R v Ciccarelli
Court of Appeal
Citations:  EWCA Crim 2665;  Cr App R 15.
The defendant, his girlfriend and the complainant were at a party. When the complainant became very drunk, the defendant and his girlfriend took her back to their home and put her in a spare room. Later, the defendant got into the bed where the complainant was sleeping and touched her sexually.
The defendant was charged with sexual assault. At trial, he testified that the complainant flirted with him on one occasion at the party. He argued that he therefore reasonably believed that she would have consented to being sexually touched while asleep.
The prosecution sought a jury direction under s.75(2)(d) of the Sexual Offence Act 2003, which the judge granted.
s.75(2)(d) raises an evidential presumption that the complainant did not consent, and that the defendant lacked reasonable belief in consent, if they knew the complainant was asleep or unconscious. This can be rebutted if the defendant adduces ‘sufficient evidence…to raise an issue’ as to whether the complainant consented or the defendant reasonably believed in consent.
The judge directed the jury that the defendant had not raised sufficient evidence to rebut the s.75 presumption. They therefore directed the jury to find that the complainant did not consent and that the defendant did not reasonably believe she consented. The defendant was convicted. He appealed, arguing that the judge misdirected the jury.
- What constitutes ‘sufficient evidence to raise an issue’ over whether there is consent or reasonable belief in consent?
The Court of Appeal upheld the conviction. The defendant cannot raise sufficient evidence to raise an issue as to whether his belief in consent was reasonable merely by testifying that he believed that the complainant was consenting. More is needed.
In this case, the defendant based his belief on his perception that the complainant flirted with him once during the evening, even though when they had met previously their relationship had been completely non-sexual and non-romantic. There was no real evidence that the complainant was attracted to or flirted with the defendant. This raised no issue as to whether his belief that the complainant would consent to being touched while sleeping was reasonable. The judge therefore correctly directed the jury.
This Case is Authority For…
To rebut the presumptions under s.75, the defendant must provide evidence which is not ‘fanciful or speculative’ to suggest that either the complainant consented or that his belief in consent is reasonable.