L.W. v. His Majesty’s Advocate [2023] HCJAC 18

Note of appeal against conviction:- The appellant was convicted after trial at the High Court of a charge of rape contrary to section 1 of the Sexual Offences (Scotland) Act 2009. The appellant appealed against his conviction, it being contended that the trial judge erred in directing the jury that the appellant could not have had a reasonable belief that the complainer was consenting. In their written submissions lodged in advance of the hearing, the Crown agreed that the appeal had merit and should be allowed. The circumstances were that the complainer stated she was asleep and awoke during the night to find the appellant penetrating her vagina with his penis. She told him to stop which he did. In his evidence the appellant stated that whilst he was spooning the complainer she was grinding her bottom up and down on him and he thought she was awake saying “I thought she was awake but obviously she wasn’t”. Following the incident the complainer and appellant exchanged messages on Facebook which included the following from the appellant:- “I’m sorry when you said get off I did if you wanna class it as rape get me done for it I will admit what I did and tell them that as soon as you asked me to get off I did I was trying to wake u up in a nice way not fucking rape you”. In cross-examination the appellant resisted the suggestion that to wake someone up must mean that the person was asleep. In his charge the jury directed the jury that a reasonable belief in consent can never exist if the complainer was in fact asleep. It was submitted on behalf of the appellant that it is not the case that because someone is asleep or incapable of consenting a reasonable belief is necessarily excluded. It was conceded that if an accused person was aware a complainer was asleep or incapable of consenting then he could not be said to have a reasonable belief, however, the situation in the present was one where the actions of the complainer initiated contact by grinding against the appellant and the appellant could have a reasonable belief the complainer was not only awake but consenting and, as such, reasonable belief was a live issue and a miscarriage of justice had occurred. On behalf of the Crown it was submitted that circumstances could exist where an accused believed the person to be awake or conscious and consenting, even when the person was not, provided that the basis for that belief has been put in evidence and is considered by the jury to be reasonable. It was further submitted by the Crown that the trial judge, in directing the jury that no such belief could be held when a complainer was asleep, the trial judge misdirected them on a critical issue and there had been a miscarriage of justice. Here the Court, despite the Crown concession, refused the appeal. The court stated that 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” because if the complainer is in fact asleep the critical issue is not whether the accused thought the complainer was awake, but, rather, whether the circumstances were such as to permit of a reasonably held belief that she was consenting to the sexual activity. The court noted that the focus of the evidence of the appellant in the trial was on whether he thought the complainer was awake rather on that critical issue of whether he thought she was consenting, let alone whether there were objectively reasonable grounds for that belief. The court agreed with the trial judge that reasonable belief was not a live issue in the case and, as such, a direction on reasonable belief was not necessary and the Crown concession was wrongly made. The court observed that the position in relation to the terms of the special defence of consent ought to have been explored further at the Preliminary Hearing. Similarly, it would have been preferable for the special defence to have withdrawn from the jury’s consideration in advance of hearing the defence speech to avoid them listening to references to an irrelevant issue during the defence speech.