Messages about sexual prowess and a conquest “game” should not have been heard at the trial of a cricketer convicted of rape, the Court of Appeal has been told.
Alex Hepburn, 24, was jailed for five years in April last year for the attack on a “dozing” woman in his team-mate’s bedroom, during the first night of a sexual conquest competition he helped set up on a WhatsApp group.
A jury had found Hepburn guilty of oral rape at a re-trial earlier in the month, but cleared him of a further count of rape relating to the same victim.
At the trial, the Australian-born former Worcestershire all-rounder was said by the prosecution to have been “fired up” by the contest to sleep with the most women, before carrying out the rape at his flat in Portland Street, Worcester, on April 1 2017.
At a hearing in London on Thursday, where Hepburn is challenging his conviction, three senior judges, including the Lord Chief Justice Lord Burnett, were told that messages presented to the jury did not show that Hepburn was willing to have sex with a woman without consent.
Many of the messages related to a game between Hepburn and a number of others to gain sexual encounters, the court heard.
Hepburn’s barrister, David Emanuel QC, said: “The idea propagated by the Crown, that he was so desperate to win the game this year that he would ignore true consent if he had to, is just not supported by anything in the messages or by the fact of the game itself.”
Mr Emanuel told the judges: “I accept it would be different if there was talk of sex against will, or trickery to gain a point, or taking a chance, but there’s nothing like that in the messages.
“They are too far removed as to be able to be to do with the facts of the alleged offence.”
Mr Emanuel also argued that the messages were prejudicial, and that the value of using them in the trial “was not overwhelmingly strong” because of “the lack of messages about not caring about consent”.
He also said that Hepburn’s conviction was unsafe because the verdicts were “inconsistent”.
Miranda Moore QC, representing the Crown Prosecution Service (CPS), argued that it was right that these WhatsApp messages were heard at the trial.
She told the court that “this wasn’t a bit of boyish banter at a point in time” but a “deep-seated and long-running game between a number of professional sportsmen”.
Ms Moore said: “It wasn’t, as suggested, motivation on the part of the prosecution to generate disgust, the motivation on the part of the prosecution was to shine a light on the appellant’s state of mind.”
Jailing Hepburn at Hereford Crown Court on April 30 last year, Judge Jim Tindal told the cricketer he and a former team-mate Joe Clarke had agreed to a “pathetic sexist game to collect as many sexual encounters as possible”, following a similar stunt the previous year.
In remarks about the WhatsApp chat group, the judge said: “You probably thought it was laddish behaviour at the time.
“In truth it was foul sexism.”
Lord Burnett said the court would give its ruling on Hepburn’s appeal at a later date.