Michael Cowan, the appellant, was convicted of rape on 1 September 2023 and sentenced to four years of imprisonment. The conviction was based on an incident on 22 February 2020, where it was alleged that Cowan raped the complainer, JP, who was asleep or unconscious and therefore incapable of giving or withholding consent. This was found to be contrary to section 1 of the Sexual Offences (Scotland) Act 2009.

The complainer, JP, knew Cowan from a bar where she worked and considered him to be about the same age as her father. On the day of the incident, JP, Cowan, and others were at a club and later went to Cowan’s flat. JP consumed alcohol and a line of cocaine but did not feel drunk. After others left, JP continued to chat with Cowan. Her next memory was waking up in Cowan’s bedroom with her clothing disarranged and Cowan’s erect penis pressed against her buttocks. She felt dizzy and passed out again. Upon waking a second time, she found Cowan still beside her with his penis near her vaginal area, and felt partial penetration.

JP’s Testimony: She described feeling Cowan’s erect penis against her, partially penetrating her vagina. Her description was not detailed enough to ascertain if she was conscious when the penetration began.

Corroborative Evidence: Evidence of Cowan’s DNA was found on the inside and outside of JP’s pants, suggesting vaginal intercourse without ejaculation. Testimonies from JP’s friend and her mother supported her distress following the incident.

Cowan’s Statement: Cowan denied any sexual contact, stating he found JP fully clothed in his bed when he returned from the bathroom.

Appeal Grounds

Insufficient Evidence: The appellant argued that there was not enough evidence to prove that JP was asleep or unconscious at the time the penetration began.

Unreasonable Verdict: The appellant contended that the jury’s verdict was unreasonable based on the evidence presented.

Court’s Analysis and Decision

Concession Error: At trial, the Advocate depute wrongly conceded that the Crown needed to prove JP was asleep when penetration began. The court clarified that the real issue was whether penetration occurred without consent.

Sufficiency of Evidence: The court found there was sufficient evidence for the jury to infer that JP was asleep or unconscious during the penetration. The jury could reasonably conclude non-consent from the overall evidence, even without explicit testimony on her consciousness.

Reasonableness of Verdict: The court maintained that the jury’s verdict was reasonable given the evidence, despite it not being fully clear-cut. The case did not meet the high threshold for overturning a jury verdict as unreasonable.

Conclusion

The appeal was refused. The court held that there was sufficient evidence to support the conviction and that the verdict was not unreasonable. Cowan’s conviction and four-year sentence were upheld.