Malik, R. v

Factual and Procedural Background

On 24 October 2024, at the Crown Court in The City, the Appellant was convicted by a majority of 10 to 1 of three counts of rape contrary to section 1(1) of the Sexual Offences Act 2003. On 3 October 2025 the Appellant, then aged 33, was sentenced to a hospital order under section 37 of the Mental Health Act 1983 with a restriction order under section 41. The Appellant obtained leave to appeal his conviction. The sole ground of appeal is that the convictions are unsafe because the trial judge should have upheld the defence submission of no case to answer at the close of the prosecution evidence.

The offending arose on or about 2 June 2020 at around 00:30 when the Complainant, aged 18, met the Appellant on a riverside path. The parties walked together, spent time on two benches and engaged in multiple sexual acts which the Complainant later reported to the police as having been carried out under fear and without consent. The Appellant denied rape in a prepared statement, asserting consensual sexual activity, and later exercised his right to silence for most interview questions. The prosecution's case relied principally on the Complainant's ABE prerecorded interview and testimony from several witnesses (friends, family, police and the Uber driver), while the defence maintained the sexual activity was consensual.

Legal Issues Presented

1. Whether the trial judge erred in refusing the defence's submission of no case to answer (the second limb of Galbraith) such that the convictions are unsafe.
2. Whether there was sufficient evidence for a jury properly directed to find that the Appellant did not reasonably believe that the Complainant consented (i.e. sufficiency of evidence as to lack of reasonable belief in consent).

Arguments of the Parties

Appellant's Arguments (Attorney Dannhauser)

• The prosecution evidence on the Appellant's reasonable belief in consent was so weak and contradictory that no jury properly directed could safely convict.
• Features of the Complainant's conduct (absence of explicit refusal, neutral verbal responses such as "Oh, wow", physical proximity, CCTV suggesting willing participation) indicated at least acquiescence and supported a reasonable belief in consent.
• Where viewed from what was apparent to the Appellant, there was nothing from which he could reasonably have concluded the Complainant was not consenting; thus the judge should have stopped the case.

Respondent's Arguments (Attorney Price)

• The judge's ruling was correct, involved no error of law or principle, and was a reasonable conclusion.
• The issues raised about reasonable belief in consent were matters for the jury; the prosecution does not need evidence that the complainant explicitly said "no" (relying on R v Malone and R v H).
• A relevant consideration on the facts was that the Appellant had not taken steps to ascertain consent, although there is no general duty to ask.

Table of Precedents Cited

Court's Reasoning and Analysis

The court set out the statutory test for rape in section 1 of the Sexual Offences Act 2003, highlighting subsections (1)(c) and (2): (1)(c) requires that A does not reasonably believe that B consents, and (2) directs that whether a belief is reasonable is determined having regard to all the circumstances, including any steps A has taken to ascertain consent.

The court accepted that subsection (2) does not impose a legal duty to ask for consent; rather, whether steps were taken is a matter for the jury depending on the facts. The court also referenced Crown Court guidance (Compendium) to the same effect.

The court enumerated specific facts known to the Appellant (as drawn from the evidence):

1. The Complainant was 18, intoxicated and upset and had told the Appellant so.
2. The Complainant was alone on a river path with limited escape route.
3. It was late, dark and the Appellant was a stranger.
4. The Appellant had followed her, made sexual comments and described her appearance.
5. The Appellant made explicit sexual remarks and asserted he was "very horny".
6. The Appellant was physically bigger, carried a backpack, talked to himself and mentioned violent acts and a gun; the Complainant did not know what was in his backpack.
7. The Appellant grabbed, kissed and touched the Complainant; he used an authoritative tone to make her remove clothing.
8. The Complainant's account was that she consented to nothing, was not aroused and was penetrated after the Appellant used Vaseline.
9. The Complainant told the Appellant she was not there for sex and expressed a wish to go home at points during the encounter.

The court concluded these matters were more than sufficient from which a jury could conclude the Appellant did not reasonably believe the Complainant consented. While acknowledging the defence points (neutral responses, some apparent acquiescence, CCTV), the court considered those to be matters for the jury and not so cogent as to render the prosecution case untenable under the second limb of Galbraith. The court distinguished R v H as principally concerning actual consent, but adopted that the jury ordinarily determine consent-related factual disputes. Applying the Galbraith test, the court found the prosecution evidence was not so weak or tenuous as to require withdrawal.

Holding and Implications

APPEAL DISMISSED

Holding: The court held that there was sufficient evidence for a jury properly directed to convict on the issue of reasonable belief in consent; the conviction is safe and the appeal is dismissed.

Implications: The direct effect is that the Appellant's convictions and sentence remain in place. The court treated contested credibility and inferences about reasonable belief as matters for the jury and did not establish a new legal rule beyond applying existing statutory tests and authorities.