HMA v Bilaal Afzal 2019

A crown has won an appeal against a successful no case to answer submission by the defence during a rape trial. The trial judge had ruled that the crown could not prove that the complainer had been asleep during the act of intercourse. The High Court of Justiciary, however, ruled that there was sufficient evidence to entitle the jury to convict and the case will now continue to the full trial diet. The alleged rape was said to have occurred in September of 2017.

The complainer states she was collected by the accused and a friend (Kamil) and had consensual sex with the friend before going to sleep. The complainer alleges that she then felt penetration from behind but believed it to be the friend of the accused so did not say anything but said she felt something different. The complainer stated she felt hazy during this period but had not said she was asleep during evidence. The trial judge accepted a defence no case to answer submission and stated the Crown required to prove that the complainer had been asleep during the attack – which they had not done by corroboration. The Crown appealed to the High Court and stated they only required to prove by law that the accused had penetrated the complainer and that the complainer had not consented by corroborated evidence.

The Appeal Court at the High Court in Edinburgh allowed the Crown’s appeal on this basis. Lord Justice General said: “The complainer gave evidence that she had not consented to having intercourse with anyone other than Kamil. There was scientific evidence that she had intercourse with someone other than Kamil. That other person was the respondent, as testified to by the witness and as demonstrated by the DNA findings. Taken at its simplest, the witness said that the complainer was asleep at the material time. There is scientific evidence of intercourse having taken place with the respondent. …That would entitle the jury to return a verdict of guilty of rape. There is a sufficiency of evidence in that regard.” The case will now return to the trial judge for the matter to continue at Trial.