A cricketer jailed for raping a sleeping woman in his teammate’s bedroom has lost his Court of Appeal bid to have his conviction overturned.
Alex Hepburn, 24, was jailed for five years in April last year for the attack, which took place at a flat in Worcester in 2017 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 retrial that same 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.
The four-day trial heard that the woman wrongly thought she was having sex with Hepburn’s then county teammate Joe Clarke, from Oswestry, after meeting him at a nightclub.
Hepburn challenged his conviction at the Court of Appeal earlier this month.
But, in a judgment handed down on Tuesday, three senior judges, including the Lord Chief Justice Lord Burnett, dismissed his appeal, saying: “The conviction is not unsafe.”
At the Court of Appeal hearing, Hepburn’s lawyers argued that messages presented to the jury did not show that he 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 was told.
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.”
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”.
Jailing Hepburn at Hereford Crown Court on April 30 last year, Judge Jim Tindal told the cricketer he and former teammate Mr 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.”
Mr Clarke, a former England Lions cricketer who went to Llanfyllin School, now plays for Nottinghamshire.