HMA v SM 2019The Crown has successfully appealed against a decision of a Trial judge to sustain a no case to answer submission. The respondent SM had been charged and a trial began in respect of his partner’s rape and abduction. The complainer had stated she had consented to the sex to calm the accused down. The Trial judge allowed the defences no case to answer submission as the complainer had stated she had agreed for sex to take place and therefore the accused could not be convicted of rape.
However, the appeal court agreed with the crown argument that it was for the jury to decide if the woman, who was being held captive, could have given consent. The trial judges stated that after the complainer testimony there did not seem to be any evidence of lack of comment or fear in respect of the complainer. However, the Appeal Court did not agree.
Lord Justice General stated: “The issue is whether, taking the evidence of the complainer at its highest, the jury could infer a lack of consent as a matter of fact. There is enough from the complainer’s description of the whole circumstances for that inference to be drawn. She was effectively being held captive. The complainer explained that she agreed to have intercourse, not because she wanted to, but because, not unreasonably, she felt that she had to agree in order to defuse the situation. It is a matter for the jury to decide whether a captive having intercourse with her captor in such circumstances is to be classified as consensual intercourse or not. There is ample scope for holding that it is not, and that what occurred constituted the crime of rape. That is so, even if the respondent has a basis for arguing that he had an honest belief that the complainer was consenting.”