The Court of Appeal has dismissed Liam O’Brien’s appeal against his conviction for rape, finding that the jury had evidence from which it could infer the complainant’s lack of consent and that the verdict was not perverse.
O’Brien was convicted on 23 April 2021 of rape under section 48 of the Offences Against the Person Act 1861 and section 2 of the Criminal Law (Rape) Act 1981, as amended. The appeal, decided on 11 November 2022, challenged the trial judge’s refusal to direct an acquittal and argued that the jury’s verdict was perverse.
The judgment recounts that the complainant was 15 at the time of the events on 27 October 2016. She testified that O’Brien and a co-accused were with her in a secluded place known as “The Sheds.” She described moving away when the co-accused touched her, then returning after he said he would stop. She said the co-accused resumed touching her, and that O’Brien later reached towards her. She testified that she nodded no, but O’Brien called her “no fun” and put his hand in her pants. She said he then had intercourse with her. The co-accused was acquitted of rape by direction and of attempted rape by the jury.
O’Brien argued that the prosecution had not proved absence of consent because the complainant had not expressly said in her testimony that she did not consent. The prosecution submitted that her actions and the circumstances provided evidence of that element. The Court of Appeal said some evidence of absence of consent is required before a rape charge may be left to a jury, and that its form depends on the circumstances. It held that the complainant’s movement away, her nod, the events leading up to intercourse and O’Brien’s response were circumstances the jury could assess. The jury, not the appeal court, had to decide whether the prosecution had proved absence of consent beyond reasonable doubt.
The court also rejected O’Brien’s argument that it was illogical to convict him while acquitting the co-accused. It said a jury may rationally reach different conclusions about separate accused, even where the alleged events occurred at the same time. The co-accused had given evidence; O’Brien denied being at the scene. The court found evidence capable of supporting the verdict, said the jury had been properly directed and concluded that the high threshold for overturning a verdict as perverse was not met.
The appeal against conviction was dismissed.