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[1] ������ This is an appeal by way of reference from the Criminal Cases Review Commission (CCRC) pursuant to the powers contained in Part II of the Criminal Appeal Act 1995 in respect of the applicant�s conviction for rape allegedly committed on 18 July 2008. At the end of the oral hearing we allowed the appeal and reserved our reasons which we now give.
[2] ������ The complainant is a 23 year old woman who was living on her own in a small terraced house in the Donegall Road area of Belfast. She became acquainted with the applicant who was a good friend of her boyfriend, S, whom she had been seeing on a casual basis since September 2007.
[3] ������ The applicant and complainant spent a day in each other�s company before Christmas 2007. At the end of the night the complainant was drunk and the applicant drove her home. When she awoke the next morning they were in bed together. She was naked from the waist down and he was completely naked but wearing a condom on his penis. The complainant asked him if they had sex but he told her �no, you were too drunk�. The complainant had subsequent conversations with the applicant and told him she was not interested in a relationship with him.
[5] ������ On Thursday 17 July 2008 the complainant returned to her home around 5.15pm with some friends and they were having a few drinks. The other friends left gradually until only the complainant and a female friend, CH, remained. The complainant drank 7 bottles of Stella Artois lager and a large vodka and �red bull�. Her boyfriend, S, and the applicant arrived at her house around 1.00am. The complainant shared her second vodka and �red bull� with the applicant and then sat with S. The complainant had no further recollection of what happened that night.
[6] ������ CH stated that when the applicant arrived he was smoking a joint and he gave her 6-7 draws of it. She was not sure if the complainant had any of the joint or not. CH said that the complainant went upstairs around 2.00am and got into bed with her clothes on. The two men left and S said he would be coming back. CH went upstairs and chatted for a short time with the complainant. The complainant was coherent and �not out of it drunk�. CH then left the house.
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