yet she stayed with him and sounded as if she enjoyed herself
Key and Undisputed Facts
On Sunday **th ***** 201* Ched invited his friend Clayton McDonald to travel to his home town of Rhyl for a night out. Ched and Clayton had been friends for many years and lived with each other when they were both young footballers at Manchester City.
When Clayton agreed to come to Rhyl, Ched booked a room at the Premier Inn on his own credit card. He gave the name of Clayton McDonald as the lead person who would be staying in the room along with another friend of his.
With a number of other friends, Ched and Clayton visited a few bars and ended up at a nightclub in Rhyl. They left the nightclub around closing time and went to a kebab shop.
On the same night, a 19 year old complainant, who cannot be named for legal reasons, was also having a night out in Rhyl. She had been working on the Sunday evening and so had gone out late. She arrived at the nightclub in Rhyl at about 1:45am. There was no contact between Clayton or Ched and the complainant in the nightclub.
Prior to arriving at the nightclub, at around 11pm, the complainant had consumed 2 large glasses (250ml) of wine after finishing her shift. She then went home, showered, changed her clothes and caught a taxi into Rhyl town centre. Whilst in the nightclub she stated in her evidence that she consumed 4 double vodka/ lemonade drinks and a shot of Sambuca. It was accepted at the trial that this amount of consumption would have placed her at approximately 2.5 times the legal drink drive limit. The complainant submitted in evidence that she would normally and regularly drink well in excess of what she had consumed on this particular night out.
Just prior to leaving the nightclub at 02:54 the complainant sent a text to her friend. The text read “Where are you? x”
The complainant then left the nightclub at approximately 3:00am. There was no evidence that she had consumed any more alcohol over and above that which she stated she had consumed, nor was there any evidence that she had taken drugs in the nightclub or after leaving the nightclub. The friends who were with her on the night all testified that she was not particularly drunk.
CCTV footage showed the complainant squatting down outside the nightclub and rummaging through her bag. She then walked a few hundred metres to the kebab shop.
The complainant spent about an hour at the kebab shop. CCTV footage from inside the takeaway showed the complainant:
engaging in conversation with numerous other people;
sharing and helping herself to food from other people;
ordering food at the counter, she paid with the correct money using change from her purse;
pushing away a man who was making advances to her; and
twisting her ankle, turning her high heeled wedge shoe and falling over backwards.
When the complainant fell over, Clayton was sat down looking at his mobile phone – he glanced up and then continued to look at his phone. Ched was entering the kebab shop just after the complainant had stumbled over and he was forced to step over her. The complainant then got back to her feet and continued to talk and eat.
The complainant left the kebab shop and walked up Queen Street. CCTV footage outside the kebab shop and on Queen Street showed her:
unstable on her feet walking up Queen Street;
unstable on her feet crossing the road;
squatting in a doorway;
urinating in a doorway; and
reacting to a car that flashed its lights at her.
An unrelated incident occurred in Queen Street involving one of Ched’s friends who suffered an unprovoked attack from a girl who began by racially abusing him before headbutting him in the face. This led to the arrest of his friend and this girl. This incident also led to Ched and Clayton becoming separated.
During the period of separation the complainant is clearly seen in the CCTV footage approaching Clayton at a street corner. A brief conversation ensued and within seconds the two of them got in a taxi which she had flagged down. In his evidence Clayton stated that the complainant asked him where he was going, he replied that he was going back to his hotel to which she replied “I’m coming with you”. The taxi driver was concerned about food being consumed in the back of his vehicle. He asked the complainant to get out of the back seat and into the front, which she did whilst carrying a large pizza box. The taxi driver also noticed that the complainant’s blouse was unbuttoned but that she was able to button it up. They left in the taxi heading for the Premier Inn.
Not long after Clayton and the complainant had got into their taxi, Ched flagged down another taxi a few streets away and accompanied by his brother and his brother’s friend he headed off from Rhyl in the direction of St Asaph Police station in order to give a statement to the police in support of his friend who had been arrested and taken to the Police station. This was confirmed by the testimony of the taxi driver.
On the way to the Premier Inn Clayton sent a message to Ched saying words to the effect of ‘I am with a girl'.
The Premier Inn is situated on the route from Rhyl to St Asaph Police station. The taxi driver testified that Ched gave him a last minute instruction to divert to the Premier Inn. The taxi arrived at the Premier Inn approximately 10 minutes after Clayton and the complainant had arrived. Ched said that he had diverted the taxi because he was curious as to who the girl with Clayton was and he wanted to find out. Ched asked the taxi driver to wait saying he would only be a few minutes but after his brother and brother's friend left the car, the taxi drove away.
When Clayton and the complainant arrived at the Premier Inn. CCTV footage showed:
The complainant get out of the front seat of the taxi holding a large pizza box;
The complainant indicating to Clayton that she had left her handbag in the departing taxi (she was in fact mistaken, she had left it outside the kebab shop);
Clayton chasing the taxi to look for the handbag;
The complainant appearing steady on her feet, linking arms with Clayton and walking with him through the hotel foyer.
