Raymond Nyiam v. Her Majesty’s Advocate [2021] HCJAC 44

Note of appeal against conviction:- The appellant was convicted after trial at the high court of two charges of rape relating to two different complainers whilst they were intoxicated and incapable of giving or withholding consent. In both charges the jury deleted the words “and asleep or unconscious”. It was the appellant’s position at trial that both complainers had been active and willing participants with mutual kissing and cuddling leading to sexual intercourse. The trial judge directed the jury that there was no live issue of reasonable belief in consent. The appellant appealed against his conviction it being contended that the direction referred to 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. At the appeal hearing it was further submitted that the case of Maqsood v HMA 2019 JC 59 was wrongly decided and that in all cases, where consent is in issue, reasonable belief is a matter which inevitably arises and requires to be corroborated. In addition, an attempt was made to raise a compatibility issue from the way in which the legislation has been interpreted. Here the court refused the appeal. The court reiterated that the law on reasonable belief is well settled that the issue of reasonable belief will only be live in a limited number of cases where, 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. In cases where an accused describes a situation in which the complainer is clearly consenting and there is no room for a misunderstanding, like in the present case, then the issue of reasonable belief would not arise. Furthermore, if the appellant’s position was that the circumstances 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 was for the appellant to put that into issue in the trial. In the present case it was the Crown case that the complainer was unable to consent due to intoxication or lack of consciousness or being asleep whereas it was the appellant’s position that the complainer was not so intoxicated that she could not consent and did in fact consent. In those circumstances the issue of reasonable belief simply did not arise. The court went on to confirm that an absence of reasonable belief was not always an issue and did not require to be proved by corroborated evidence and the case of Maqsood was not wrongly decided and did not require to be remitted to a larger court. Furthermore, the court did not entertain the raising of any perceived compatibility issue so late in the day in the absence of a compatibility minute having been lodged and without a ground of appeal having been raised.