R v Makary

The case of R v Makary involved an appeal by the appellant against his conviction for one count of rape and an application for leave to appeal against his sentence. The appellant had been found by the jury to have had sexual intercourse with the complainant when she was highly intoxicated and unconscious. The Crown case was that the complainant was incapable of giving her consent due to her state of intoxication. The appellant elected not to give evidence at trial and argued that the jury should have considered section 24 of the Criminal Code, which deals with the belief in consent, on the basis of an honest and reasonable mistake. The trial judge did not direct the jury to consider section 24.

The legal issues before the court included whether the trial judge should have directed the jury to consider section 24 of the Criminal Code. The court examined whether there was sufficient evidence to allow an inference that the appellant held an honest and reasonable, but mistaken, belief that the complainant had consented to sexual intercourse. The court also considered whether the cumulative sentence imposed by the sentencing judge was manifestly excessive or inadequate, given that the appellant was already serving sentences for other sexual offences and would serve over 20 years before becoming eligible for parole.

The court held that the trial judge did not err in failing to direct the jury to consider section 24 of the Criminal Code, as the evidence did not support an inference of an honest and reasonable mistake about the complainant's consent. The court found that the appellant’s actions, including engaging in sexual intercourse with an unconscious person, did not support such an inference. Regarding the sentence, the court concluded that the cumulative sentence was not manifestly excessive, given the appellant's history of similar offences, lack of remorse, and failure to cooperate with authorities.

In conclusion, the appeal against the conviction was dismissed, and leave to appeal against the sentence was refused. The cumulative sentence of five years imprisonment, to be served in addition to sentences from other trials, was upheld as appropriate.