High Court refuses rape conviction appeal despite Crown concession that appeal had merit

About this case:

• Citation:
  [2023] HCJAC 18
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lady Dorrian

Appellant LW argued that the trial judge had erred in directing the jury that he could not have had a reasonable belief the complainer was consenting. The Crown position was that, if there was any evidence capable of supporting a reasonable belief in consent, the matter should be left to the jury.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, together with Lord Pentland and Lord Matthews. A Ogg, solicitor advocate, appeared for the appellant and A Cameron, advocate depute, for the Crown.

Only defence

Between January and March 2020, the appellant was in a relationship with the complainer and lived with her at the locus. The complainer’s evidence was that she was sleeping on her side with her back towards the appellant and woke to find him penetrating her with his penis. She told him to stop, which he did, and they separated the following day.

The appellant’s case was that whilst he was spooning the complainer, she was grinding her bottom up and down on him, causing him to believe she was awake even though he could not see her eyes. The trial judge directed the jury that, if they accepted there was corroborated evidence that the complainer was asleep, the accused could have no reasonable belief of consent. As a result, his evidence that he thought she was awake because she was grinding on him did not amount to a reasonable belief.

Counsel for the appellant submitted that the trial judge had erred in giving the directions he did and in finding support for his view in obiter remarks from GW v HM Advocate (2019). GW was a case where the issue was whether a person could consent in advance to having intercourse whilst asleep, and where the appellant was well aware that the complainer was asleep at the time. It had never been the case that simply because someone is asleep or incapable of consenting a reasonable belief was excluded.

For the Crown it was submitted that the trial judge misdirected the jury on a matter of considerable importance, in effect instructing them that they could not consider the only defence on which the appellant relied. The jury’s questions show that they were interested in this issue, and against that background the effect of the verdict must have been a miscarriage of justice.

Mere assertion

Lady Dorrian, delivering the opinion of the court, said of the appellant’s defence: “A sleeping person is deemed incapable of consent to any sexual conduct. The evidence of the complainer alone can be sufficient to rebut any suggestion of reasonable belief. The circumstances in which a reasonable belief in consent may be a live issue where the complainer maintains that she was asleep at the time of penetration will, at best, be vanishingly rare.”

She continued: “In the present case, the focus of the evidence of the accused was on whether he thought the complainer was awake: there was virtually no focus in the course of his evidence on whether he thought she was consenting, far less on whether there were objectively reasonable grounds for so believing.”

Assessing whether the appellant could have had a belief the complainer was consenting, Lady Dorrian said: “We do not consider that reasonable belief was a live issue in the case, which is enough for disposal of the appeal, without considering any wider issue. The complainer had been asleep, as the appellant knew; he did not speak to her; and she did not say anything to him. He did not see her eyes. The position advanced in the speech on his behalf was that he accepted that he had ‘got it wrong’ and that she was not in fact awake, although he thought she was.”

She went on to say: “The evidence falls short of allowing consideration of a reasonable belief in consent to vaginal penetration. It is notable that in the defence speech the matter was addressed on the basis of mere assertion, with no attempt to identify an evidential basis for the assertion. It follows that the trial judge did not err in directing the jury that no issue of reasonable belief arose in the case.”

In disposing of the appeal, Lady Dorrian concluded: “It also follows that the issue of reasonable belief was not a live issue in the case, a direction on reasonable belief was not necessary, and the appeal must fail. The Crown concession was wrongly made.”