Husband fails in holiday rape conviction appeal

Friday 02 October 2020

A man found guilty of raping his wife while on holiday has failed in his appeal of the conviction, after all the arguments put forward by his defence lawyer were rejected by the Court of Appeal.

The man – who cannot be named for legal reasons – was found guilty of one count of rape by unanimous verdict earlier this year and is now serving a four-and-a-half-year prison sentence.

A jury found he had raped his wife on the last day of a holiday away from the island. He had accepted having had sexual intercourse, but maintained it had been fully consensual.

He appealed his conviction before the Court of Appeal in July with his lawyer, Advocate David Steenson, arguing that no reasonable jury would have reached the conclusion it did.

Specifically, Advocate Steenson argued that the evidence of the man’s wife at the trial was "incredible" in that it was difficult to believe. He said it would have been easy for the woman to resist her husband’s advances with a change in body position, but she chose not to do so. This was evidence of her consent, he argued.

His other arguments included alleging that the man’s lawyer at the trial had failed to follow his client’s instructions over the cross examining of a witness, and that the same lawyer had been wrong to present emails to the jury as evidence of marital problems.

The case was heard by Court of Appeal Judges George Bompas, Sir Michael Birt and Lord Anderson, who gave leave to appeal but eventually dismissed it. Their judgment was published yesterday.

While they agreed the man should have been advised by his lawyer, Advocate Ian Jones, of the possibility of a trial by the jurats rather than a jury, the Court said that whether or not jurats would have reached a difference decision was “a matter of complete speculation."

They however said this was not enough to allow an appeal against what they described as “a fair and proper conviction."

The Court also agreed that Advocate Jones should have followed the man’s instructions and put his case to one of the witnesses.

“It is in general counsel’s duty to ensure that the defence case is put fully and fairly to witnesses,” they wrote in their judgment. “That must be the defence case as instructed even where the defence advocate considers that this may be damaging because, for example, the defendant’s case is inherently unlikely.”

They however rejected the view that this had been damaging to the man’s case, describing the latter as “inherently unlikely."

As part of his appeal, the man also attempted to have two reports from medical practitioners added as evidence to show that sexual intercourse could not have occurred in the way the victim described it.

The Court however agreed with Advocates Jones’ view that “opinion evidence as to the mechanics of sexual intercourse was inadmissible."

They stated that there was no suggestion that either of the two proposed witnesses had carried out “practical experiments” before giving their opinion on the matter.

“Whilst of course they have considerable expertise in the anatomy of the body, there is no evidence that they have greater experience than members of the jury as to the practicalities of sexual intercourse in the 'spooning position' described by the complainant,” the Court added. 

Responding to the suggestion that "undue weight" had been placed on emails in which the victim described her feelings about the pair’s sexual relationship and that they should not have been submitted as evidence, the Court of Appeal ruled: “In determining whether or not the complainant had consented to sexual intercourse on this occasion, it was necessary for the jury to know the background to the relationship between the parties and the run up to the alleged offence.  It would be wrong to expect the jury to decide whether or not she had consented on this occasion without knowing about the feelings in relation to sexual intercourse which the complainant had communicated to the defendant in the emails and the general state of the relationship between the parties. Without the emails, the jury would have had an incomplete picture.”

The Court further observed: "The Bailiff was, in our judgment, also correct to admit the emails on the second ground, namely that they would be relevant evidence in the event of a mistaken belief in consent being an issue. Whilst it is true that this was not the defence case, the Commissioner correctly left the issue to the jury as being one possible view of the evidence in the case. In our judgment, it was inevitable that he would have to do so. The defendant was saying that the complainant consented. If the jury concluded that he was wrong and that she did not consent, they would have to go on to decide whether he reasonably believed she was consenting. What the complainant said in the emails about her willingness to have sex with the defendant was clearly relevant to that issue."

In their concluding comments, the Court of Appeal emphasised that, despite assertions that the man was more "clear, consistent and unshaken" in his evidence compared to his wife, it was not for them "to read the transcript of evidence and determine how it would have decided the case."

"The test is whether the verdict is one which a reasonable jury could not have arrived at," they explained, later adding: "This was a trial where the jury heard at length from both the complainant and the defendant, their respective versions were thoroughly tested in cross-examination and the Commissioner gave an impeccably fair summing up. Having considered the transcript and the matters put forward by Advocate Steenson, we cannot conclude that this was an unreasonable verdict or one which cannot be supported having regard to the evidence."

While the Court concluded that some matters raised by Advocate Steenson were "reasonably arguable", the appeal was nonetheless dismissed.