Intoxication and Consent in Sexual Offences

摘要

The appellant accepted engaging in sexual activity with the complainant, M, on a date in May 2010, and when both parties were very dunk. Following trial the appellant was convicted of one count each of rape, assault by penetration, and sexual assault, the matter in issue having been consent. The appellant appealed against conviction on the basis that the trial judge did not sum up to the jury adequately the distinction between whether M was unconscious and therefore lacked the capacity to consent or was conscious and despite being drunk retained that capacity. Further, the appellant submitted that his conviction was unsafe because the judge did not explain that a regret once sober cannot extinguish an earlier drunken consent if it was validly given, and in particular did not use the words 'a drunken consent is still a consent'.