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Fred and Betty Exemplar answer
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Fred and Betty: An AnswerFred (F) is charged with the rape of Betty (B). The ultimate issue at trial
would be whether F is guilty of raping B. The facts-in-issue at trial following a
not guilty plea, according to the case of Sims, would be taken from the actus
reus and mens rea of the offence, plus the identity of this Defendant as the
offender. This offence requires the prosecution to prove 3 elements:
F intentionally had sexual intercourse with B
F did not consent to that sexual intercourse
B realised F was not consenting OR if he did believe F was consenting, had
no reasonable grounds for that belief.
Following the case of Woolmington it is generally the prosecution who have
the burden both evidentially and legally of proving the facts in issue and when
that burden is borne by the prosecution, the standard that must be reached is
beyond reasonable doubt. In the case of Summers this was described as
satisfying the jury so ‘that they are sure.’
On the issue of intentional intercourse, B’s witness statement is evidence that
intercourse took place. The admissibility of that statement is discussed below.
However this issue (of intentional intercourse) is not contested by the defence
– F’s statement to the police admits as much and this statement is an
admission.
The real issue is thus consent – did B not consent and did F realise that she
was not consenting? The prosecution will seek to put forward several items of
evidence to demonstrate lack of consent:
B’s testimony and/or statement to the police
W’s testimony that B complained about the rape
F’s police statement
F’s prior bad conduct
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, F’s obsession with B as evidenced through the photos
F’s sexual obsessions as evidenced through the porn sites visited.
The defence will seek to establish a reasonable doubt as to B’s consent:
F’s testimony that she was in fact consenting
B’s failure to cry for help
B’s failure to complain to Wilma at the very first opportunity
F’s good character
Betty’s testimony
The first question is whether there are grounds for appeal in the manner in
which the judge dealt with B’s testimony in chief.
The judge allows her to testify by video link – this is permitted so long as the
judge has followed the process laid down in the Youth Justice and Criminal
Evidence Act 1999. The judge must decide that B is an eligible witness under
either section 16 or section 17 of the Act (students should lay out the relevant
statutory text and show whether it applies). If so, the judge may make a
special measures direction and a televised link is permitted under section 24.
The judge allows her to refresh her memory by reviewing her witness
statement. This process is permitted even where a witness has started to
testify – this is regulated by section 139 of the Criminal Justice Act 2003.
(Students should lay out the relevant statutory text, explain how it applies here
and give illustrative caselaw). But the statement does not necessarily become
received into evidence – s.120(3) reflects the common law here.
The judge allows her witness statement to be put into evidence. This is more
controversial as the Youth Justice and Criminal Evidence Act 1999 would
allow for a videotape of evidence in chief to take the place of oral testimony
but has no provision for the witness statement itself. There are perhaps two
avenues for the judge to explore concerning admissible hearsay under section
114 of the Criminal Justice Act 2003:
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