Husband fails in second bid to challenge holiday rape conviction

Thursday 11 April 2024

A man found guilty of raping his wife while on holiday has had a second attempt to challenge his conviction rejected – but the Royal Court did find "failings" in part of the investigation.

The man – who cannot be named for legal reasons – was found guilty of one count of rape by unanimous verdict in 2020 and has now served his four-and-a-half-year prison sentence.

A jury found he had raped his wife on the last day of a holiday away from the island.

The man had accepted having had sexual intercourse, but maintained it had been fully consensual.

He first appealed his conviction before the Court of Appeal in July 2020 with his lawyer arguing that no reasonable jury would have reached the conclusion it did.

However, the Court of Appeal dismissed this appeal against conviction.

Judgments published this week have since shown how, in November 2022, the man asked the Lieutenant Governor to exercise his powers to refer the case back to the Court of Appeal. 

The Lieutenant Governor considered the evidence and declined to make the reference, ruling that "there was not a real possibility that the Court of Appeal would overturn the conviction".

In May 2023, the man asked the Royal Court to review the Lieutenant Governor's decision, but this was dismissed by Commissioner Sir John Saunders.

He concluded that the Lieutenant Governor "was perfectly entitled to come to the conclusions that he did on the evidence he had".

The man's appeal was based on expert evidence which was not put forward at the trial.  

The Commissioner said in his judgment that "the real nub" of the man's application was his contention that the decision of the Lieutenant Governor was "irrational".

There are two areas where the man claims that his arguments have been misunderstood: the ‘emails’ and ‘the hacking’.

Five word documents were produced at trial by the man's then-wife, which she said she had sent to her husband as attachments to e mails. 

"The word documents dealt in detail with problems that existed in the marriage in particular that the [husband] wanted sex more often than she did," the judgment read.   

"It also dealt with his relationship with one of his female clients to whom he said he was emotionally attached."

The man's case was that there is no evidence which shows that the word documents in the trial were attached to emails sent to him.

However, the Commissioner found that the man answered questions on the word documents during his trial, "and never suggested that they did not reflect communications going on between [him and his wife] at the time". 

"On that basis the Respondent found that to say now that the word documents produced at the trial were not seen by him would be a significant change in his sworn evidence which would not be permitted by the Court of Appeal," added Sir John.

The second aspect of the man's appeal argument centred on the way the admitted hacking of the man's computer by his then-wife was dealt with by the police.

The Commissioner explained that the suggestion behind this was that, "because his wife was able to access his computer, she would have had the opportunity to alter or delete the emails before the police got access to them in order to cover up a plan to ruin the [her husband]".

However, Sir John found that the man was aware of the fact that his wife had access to his computer before the trial.

This could have therefore been investigated at the time if the man had voiced his concerns that his emails had been corrupted in any way by his wife.

The man claimed that he "alerted his lawyers to the question of hacking and the need to explore it properly".

However, the Commissioner said: "I have read the correspondence relied on to support that and, while the [man] mentions the hacking to his advocate, he never makes any suggestion that I can find that the extent of the hacking needs to be explored."

Based on this evidence, Sir John concluded that the fresh evidence relied upon to support these arguments was unlikely to be admitted in the Court of Appeal as it could have been obtained in advance of the man's original trial. 

The man also complained that "there are a large number of messages which must be relevant to his case that have not been disclosed".

When considering his appeal, the Lieutenant Governor agreed that the message download should have been taken at an earlier stage as this removes the possibility of corruption of the data, but found that "there was no evidence in fact that the data had been corrupted or interfered with".

The messages requested by the police covered several months preceding the alleged offence and two months following it, which the Lieutenant Governor concluded was an "appropriate period".

Sir John said: "If the defence at trial had wanted a longer period [of messages] for the review they could have requested an order from the Judge."

The Commissioner also found that there was no evidence to suggest that any of the messages not disclosed were relevant to any of the issues in the case.

Specifically, the man suggested that he had been prejudiced as the undisclosed messages would have shown that his wife had wi-fi whilst on holiday and therefore could have told her friends about the rape earlier than she did.

However, the Commissioner found that this issue was already addressed during the man's trial.

When the wife was questioned, she accepted that she did have wi-fi at the hotel on holiday.

Sir John explained: "He said she had not got her thoughts together to enable her to message her friends while she was at the hotel and the resort. 

"This issue was therefore investigated at the trial and could have been pursued further if they were the [man's] instructions. 

"The jury had the chance to assess whether [the wife's] answers were truthful and what weight they should give to the recent complaint evidence."

He concluded: " There was no evidence that anything relevant to the jury’s decision which should have been disclosed has not been disclosed and therefore might have affected the verdict."

Overall, the Commissioner was satisfied that there are no grounds for judicially reviewing the decision of the Lieutenant Governor to reject the man's plea for a referral to the Court of Appeal.

"There needs to be finality in legal proceedings and particularly criminal proceedings," said Sir John. 

"That does not mean that miscarriages of justice should be allowed to stand, they should not.

"In this case the jury were sure that the [man's] wife told the truth and that the [man] raped her."

The man then applied to challenge the decision not to allow a judicial review. 

Further arguments regarding the way in which his phone had been searched and handled during the investigation were put forward in a hearing in January 2024.

"There were failings in the way the police dealt with the phone," the Commissioner said in his judgment, adding that it was "accepted that the phone should have been seized at an earlier stage"

However, he continued: "...There do appear to be a number of undisclosed messages which may have been deleted but is there anything in the arguments put forward by the Applicant which means that an appeal would have a real prospect of success at this stage? To succeed on appeal, the Court would have to draw the inference that there was or may well have been material in those messages which would assist the Applicant’s case that he did not commit the rape."

Having considered the matter further, the Commissioner found that, despite the "shortcomings in disclosure", there was "no basis for drawing an inference" that this resulted in material not being available to the defendant.

He also reiterated that there was "no evidence" to support any suggestion that the allegation was the result of a "conspiracy between the complainant and her friends".

Dismissing the application for leave to appeal, Sir John said: "As can be seen by correspondence between trial counsel and the Applicant the advice he was being given at the time of the trial was that he should concentrate on the events which happened at the time of the alleged rape. The trial was conducted on that basis. 

"It is not open to the Applicant to try and change his approach now.  A trial is a one-off event, and it is not possible to try a different approach if the tactics adopted at trial are not successful."