended to only grab the bag and not end up killing Mable. Furthermore, Dwayne’s actions show that he only punched Mable as a way to maybe slow her should she have decided to run after him.
- He should have been tried for unlawful act manslaughter instead of murder.
As earlier on discussed, murder is the illegal taking of another person’s life with malice aforethought. Hence to prove murder, it has to be proven that the defendant had the mental intention to commit the death and acted upon that intention. On the other hand, manslaughter refers to the offence of taking another’s life without the aspect of malice aforethought. This means that the defendant voluntarily or involuntarily caused the death of another by gross negligence, reckless driving or by unlawful and dangerous acts.
Unlawful act manslaughter refers to when a defendant voluntarily and intentionally commits an unlawful act which is dangerous that subsequently causes the death of another. In DPP V Newbury and Jones, two boys threw a paving block at the train with the intention of causing an accident. The block fell on a guard who succumbed to the injuries. The issue at trial was whether the boys were guilty of unlawful act manslaughter. The court held that the boys were guilty as they had voluntarily and intentionally thrown the paving block at the train to cause an accident, the act was dangerous in nature which then caused the death of the guard.[11]
The court in R v Goodfellow set down the requirements that must be met to satisfy the standard needed for unlawful act manslaughter.[12] These are discussed as;
- The act must be unlawful.
The defendant must be shown to have been committing an unlawful act during the time that death occurred. An unlawful act is any act that is either illegal by legal standards or any acts that the defendant is aware they should not be doing but they choose to do anyway. To prove an unlawful act manslaughter, the said act has to be a crime under the law as opposed to it being based on a civil wrong. The defendant cannot be charged for an unlawful act manslaughter if the act for which he is being charged is not classified as a crime under the statutes.
- The act must be intentionally and voluntarily committed.
The defendant must be shown to have acted deliberately in committing the unlawful act. There must be proof that the defendant did not act out of pressure, coercion or a threat. Furthermore, the unlawful act must not be as a result of an omission on the part of the defendant. For instance, in R v Lowe, parents intentionally neglected a child. The child died as a result of the effects of neglect. The issue was whether the parents could be charged for unlawful act manslaughter. The court held that the parents’ negligence that subsequently led to the child’s death did not constitution positive act needed to prove an intentional act.[13] Hence the unlawful act must be as a result of a commission and not an omission.
- The act must be dangerous.
To determine if the act in question amounts to being dangerous, one must look at the test set in R v Church. The Court of Appeal held that for an act to be considered dangerous, it must be such that “…all sober and reasonable people would inevitably recognize must subject the other person to at least, the risk of some harm resulting there from, albeit, not serious harm…”.[14] In Church, the accused and a woman had agreed to have sex in his van. At some point, the woman was angry because he had failed to satisfy him and slapped him across the face. The accused fought back and the woman, overpowered during the fight, passed out. The accused, believing that the woman was dead, threw her in a river. However, it was proved that the woman had not been dead at the time she was placed in the river but had died later due to drowning. The issue was whether the defendant’s actions had led to the unlawful act manslaughter. The court held that the defendant was guilty of killing the lady based on his dangerous act.
- Caused death of another. (Causation)
It is a rule that the unlawful act should cause the death of another for it to be considered as manslaughter. In R v Charles the defendant who was heartbroken, sent a text to his mum stating he did not wish to continue living. He then got into his car, drove against the coming traffic at high speed which led to the collision with an oncoming car. The accident caused the death of one passenger. The Court held that although the defendant’s intentions had been to commit suicide, his actions had been unlawful against the traffic rules which led to the death of the other person.[15]
Taking this into consideration and assessing Dwayne’s case, it is clear that his actions towards Mable did not possess the mens rea required to prove murder but instead set the perfect case for a charge of unlawful act manslaughter. His actions were intentional, voluntary, dangerous which subsequently led to Mable’s death. The charge of murder against Dwayne does not meet the mens rea requirement needed to prove his malice intentions to cause murder. It is clear that the prosecution misled the court on the facts of the case, placing weighty charges on the Appellant. The prosecution failed to prove beyond reasonable doubt that Dwayne had satisfied the mens rea required for the charge of murder.
- Conclusion.
The appellant feels that the court erred in its reasoning for the rape and murder charges. It is clear from the foregoing discussion and the case law employed that the Appellant did not rape Louise because it was consensual intercourse between two adults. It is also clear that XXX actions towards Mable which led to her death did not possess the mens rea required to prove murder. Instead, his action met the set standards need for a charge of unlawful act manslaughter. The Appellant hereby wishes that this court takes into consideration the issues raised herein and that it allows this appeal so that the appellant be charged for unlawful act manslaughter alone and not with the charge of rape.
References.
Legislation.
XXX
At Legal writing experts, we would be happy to assist in preparing any legal document you need. We are international lawyers and attorneys with significant experience in legal drafting, Commercial-Corporate practice and consulting. In the last few years, we have successfully undertaken similar assignments for clients from different jurisdictions. If given this opportunity, The LegalPen will be able to prepare the legal document within the shortest time possible. You can send us your quick enquiry ( here )