The Court of Appeal quashed a man’s sexual assault conviction after finding that the trial judge wrongly told the jury it could take the complainant’s belief into account when deciding whether the offence was proved.
In an ex tempore judgment delivered on 5 July 2019, the court allowed the appeal on the sole ground pursued: that the trial judge had erred in the jury charge. It did not determine whether the alleged events amounted to sexual assault. The court said the incident’s circumstances were capable of being regarded as indecent by a properly directed jury.
The man had been convicted by a jury of sexual assault under section 2 of the Criminal Law (Rape) (Amendment) Act 1990. He had also pleaded guilty to burglary and received a three-and-a-half-year prison sentence for that offence. The sexual assault sentence was 18 months, concurrent with the burglary sentence. The appeal concerned only the sexual assault conviction.
The judgment said the incident occurred in the early hours of 15 June 2014. The complainant told the trial that, after the duvet covering her slipped, the man grabbed at her. She said she thought he was going to rape her. The judgment also recorded that two phones were missing from her apartment and were later recovered from the man’s car. A fingerprint found in the apartment matched his.
At the appeal, counsel for the man argued that the complainant’s state of mind was irrelevant to whether the offence’s elements had been proved. The Director of Public Prosecutions agreed on that point, while arguing that the court should assess the whole of the evidence and the judge’s charge.
The Court of Appeal said sexual assault requires an intentional assault, circumstances that are objectively indecent, and an intention to commit an indecent assault. It held that the complainant’s belief or opinion about the circumstances was not relevant to the jury’s decision. Although the trial judge properly told jurors to consider all the evidence and surrounding circumstances, the court found that permitting them to consider the complainant’s belief, even “only to some degree”, was an error in principle.
The court therefore quashed the sexual assault conviction and allowed the appeal. The judgment does not state what further proceedings, if any, followed.