Raymond Nyiam who was convicted of two charges of rape against separate complainers has had his appeal against conviction refused by the Appeal Court of the High Court of Justiciary.
It was argued that the jury were misdirected by the trial judge as they ought to have been given directions on the issue of reasonable belief in consent.
The charges involved raping the complainers whilst they were intoxicated and as a result unable to give or withhold consent. The appellant had sexual intercourse with the complainers in their bedrooms. The complainers gave evidence that they were extremely intoxicated and had woken up with very little recollection of what had taken place. The first complainer had observed a substance on her person which resembled lubricant or semen. The second complainer woke with an uncomfortable feeling in her groin area.
The appellant argued that he had consensual sex with both complainers and that the first complainer was capable of engaging in conversation and was cable of walking. In respect of the second complainer the position was that she told her friend she was ‘fine’ when they entered the bedroom to check on her.
At trial the judge directed the jury that there was no live issue of reasonable belief in consent. Counsel for the appellant submitted that the trial judge had misdirected the jury in that if the jury had been entitled on the evidence to return the verdict it did, the issue of reasonable belief would be a live one and the jury ought to have been directed on this basis.
In delivering the opinion of the court, Lady Dorrian stated: “The issue will be live only in a limited number of situations in which, 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. That does not normally arise where, as here, an accused describes a situation in which the complainer is clearly consenting and there is no room for a misunderstanding.”
She continued: “If the position of the defence is that the circumstances were such, 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 is for them to put that into issue in the trial. The defence did not do so. The appellant himself gave no such evidence, and did not assert, even on an esto basis, that there were circumstances pointing towards a reasonable belief in consent, or creating room for misunderstanding.”
As a result, the appeal against conviction was refused.