LAW REPORT.

New Zealand Police Gazette, Volume XXXVII, Issue 24, 19 June 1912, Page 341

LAW REPORT.

(“ Times Law Reports,” Vol. xxviii, page 336.) [Court of Criminal Appeal (Darling, Ghannell, and Pickford, JJ.)— 26th March, 1912.] Rex v. Horn. Criminal Law Indecent Assault —Misdirection on Question of Consent. Conviction of the appellant, for indecent assault quashed on the ground that the summing up might have misled the jury into believing that because the appellant had not raised the question of consent on the part of the woman alleged to have been assaulted, they must convict although there was consent. This was an appeal by Osias Frederick Horn against his conviction at the London County Sessions before Mr. Lawrie on a charge of indecent assault, for which he was sentenced to six months’ imprisonment in the second division. Mr. Muir and Mr. Hinde appeared for the appellant, and Mr. Brinsley Nixon for the Crown. The defence set up at the trial was a denial of the acts alleged. In summing up the case to the jury the DeputyChairman said : “ Consent in this case has not been raised as a defence ; the defence here is a complete denial, although some of the surrounding circumstances might lead you to suppose, lead you to say almost without doubt, that if consent had been the defence raised here you would not have found the defendant guilty, because some of the girl’s actions seem to have been the actions of a girl who was likely to have consented. ... All those would have been matters to take into your consideration had consent been the defence raised in this case, but, as I say, the defence here has simply been a complete denial. . . . You are driven back for some explanation. Mr. Muir contended that this was a misdirection. The onus lay on the prosecution to negative consent ; the jury were misled into believing that they need not consider the evidence as to consent, as the appellant had not raised it. Mr. Justice Pickford: The learned Deputy-Chairman treated the case as if it had been a civil case with pleadings. Mr. Muir referred to the judgment of Lord Alverstone in Rex v. Bradley (4 Grim. App. Rep. 225, at p. 228). He was stopped.

Mr. Nixon contended that the direction was correct. The Deputy-Chairman did not direct the jury not to consider the question of consent, but he was considering all the possible motives which might induce a woman to make a charge of this kind: he dealt first with blackmail, and said it was not suggested here ; then with consent and subsequent change of mind, and said that that also was not suggested. What he meant was that if the appellant had raised this defence, that circumstance, coupled with the others he mentioned, would have made it unsafe to convict. Rex v. Stoddart (25 The Times L.R. 612 ; 2 Crim. App. Rep. 217, at p. 245) was referred to. There was no miscarriage of justice, for on tile evidence there was no consent. The appellant could not run both defences with any chance of success.

Mu. Justice Pickford said that the girl’s story was entirely uncorroborated, improbable in some parts and in other parts contradicted by other witnesses, and was entirely denied by the appellant. Under these circumstances it was of very great importance that the jury should not be misled in any way as to the question they had to consider. The defence set up was an entire denial of any assault having taken place, and of any indecent conduct, whether with or without consent. The Deputy-Chairman in summing up did not leave consent out of the question, but he dealt with it, it was said, in a wrong direction, because it was telling them, in effect, that although they might think that the circumstances pointed to the girl’s having consented, they must nevertheless convict because that defence was not raised. Rex v. Stoddart (supra) was cited in support of the proposition, with which they entirely agreed, that the summing up must-be looked at with reference to the conduct of the defence, and that conduct often did make it unnecessary to deal with points which otherwise must have been dealt with. Still, if those points were in fact dealt with, they must be dealt with in a way which would not mislead the jury. They thought this direction was misleading, because it might lead the jury to think that although they thought there was consent they must convict. The appeal must be allowed and the conviction be quashed. [Solictors —Lewis and Lewis ; Director of Public Prosecutions.]