The Court of Appeal has dismissed M.B.’s appeal against a sexual assault conviction, ruling that the jury could consider that alternative verdict after finding that penetration had not been proved beyond reasonable doubt.
M.B. was convicted on 26 May 2022 of sexual assault under section 2 of the Criminal Law (Rape) (Amendment) Act 1990. The sole indictment charge was section 4 rape, of which the jury found M.B. not guilty. The appeal challenged the safety of the sexual assault conviction on the basis that the evidence allowed only a guilty or not guilty verdict on the rape charge.
The offence was alleged to have occurred on 20 July 2019. The complainant was eight and M.B. was 14 at the time. The judgment says the complainant stayed at her uncle’s house with M.B. while her parents attended a wedding. The next day, after being collected, she disclosed sexual offending to her mother and was examined at a Sexual Assault Treatment Unit.
In interviews, the complainant described M.B. trying to penetrate her anus and later said he had done so. She confirmed penetration in evidence. Her mother testified that she saw bruising, including marks resembling a handprint on the complainant’s bottom and bruising on her thigh and back. A medical examination found non-specific redness around the anus and no other injury. The doctor said several forms of sexual contact would not be expected to cause injury to a child’s anatomy.
M.B.’s appeal argued that because the prosecution evidence was that penetration occurred, the trial judge should not have allowed the jury to consider sexual assault as an alternative. The Director of Public Prosecutions argued that section 8(3) of the 1990 Act expressly permits that verdict where the evidence does not warrant conviction for section 4 rape but does warrant conviction for sexual assault.
The Court of Appeal said the jury could find that penetration had not been proved beyond reasonable doubt, while still deciding that sexual assault had been proved. It noted evidence the jury could consider, including removal of or causing the complainant’s underwear to be removed, exposure of M.B.’s penis and contact with the complainant’s bottom. The court said the trial judge was entitled to explain the alternative verdict and dismissed the appeal.