R v Bourne (Sydney Joseph)
Court of Appeal
Citations: (1952) 36 Cr App R 125.
Facts
The defendant was convicted of aiding and abetting his wife to commit buggery (a now defunct offence) with a dog after he excited the animal and coerced his wife into the sex act. The defendant appealed his conviction on two grounds. The first was that he was not present at the time of the sex act. The second was that his wife was not guilty of any criminal offence, since she had the defence of duress, and it is not possible to aid and abet a crime where the principal is not guilty.
Issue(s)
- Does an accessory to an offence need to be present at the time of the offence?
- Can a person be convicted as an accessory where the principal is not guilty due to a defence?
Decision
The Court of Appeal upheld the conviction. In the circumstances, duress would be a defence establishing a lack of mens rea – in this case, lack of consent to sex with a dog. However, since consent was not a requisite element of the offence of buggery, this would not have worked. The fact that the wife was under duress was therefore irrelevant to the husband’s conviction. It was also irrelevant that he was not present when the offence was committed.
This Case is Authority For…
A person can aid and abet an offence even if they are not present when the offence is committed.
Other
This case indicates that duress may not be a defence to strict liability offences.
