Craig Parker v. Her Majesty’s Advocate [2016] HCJAC 40

Note of appeal against conviction:- On 23 September 2015, at Livingston High Court, the appellant was convicted after trial of a charge of rape contrary to section 1 of the Sexual Offences (Scotland) Act 2009. The circumstances of the offence were that the complainer was in bed and the appellant came in to the bed beside her and lay on top of her and took down her pants. In evidence the complainer stated that she could not believe that this was happening and did not react as she hoped that by pretending to be asleep he would desist. In her evidence the complainer stated that she found it difficult to explain why she had not physically resisted or called for help when the appellant penetrated her vagina with his penis then penetrated her anus. The issue at the appeal was whether there was sufficient evidence to enable the jury to conclude that the appellant had no reasonable belief that the complainer was consenting to what he was doing to her. No issue was taken at the appeal in relation to the sufficiency of evidence of penetration nor of the complainer’s lack of consent. A ‘no case to answer’ submission, in terms of section 97 of the Criminal Procedure (Scotland) Act 1995, had been made at the close of the Crown case which was repelled by the trial judge. The various adminicles relied upon by the Crown to corroborate the complainer’s evidence about pretending to be asleep and the appellant lacking a reasonable belief that the complainer consented included:- (1) the amount the complainer had had to drink; (2) the time when the rape must have happened given that the complainer had been awake for much of the night following a lengthy period of drinking; (3) the absence of any prior relationship between the parties; (4) the gap in their ages; (5) an inference from the forensic findings that no condom had been used; (6) evidence that the complainer had earlier been asleep for about two hours; (7) evidence that she had been heard to say that she was not feeling well before she went to bed the second time; and (8) evidence from a witness, Miss Johnston, who had been in the company of the complainer and the appellant when the complainer had first gone to bed, and recalled the appellant acknowledging that he should not be going near her. The trial judge considered that these adminicles amounted to a body of evidence which taken at its highest was available to the jury to infer that the appellant could not reasonably have believed that she was consenting to any sexual conduct. Here the court refused the appeal. The court considered that there was ample evidence available to the jury to enable the jury to conclude that the appellant had no reasonable belief that the complainer was consenting to what he was doing to her.