Michael Cowan v. His Majesty’s Advocate [2024] HCJAC 35

Note of appeal against conviction:- On 1 September 2023, following a trial at the High Court, the appellant was convicted of a charge of rape contrary to section 1 of the Sexual Offences (Scotland) Act 2009. Following the obtaining of a Criminal Justice Social Work Report the appellant was sentenced to 4 years imprisonment. The Crown case was that the complainer was asleep or unconscious and incapable of giving or withholding consent at the material time. The appellant appealed against his conviction it being contended that there was insufficient evidence that the complainer was in fact asleep at the material time and that the verdict was, in any event, unreasonable. It was submitted on behalf of the appellant that that there was no basis on the evidence for an inference that the complainer was asleep or unconscious at the time penetration commenced and the concession made on behalf of the appellant during the trial to the contrary was wrongly made. It was further submitted that the evidence of the complainer was so vague that the jury’s verdict was unreasonable. On behalf of the Crown it was submitted that there was sufficient evidence that the complainer was asleep or unconscious at the material time and there was a clear basis for the jury’s verdict. It was accepted that the concession made at the trial was not binding. Here the court refused the appeal. The court observed that the trial Advocate depute had stated at the trial that he had to prove that the complainer was asleep when penetration began which the court here considered was wrong. The court stated that the critical issue was whether the Crown had established that she was penetrated without consent. The court considered that it was open to the jury to infer from all of the evidence that she was not consenting even if the jury were not satisfied that she was asleep or unconscious and, as a consequence, the jury in not receiving directions to that effect were deprived of a valid and reasonable route to a verdict of guilty. The court did, however, consider that there was sufficient evidence to entitle the jury to infer that the complainer was asleep or unconscious at the material time and that what was happening when she woke was that the appellant’s penis was inside her vagina. The court considered that the concession made on behalf of the appellant at the trial was correctly made. In relation to the alternative ground of appeal under section 106(3)(b) of the 1995 Act, namely, that the verdict was one which “no reasonable jury, properly directed, could have returned” the court reiterated that it is only in the most exceptional circumstances that an appeal on such a ground would succeed and in the present case there were two and not one rational ways in which a properly directed jury could return a verdict of guilty.