Halfway through the foyer the complainant realised that the pizza box had been left outside. She de-linked arms, turned around, retrieved the box and carried it one-handed back to the waiting Clayton.
Whilst in the foyer, the night porter gave evidence that he heard the complainant say to Clayton in a slurred voice “you’re not going to leave me are you?” He also said that she looked drunk.
Clayton and the complainant entered Room 14 of the Premier Inn and according to his evidence, after very brief foreplay whilst sat on the edge of the bed, they started having sexual intercourse.
Having arrived at the Premier Inn 10 minutes after Clayton and the complainant, Ched entered the reception area. He obtained a further keycard for Room 14. He said to the night porter that his friend had decided not to come back to the room and as the room had been booked on his credit card he had decided to use the room himself.
Having obtained the keycard, Ched walked down the corridor and entered Room 14. From this point onwards it should be remembered that the only evidence as to what happened in Room 14 came from the accounts given by the two accused men who were in the room and the night porter who was listening at the door outside. The complainant claimed that she could not remember anything of what happened in the room.
On entering the room Ched said that he did not know what to expect but he quickly realised that his friend, Clayton, was engaged in sexual intercourse with a girl. In his evidence he stated that the door clunked behind him and this caused both Clayton and the complainant to turn around and to look at him. He said that he made direct eye contact with the complainant. At this point according to the evidence of both Clayton and Ched the question of whether Ched could “join in” was asked of the complainant, they both said that she replied with a positive “yeah”. Both of the accused thought that the other had asked the question but both agreed that the question was asked.
Whilst this was happening, outside, Ched’s brother and his friend had gone to the window of Room 14. They were fooling around, giggling and laughing (caught on the soundtrack) and attempting to film on a mobile phone what was happening in Room 14. They made two short clips but did not obtain any discernible footage.
According to the testimony of Ched, he watched his friend having sex for a minute or two and then, after Clayton had moved away from the bed, he engaged in sexual activity himself with the complainant on the basis that she had agreed to his participation by replying “yeah” to the request of whether or not he could join in.
Ched stated that the complainant asked him to perform oral sex upon her by telling him to “lick me out”. He did so and then followed this act by having intercourse with her. This was all corroborated by Clayton. Both men stated in evidence that the complainant was verbally encouraging Ched to have more vigorous sex with her by calling out to him on numerous occasions to “F**k me harder”. Both men also said that she was in control of the situation and activity as she was changing the sexual positions herself. (It is worth noting that the complainant stated in her police interviews that “licking out” is the phrase she understands to mean male on female oral sex).
Clayton decided to leave the room. He went and sat in the reception area. He spoke to the night porter and requested that he ‘keep an eye out’ for the girl in Room 14. Unbeknownst to Clayton, the night porter had only minutes earlier been listening at the door of Room 14 because he was concerned that the occupancy of Room 14 was more than the hotel rules allowed. The night porter stated in Court that he had heard the sounds of people having sex – when pushed on this he said that he had heard both female and male voices “squealing, panting and groaning”. He also said that he heard a male voice ask for oral sex in a “playful” manner.
In his evidence, Ched stated that when his friend had left the room he had suddenly become nervous that his girlfriend may ring him. He spoke to Clayton on the phone who was by now outside of the hotel. He said he stopped having sex with the complainant and decided to join his friend outside. He left the complainant on the bed who he said huffed in disgust that he was leaving her and pulled the covers over as if to go to sleep. Ched left the room and then left the building by the fire exit.
Ched gave two reasons for leaving by the fire exit. Firstly, it was the nearest exit and secondly, he was embarrassed to pass by the night porter again not long after having gained access to the room.
The two friends then walked back to the family home of Ched and went to sleep there.
According to her evidence, the complainant awoke on Monday **th ***** 201* in the Premier Inn totally unaware as to how she had got there. Having searched for her bag and mobile phone she then proceeded to Reception. Her mother picked her up and took her to her friend’s house. Later that day she returned to work. At the end of her shift at 11pm she went to the reception of the Premier Inn and requested to see CCTV footage to see, she claimed, if she could find out how she got there earlier that morning. She did not get to see the CCTV footage but was told by the receptionist that the room had been booked and was occupied by footballers.
Later that evening the complainant contacted North Wales Police claiming her drink had been spiked and that she had lost her bag and mobile phone. The police launched their investigation.
Through CCTV and the booking references for Room 14 the police easily established that the complainant had arrived with Clayton and that Ched had paid for the room. They arrested both of them.
When questioned in the police station it should be noted that neither of the accused had ejaculated during sex as a result of which the police had no forensic evidence to link either man to the sexual act, nor did the police have a complaint of rape. Regardless of this, both men gave a full account of their actions to the police. On 26th July 2011 the police charged both Clayton and Ched with rape.
