R v Donovan [1934] 2 KB 498 concerned the relevance of consent to an assault involving bodily harm and the directions which a jury required. The Court of Criminal Appeal allowed Donovan’s appeal, quashed his conviction and ordered his discharge because the necessary questions had not been properly left to the jury.
Facts and trial
Donovan was charged with indecent assault and common assault after caning a seventeen-year-old girl in a garage in March 1934. His purpose was sexual gratification. The dispute concerned whether she had consented and the legal significance of any consent.
The prosecution’s account was that she had not willingly submitted. Donovan maintained that she had agreed to what happened. A defence witness gave evidence about earlier telephone conversations which, if accepted, supported his account. A doctor who examined the girl two days later found several red marks and considered that she had received a fairly severe beating.
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The jury convicted Donovan on both counts. He received concurrent sentences of eighteen months’ imprisonment for indecent assault and six months for common assault, both with hard labour. He appealed against conviction, complaining of the directions to the jury and challenging the evidential basis of the verdict. There was no appeal against sentence.
The problems with the jury directions
The trial had proceeded on the basis that consent was the decisive question. The Court of Criminal Appeal identified two defects in the directions given on that issue.
First, the jury had not been clearly told that, where consent was legally relevant and the evidence could reasonably support it, the prosecution bore the burden of proving its absence. The wording used could have led them to think that Donovan had to establish consent as a defence.
Secondly, the jury had asked whether a man’s reason to think that consent had been given constituted consent. The chairman answered no and said that consent was a question of fact. The appeal court considered that answer inadequate. The jury needed to assess the complainant’s conduct as a whole. If that conduct was consistent with consent, they should not find that the prosecution had disproved consent beyond reasonable doubt.
The court considered that proper directions on these matters might have led to an acquittal. The Crown nevertheless argued that the conviction should stand because, given the nature of the assault, consent was legally immaterial.
Bodily harm and the relevance of consent
Swift J delivered the judgment of the court, which also comprised Lord Hewart CJ and du Parcq J. The court distinguished acts which were criminal in themselves from conduct which became an assault because it was done without consent.
Its general rule, subject to recognised exceptions, was that beating another person with violence likely or intended to cause bodily harm was unlawful irrespective of consent. The judgment discussed exceptions involving lawful sporting contests and rough play, but found no evidence bringing Donovan’s conduct within them.
For this purpose, bodily harm included hurt or injury interfering with a person’s health or comfort. It need not be permanent, but it had to amount to more than a merely fleeting and trivial injury.
The jury therefore needed to address two questions in sequence. They should first consider whether the blows were likely or intended to cause bodily harm. If satisfied of that, they should convict without treating consent as an answer. Only if they were not so satisfied did they need to determine whether the prosecution had proved absence of consent.
Why the appeal succeeded
The first question had not been left to the jury at all. The second had been left with inadequate and misleading directions. Although the appeal judges thought it probable that a properly directed jury would have found the blows likely or intended to cause bodily harm, they could not say that finding was inevitable.
The degree of force and its likely or intended consequences were factual questions for the jury. The appeal court could not substitute its own finding on an issue which the jury had never been asked to decide. Nor could it rely on the verdict about consent when that issue had been misdirected. The conviction was therefore quashed and Donovan discharged.
Significance
The judgment separates whether consent can legally answer an allegation from whether consent has been disproved on the evidence. It also illustrates that an appellate court’s view of the probable facts cannot replace the necessary jury findings. Donovan’s successful appeal did not establish that the girl had consented or that consent would excuse an assault likely or intended to cause bodily harm.
Source: Original report in the Law Reports, King’s Bench Division, pages 498–510.
