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R v Ciccarelli [2012] 1 CR App R 190

Intoxication – Rape – Consent - Reasonable Belief to Consent – s75 Sexual Offences Act 2003 – Prosecution Have Burden to Disprove Consent Evidence

Facts

The incident took place at a house party with the complainant in attendance, as well as the defendant and his girlfriend. They had met three times before the party, where no acts or instances indicated there was an attraction or relationship between them. The defendant had alcohol at the party, as well as a suggestion of drugs. The complaint was intoxicated and fell asleep in the defendant’s spare room. She woke up to find the defendant on top of her and she told him to get off. While the defendant admitted the incident happened, he argued that he had reasonable belief she had consented, pointing to her behaviour at the party and supposed sexual advances towards him.

Issues

The defendant pled guilty to sexual assault, but appealed conviction. The trial judge had held there was not enough evidence for reasonable belief of consent in this case. The issue was whether there was sufficient evidence for reasonable belief of consent under s75 of the Sexual Offences Act 2003 and if this should have been left to the jury.

Held

The appeal was dismissed. The Lord Chief Justice stated on behalf of the Court that there was not sufficient evidence of reasonable belief to consent from the party under s75 of the Sexual Offences Act 2003. This evaluation of the evidence by Jude Mowat had been justified. When there is sufficient evidence in a case, the prosecution would have the burden to disprove consent. But, this evidence concerning consent had to more than speculative.


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