HMA v Bilaal Afzal 2019A 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.