The respondent was acquitted of a section 1 of the Sexual Offences (Scotland) Act 2009. At trial judge accepted a no case to answer submission on the third day of the trial. 

Evidence was heard from the complainer, a barman at Shotz Pool and Snooker Club where the complainer and respondent were seen together. Evidence was also heard from a taxi driver who refused to take the complainer and respondent to the Hotel Indigo in Dundee where the alleged offence was said to have taken place. In addition, the court heard from the hotel receptionist and two police officers who attended the hotel after responding to a call from the taxi driver. 

The complainer stated in evidence that she had been drinking in Dundee and had been separated from her friend. She then went to the pool bar with the respondent, whom she had never met before. She stated that she had no memory of going to the hotel or what happened in the room but she woke up wearing no underwear. Due to the scientific and medical evidence it was agreed at trial that sexual intercourse had occurred.         

All Crown witnesses described the complainer as being in some state of intoxication. The Crown also led CCTV footage which showed her as being unsteady. At the time of the incident, her blood alcohol concentration was estimated to have been between 265 and 340mg per 100ml. 

It not sufficient for there to have been ample evidence of intoxication to form the necessary assumption that the complainer was not capable of giving her consent, the trial judge determined. The Crown challenged the approach of the trial judge at appeal. 

In providing the opinion of the court, Lord Carloway said: “It is important to note at the outset that a judge does not have the power to direct a jury to return a not guilty verdict on the ground that no reasonable jury could convict. Where no issue of corroboration arises (and there is none in this case), it is only where there is no evidence from which a jury can infer that a fact in issue is proved that a no case to answer can be sustained.”

He continued: “The court is unable to agree with the trial judge’s assessment of the evidence and the inferences which can be drawn therefrom. First, there was, as the trial judge recognised, more than sufficient evidence to prove that the complainer was heavily intoxicated. The toxicology itself demonstrated very high levels of alcohol, sufficient in many people to induce a comatose state or even to cause death.”

He concluded: “When the police arrived at the hotel, the complainer was unable to recollect what had happened to her no more than a few minutes beforehand. She was confused and incoherent. All of this is sufficient for a jury to infer that at the time of the act of admitted sexual intercourse the complainer was not capable of consenting to that act.”

The appeal court repelled the no case to answer submission.