Appeal against two convictions by man who raped women in their own bedrooms refused by High Court

Raymond Nyiam argued that the jury ought to have been directed on the issue of reasonable belief in consent, and that by not doing so the trial judge had misdirected them.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Pentland and Lord Matthews. Claire Mitchell QC appeared for the appellant and the Solicitor General for Scotland, Ruth Charteris QC, appeared for the Crown.

No prior interaction

Both charges were of raping the complainers while they were intoxicated and incapable of giving or withholding consent. The words “and asleep or unconscious” were deleted from each of the charges by the jury.

On both occasions detailed in the charges, the appellant had returned to the home of the complainer and had sexual intercourse with them in their bedroom. In respect of the first complainer, EH, there was evidence that he had previously conversed and drunk with her, but he had no prior interaction with the second complainer, SP, until he had been directed to the en-suite bathroom in her flat.

The evidence of the complainers was that they were very drunk on the nights in question and had woken up with little recollection of the previous night. The first complainer had felt confused and disoriented and noticed a substance like lubricant or semen about her person, while the second complainer woke with an uncomfortable feeling in her groin.

It was the appellant’s position that both complainers had been consensual participants. Although EH had been drinking, she was able to hold a conversation without slurring her words and had no difficulty walking, while SP had told a friend that she was “fine” after they opened the bedroom door to check up on her.

The trial judge directed the jury that there was no live issue of reasonable belief in consent. Counsel for the appellant submitted that this was a misdirection, on the basis that if the jury had been entitled on the evidence to return the verdict it did, the issue of reasonable belief would still have been a live one, upon which the jury ought to have been directed.

Little or no recollection

Delivering the opinion of the court, Lady Dorrian began: “It is not easy to follow the logic of the ground of appeal. It is true that the libel which went to the jury did assert that the complainers were intoxicated and asleep or unconscious and incapable of giving or withholding consent, but it was clearly open to the jury on the evidence in the case to find that they were not asleep or unconscious but that nevertheless they were so intoxicated as to be incapable of giving or withholding consent.”

She continued: “There was evidence from the complainers that they had little or no recollection of the incidents other than as narrated above; that neither of them would willingly have had intercourse with the appellant; and that they were extremely intoxicated, to a degree which would have entitled the jury, if unable to conclude that they were actually asleep or unconscious, to conclude that they nevertheless did not have the capacity to give free agreement to intercourse with the appellant.”

On the issue of reasonable belief, Lady Dorrian noted: “The issue will be live only in a limited number of situations in which, on the evidence, although the jury might find that the complainer did not consent, the circumstances were such that a reasonable person could nevertheless think that she was consenting. That does not normally arise where, as here, an accused describes a situation in which the complainer is clearly consenting and there is no room for a misunderstanding.”

Lady Dorrian concluded: “If the position of the defence is that the circumstances were such, and the apparent degree of intoxication and how it manifested itself at the time were such, as to give rise to a reasonable belief in consent, it is for them to put that into issue in the trial.  The defence did not do so. The appellant himself gave no such evidence, and did not assert, even on an esto basis, that there were circumstances pointing towards a reasonable belief in consent, or creating room for misunderstanding.”

The appeal against conviction was therefore refused.