Indecent assault: self-induced voluntary intoxication; no defence.
R v C
In R v C 156 J.P.649, the appellant was convicted of indecent assault and sentenced to three years' imprisonment. The offences were alleged to have taken place in September 1986, but not brought to the attention of the police until four years later. He appealed against conviction on the ground, inter alia, that the Judge had misdirected the jury by telling them that drunkenness was no defence to the charge of indecent assault.
At the time of the alleged offences the complainant was aged 8 years. The appellant was a family friend who visited the family regularly. The allegation was that the appellant climbed into C's bed and put a finger inside her vagina She was told not to tell her mother, however the next evening she told her brother, T, and then her mother what had happened; that the appellant had toucher her.
There is no dispute that the mother made contact with the appellant and they had a meeting when a discussion took place about what was alleged to have happened. Her brothers T and B gave evidence. T said that the appellant was obviously drunk, and the next day he had been embarrassed when she said the appellant had touched her.
The mother described the meeting which had taken place and she said that the appellant said that he had no recollections at all of the night and, that he asked, "Do you think there is any chance [C] is making this up". Then he said, "No of course not, she is not that sort of child". The matter came to light when C mentioned the matter to somebody at school.
On the question of drink the trial Judge had said, "Drink has been mentioned in this case. The defendant said he had so much to drink he could not remember what happened that evening at all. That is irrelevant. Self-induced intoxication, which is what it was, if it was, is no defence. It may, of course, be the reason somebody behaves out of character. But if you are satisfied that there was a deliberate indecent assault on C by this defendant, then you may have little doubt because of the assault, which I have gone into already, that he intended to do it and that, therefore, he is guilty, although these are questions of fact for you."
Was the Judge correct to tell the jury that drunkenness was no defence and therefore of no relevance? Evidence of intention in indecent assault was considered by the House of Lords in R v Court (1988) 152 J.P.422; [1989] A.C.28, According to Court, the prosecution had to prove, (1) that the accused intentionally assaulted the victim. (2) That the assault, or the assault and the circumstances accompanying it, were capable of being considered by right thinking persons as indecent. (3) That the accused intended to commit such an assault. The Court of Appeal considered that the law prior to Court and after it remained the same; indecent assault remained an offence of basic intent with the consequences that in relation to such an offence the self-induced voluntary intoxication does not amount to an offence.
The Court felt however that in a case such as this, it is not necessary to have regard to that principle. In this case the only issue was whether or not the appellant intentionally did the act alleged. It was his case that because of drunkenness he could not remember what happened. However lack of memory, whether it be caused by drunkenness or a hit on the head which causes retrograde amnesia, does not affect, the responsibility if at the time what was done was done deliberately. Held, the conviction was safe, appeal dismissed.
Rob Jerrard