Note of appeal against conviction by Michael Cowan against HMA (High Court of Justiciary)

Factual and Procedural Background

On 1 September 2023, the Appellant was convicted of rape and sentenced to four years' imprisonment. The charge alleged that on 22 February 2020, the Appellant sexually assaulted the Complainer while she was asleep or unconscious, removing her lower clothing and penetrating her vagina without consent, contrary to section 1 of the Sexual Offences (Scotland) Act 2009. During trial, certain descriptive words were deleted following a submission under section 97A of the 1995 Act. The Crown's case relied on the Complainer being asleep at the time of penetration, a position which influenced the judge's directions to the jury. The Appellant appealed on grounds that there was insufficient evidence that the Complainer was asleep at the material time and that the verdict was unreasonable. On 31 July 2024, the appeal was refused, and this opinion provides the detailed reasoning.

Legal Issues Presented

1. Whether there was sufficient evidence that the Complainer was asleep or unconscious at the time of penile penetration.
2. Whether the verdict of guilty was unreasonable on the evidence presented.

Arguments of the Parties

Appellant's Arguments

• The concession made at trial that the Complainer was asleep or unconscious was wrongly made and not binding.
• There was no evidential basis for the jury to infer that the Complainer was asleep or unconscious when penetration began.
• The Complainer's evidence was vague, rendering the jury's verdict unreasonable.

Crown's Arguments

• Although the concession was not binding, there was sufficient evidence that the Complainer was asleep or unconscious at the material time.
• There was a clear evidential basis for the jury's verdict of guilty.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
HM Advocate v Bilaal Afzal [2019] HCJAC 37	Clarification that the Crown must prove lack of consent, not necessarily incapacity to consent.	Used to highlight the Advocate depute's erroneous focus on proving the Complainer was asleep rather than on consent, indicating the jury could infer non-consent even if not satisfied she was asleep.
Van Der Schyff v HM Advocate [2015] HCJAC 67	Similar principle regarding proof of consent versus incapacity to consent.	Supported the court's view that the Crown's approach was incorrect and the jury should have been directed accordingly.
Geddes v HM Advocate 2015 JC 229	Standard for appeal against verdict on ground that no reasonable jury could have returned it.	Confirmed the high threshold for overturning a verdict on unreasonableness grounds.
Harris v HM Advocate 2012 SCCR 234	Reinforcement of the exceptional nature of overturning jury verdicts on reasonableness grounds.	Supported the court's conclusion that the verdict was not unreasonable.
Harper v HM Advocate 2005 SCCR 545	Clarification of the statutory test for unreasonableness of verdicts under section 106(3)(b) of the 1995 Act.	Applied to conclude that the evidence provided a rational basis for the jury's verdict.

Court's Reasoning and Analysis

The court identified a fundamental error in the Crown's approach at trial, where the Advocate depute focused exclusively on proving that the Complainer was asleep or unconscious at the time of penetration, rather than on whether the penetration occurred without consent as required by law. The court emphasized that precedents such as Bilaal Afzal and Van Der Schyff make clear that the critical issue is lack of consent, not necessarily incapacity to consent.

Despite this error, the court found sufficient evidence to support the jury's conclusion that the Complainer was asleep or unconscious when penetration began. The Complainer's testimony indicated that she regained consciousness with the Appellant next to her, her clothing displaced, and feeling the tip of his penis at the start of her vagina, which legally constitutes penetration under the Sexual Offences (Scotland) Act 2009. The Complainer's description of partial penetration and her subsequent actions upon waking provided a rational basis for the jury's verdict.

Regarding the appeal ground that the verdict was unreasonable, the court reiterated the high threshold for overturning jury decisions under section 106(3)(b) of the 1995 Act. It held that even if the evidence could be interpreted in multiple ways, there was ample basis for a properly directed jury to find guilt beyond reasonable doubt. The court noted that the jury were deprived of directions on inferring non-consent independent of incapacity, but this did not render the verdict unreasonable.

Holding and Implications

The court REFUSED the appeal against conviction.

The direct effect is that the Appellant's conviction and sentence remain intact. The opinion clarifies the importance of proper jury directions regarding consent and incapacity but does not establish new precedent beyond reaffirming existing principles. The decision underscores the robustness of jury verdicts where there is a rational evidential basis, even if some procedural imperfections occurred during trial.