A professional cricketer who was arrested for raping a sleeping woman had his conviction confirmed.
Alex Hepburn, 24, was found guilty in a 2019 retrial on charges related to an attack on a Worcester apartment in 2017 and jailed for five years.
His lawyer contested the conviction, arguing that texts detailing a “game” of sexual conquest should not have been used as evidence in his trial.
On Tuesday, the Court of Appeal denied the attempt to overturn the conviction.
The former Australian from Worcestershire, born in Australia, was found guilty of oral rape, but released from a new count of rapes related to the same victim.
Speaking to the BBC’s Victoria Derbyshire after Hepburn’s conviction, the woman said she had facial paralysis and post-traumatic stress disorder.
At the trial, three senior judges, including Lord Chief Justice Lord Burnett, dismissed Hepburn’s appeal, saying: “The conviction is not unsafe.”
The attack on April 1, 2017 took place on the first night of a sexual conquest competition with his teammates, which he helped set up in a WhatsApp group.
Hepburn’s trial found that he was “excited” about the idea of sleeping with most women, before carrying out the rape in his Portland Street, Worcester apartment.
During the appeal hearing, his lawyers argued that the messages presented to the jury did not show that he was willing to have sex without consent.
Many of the messages related to a competition between Hepburn and his former teammates for sexual encounters, the court said.
Hepburn’s lawyer, David Emanuel QC, said the content of the messages was “too far away to be linked to the facts of the alleged offense”.
Prosecutor Miranda Moore, QC, argued that she was certain that the messages were heard at the trial.
She told the court that “this was not a boy’s game”, but “a deep and lasting game among several professional athletes”.
Arresting Hepburn on April 30 last year, Judge Jim Tindal told the cricket player that he and a former teammate, Joe Clarke, had agreed to a “pathetic sexist game to bring together as many sexual encounters as possible” .
In comments on the WhatsApp group, the judge said: “You probably thought it was obscene behavior.
“In fact, it was dirty machismo.”