R v Dowden

The appeal by the appellant, Dowden, against his conviction for one count of rape was heard by the court. The central issue in the trial was the matter of consent, with the jury ultimately rejecting the appellant's claim. Dowden argued that the prosecutor's comments during the trial amounted to a reversal of the onus of proof by suggesting that if the complainant's account was false, it must have been the product of deliberate lying. The appellant further contended that the prosecutor's observations placed the burden on him to demonstrate why the complainant would maintain a false allegation and to explain her distressed state following the incident. Additionally, Dowden raised concerns about potential partiality in the jury due to his custodial status throughout the trial and alleged deficiencies in the conduct of his defence counsel.

The court examined whether the prosecutor's comments constituted a reversal of the onus of proof, noting that the onus remains with the prosecution to prove guilt beyond reasonable doubt. The court concluded that the prosecutor's remarks did not shift the onus of proof onto the appellant. Regarding the potential partiality of the jury, the court found no direct evidence to suggest that the jury was aware of the appellant's custodial status and thus found no miscarriage of justice on this ground. The court also considered the conduct of the defence counsel, determining that any deficiencies were within the bounds of legitimate forensic strategy and did not prejudice the appellant's case. The court further held that the jury was entitled to accept the complainant's evidence as credible and that the finding of guilt was open to them based on the evidence presented.

Given the evidence of the appellant's spermatozoa found in the complainant's vagina, the court concluded that the conviction was supported by the evidence and dismissed the appeal against conviction. However, the court allowed the appeal against the sentence, finding it manifestly excessive. The original sentence of nine years imprisonment was set aside, and a sentence of eight years imprisonment was substituted. The court noted that the original sentence was excessive considering factors such as the appellant being a stranger to the complainant, the relatively harmless weapon used, the absence of significant violence, and the lack of threats of harm or retribution. The appeal against sentence was thus allowed, and the sentence imposed at first instance was set aside, with an eight-year imprisonment sentence substituted in its place.