The Court of Appeal has dismissed T.E.’s appeal against his conviction for rape, rejecting all grounds pursued on appeal. The court acknowledged that the trial judge had misstated the law on recklessness but concluded that the error did not create an appreciable risk of injustice in the circumstances of the case.
T.E. was convicted by a jury in the Central Criminal Court on 22 May 2013 of rape under the Criminal Law (Rape) Act 1981, as amended. He was acquitted by direction of the trial judge on a separate sexual assault count. In February 2014, he was sentenced to seven years and six months in prison, with the final three years and six months suspended on conditions. His appeal challenged the conviction only.
The case concerned an encounter on 5 July 2010. The complainant, identified in the judgment as Ms F.M., testified that she went with T.E. to a house believing she would clean it. She said he later touched and kissed her, and that intercourse took place without her consent. She testified that she had said no and complied because she feared he might hurt her. T.E. accepted that intercourse occurred but said it was consensual and that he believed she was willing.
The appeal court rejected T.E.’s argument that the evidence was too weak and inconsistent for the case to have gone to the jury. It held that the weaknesses and inconsistencies were matters for jurors to assess, and that the trial judge was entitled to refuse to withdraw the case.
On recklessness, the appeal court said the trial judge was wrong to tell the jury that recklessness could include failing to give any thought to a risk. The legal test required the accused to have recognised the relevant risk and continued regardless. But the court said that failure-to-consider scenario was not part of the defence case at trial: T.E.’s position was that he believed the complainant consented. No objection had been made to the jury direction at trial, and the appeal court declined to allow the new challenge, finding no fundamental injustice that required intervention.
The court also rejected a challenge to the trial judge’s direction on corroboration. The judge had told jurors that evidence of distress could amount to weak corroboration and that they had to consider its quality and independence. The appeal court said it was for the jury to decide whether the complainant’s distress, described by a witness later that evening, was independent and corroborative.
The court dismissed the appeal against conviction.