The Court of Appeal has dismissed E.D.’s appeal against his conviction for rape, finding that the jury directions on recklessness and consent were sufficient and that the trial was fair. The judgment addressed conviction only; E.D.’s separate appeal against his ten-year sentence was not decided in it.
E.D. was convicted by a jury at the Central Criminal Court on 30 November 2016 of one count of rape. He had also faced a burglary charge and was acquitted of that charge. The rape conviction arose from an incident on 23 July 2014 involving complainant MT. The judgment records that sexual intercourse took place, but that the parties disputed whether it was consensual.
MT’s account was that E.D. entered her apartment while she was in bed, forced her downstairs and outside, assaulted her and raped her against her will. E.D.’s defence, as described in the judgment, was that MT left the apartment voluntarily and they had consensual sex outside. The court said the accounts were clear and directly opposed, and that mistaken belief in consent had not been part of the defence.
E.D. argued that the trial judge should have given further directions to the jury on recklessness and consent after defence counsel raised those matters. The Court of Appeal held that the trial judge had sufficiently addressed recklessness to the extent appropriate in light of the evidence. It noted that the judge had explained recklessness in terms of an accused being aware of a risk that the complainant was not consenting and proceeding regardless.
The jury later asked for the legal meaning of consent. The trial judge told them consent was a question of fact, to be assessed from the evidence and the complainant’s state of mind. He summarised the prosecution and defence accounts, including the prosecution evidence of violence and resistance. He also reminded the jury that a failure to resist does not, by itself, amount to consent.
The appeal court rejected the claim that this explanation was inadequate, saying it was given in plain and understandable language. It concluded that the trial was fair and that the verdict was reasonably open to the jury on the evidence. The appeal against conviction was dismissed.