Court asked to quash Harbour rape conviction

Tuesday 25 May 2021

The Court of Appeal is being asked to quash the conviction of a 25-year-old man, who was found guilty of raping a drunk woman at St. Helier marina.

Mark Fernandes was jailed for four years in February, three months after a jury had convicted him of one count of rape at the end of a six-day trial.

The jury found him not guilty of a second charge of rape, which had been alleged to have happened later in the evening on the same night in May 2019.

Addressing the three-member appeal court via video-link from the Royal Jersey Showground, defence Advocate Julian Gollop based his appeal on three principal arguments:

• that there had been insufficient evidence placed at the trial on the issue of whether the woman was consenting to sexual intercourse;
• that the jury had put too much emphasis on CCTV evidence and not enough on other factors;
• and that its two verdicts - one of guilty and the other not guilty - had been illogical and inconsistent.

The main argument of the prosecution during the trial - which the jury accepted for the first count of rape - was that the woman was too drunk to have consented to sexual intercourse. 

At the appeal hearing, Advocate Gollop, however, argued that more weight should have been given to the account of a security guard at the Harbour, whose description of Fernandes and the woman having sex “was consistent with it being consensual”.

Pictured: Fernandes, who was jailed for four years in February.

The lawyer added that too much emphasis had been put on CCTV footage taken around Liberation Square, which showed the woman unsteady on her feet and losing her shoes.

Advocate Gollop said that his client had not been present at this time so would not have seen how drunk she was. More emphasis, he argued, should have been put on footage that showed six people had walked past Fernandes and the woman while they had sex at the Harbour, with not one of them being concerned enough to stop.

He added that an expert witness during the trial had said that people could have blackouts through drink, which the woman said had happened, but still be in control of their actions.

Finally, he argued that the jury’s acquittal of the second count of rape, alleged to have happened around 40 minutes later, was evidence of its inconsistency.

Pictured: Yesterday's Court of Appeal hearing took place at the RJA&HS.

“This second count only came to light because of my client’s own admission,” he said. “It was a case of a man of good character saying he had sex on two occasions and both were entirely consensual.

“Indeed, you could argue that there was more evidence of the complainant consenting, and my client’s reasonable belief of her consent, in the first count at the Harbour. So one struggles to see how the jury reached their not-guilty verdict on the second count based on that analysis.”

Advocate Gollop asked the Appeal judges - Jonathan Crow, Lord Anderson of Ipswich and David Perry - to quash the conviction, adding that the interest in, and publicity around, the original trial would make a fair retrial impossible.

Crown Advocate Rebecca Morley-Kirk maintained the prosecution's position that, taking all the evidence together, the woman had lacked the capacity to consent, given her level of intoxication.

“She clearly stated that she did not recall agreeing to intercourse or any form of sexual activity,” said Advocate Morley-Kirk. “She said that if she would have been able to, she would have said 'no'.”

Concerning the CCTV, Advocate Morley-Kirk said that at no stage had it been suggested during the trial that too much weight had been placed on the footage from Liberation Square.

Pictured: The prosecution disagreed that too much weight had been placed on CCTV footage from around Liberation Square showing the woman unsteady on her feet.

She added that the jury’s not-guilty verdict on the second count of rape did not indicate that the woman had consented to this sexual encounter nor did it suggest that the jurors thought Fernandes had had a reasonable belief that she had consented. It simply meant that the jury could not be sure of this particular charge, she said. 

The appeal judges will give their judgment at a later date.