R v Kamki (Gael Tameu)
Court of Appeal
Citations:  EWCA Crim 2335.
The appellant was at a student party where everyone was very drunk. Late in the night, the complainant’s friends carried her up to a room and put her to bed next to her boyfriend, who was already asleep. Those friends testified that the complainant was very drunk and did not seem to be aware that she was being carried. A friend who later went to check up on her found that she had vomited on her clothes.
Afterwards, the appellant entered the room and had sex with the complainant. He argued that while the complainant was initially asleep, she began to reciprocate and he honestly and reasonably believed that she consented. However, when confronted the next morning by the complainant’s boyfriend, the appellant denied having sex with her. The complainant remembered little of what had happened.
The appellant was convicted of convicted of rape, assault by penetration and sexual assault contrary to the Sexual Offences Act 2003. He appealed on the basis that the judge misdirected the jury on the issue of consent.
The Court of Appeal upheld the conviction. The jury had been properly directed on the meaning of consent and the relevant issues in the case.
This Case is Authority For…
The Court gave guidance on the elements which should be included in a jury direction in a case where consent may be impaired or absent due to alcohol:
- A person only consents if they agree by choice with the freedom and capacity to do so;
- An unconscious person has no freedom or capacity for choice;
- A conscious but drunk person can have the capacity to choose, even if the alcohol disinhibits them;
- However, alcohol can remove a person’s capacity to choose before the point of unconsciousness;
- The jury must therefore assess whether the complainant had the capacity to choose based on their degree of consciousness and the impact of the alcohol on her capacity to consent.
- If the jury concludes that the complainant did have capacity to choose, they must then separately assess whether they actually consented.