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R v Bourne [1952] 36 Cr App R 1251

Aiding and abetting – Bestiality – Liability where principal offender lacked mens rea

Facts

Sydney Joseph Bourne (B) subjected his wife Adelaide Bourne (A) to bestiality by terrorising her into submission against her will of sexual intercourse with a dog. B was convicted of aiding and abetting his wife to commit buggery with a dog.  The offence of buggery requires only the act itself, the mens rea being irrelevant. B appealed against his conviction.

Issue

The issue in question was whether an accused could be convicted of aiding and abetting where the person aided and abetted was as not guilty as a principal. B argued that he could not be convicted of aiding and abetting a crime where there was no common design in which the aider and abettor are acting together and where the principal offender, A, could not be convicted since she acted under B’s duress.

Held

Mens rea or consent is immaterial to establishing the offence of buggery, whether with man or beast; the crime is committed if an act of buggery is committed. If it was shown that the principal offender, A, acted under duress, it would not have shown that no offence had been committed but would excuse A from punishment.  The full offence of buggery therefore still committed by A, B was a principal in the second degree and an aider and abettor to the crime of buggery which was committed by A. A would have been entitled to be acquitted on the ground of duress. The appeal was dismissed and conviction upheld.


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