Majid Ait B v The Queen
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hughes |
| Judgment Date | 31 January 2013 |
| Neutral Citation | [2013] EWCA Crim 3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 31 January 2013 |
| Docket Number | 201200269 D3,Case No: 201200269 D3 |
[2013] EWCA Crim 3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT CHELMSFORD
HIS HONOUR JUDGE BALL Q.C
T20107225
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hughes
Mrs Justice Macur Dbe
and
Mr Justice Maddison
Case No: 201200269 D3
Simon Spence QC (instructed by the Registrar of Criminal Appeals) for the Appellant
Timothy Cray (instructed by CPS) for the Respondent
Approved Judgment
This appellant was convicted of counts of rape and common assault upon his partner and of a minor offence of criminal damage to her house. There was clear evidence that at the time of the offences he had been mentally ill, affected by paranoid schizophrenia and harbouring a number of delusional beliefs. His appeal certainly raises the question what if any impact his mental illness had on the issues before the jury. It is said more generally to raise the question whether, when considering the issue of a defendant's reasonable belief in the complainant's consent to sexual intercourse, account can or cannot be taken of the mental condition of the defendant.
The defendant and his partner had been in a relationship since about 2004. He is Algerian and she is British. They have a daughter, aged about two at the time of the events which led to the trial. This daughter had been born in, and remained in, Algeria, apparently having no passport. The couple was living in his partner's house in Chelmsford.
In 2009 the defendant's behaviour deteriorated. He became argumentative and aggressive towards his partner, of whom he was possessive and jealous, accusing her of paying attention to other men. In November 2009, on three occasions he assaulted her. It appears that on one occasion he became aggressive, thinking that there was something in the iron which was making him ill. He spat in her face, slapped her and pulled her hair. The available psychiatric evidence at that time was that he was not suffering from any mental illness, although he showed some signs of inappropriate behaviour in interview. Nor were the assaults thought to be the result of any mental illness. In due course in March 2010 he pleaded guilty to assaults and was made the subject of a suspended sentence, with a requirement that he live apart from the complainant. The trial with which we are now concerned was the result of a second prosecution a few months later. With hindsight, his illness was clearly developing.
The couple evidently remained on terms of some affection, as may often happen, not least when they have a child together. As well as remaining fond of him, his partner wanted his help in enabling her daughter to leave Algeria. On 19 July 2010 she supported his application to the court to lift the requirement that he live apart from her, and that condition was removed.
Most of the events which led to the second prosecution of him occurred within about a fortnight of that lifting of the condition, although it later turned out that one had occurred just a few days before the application to the court had been made. After a number of incidents, the complainant went to the police station to complain on Wednesday 5 August 2010. The result was his prosecution for counts of rape, common assault and a single count of criminal damage. We should record that he was acquitted of two counts of rape and one of common assault.
The defendant did not give evidence at his trial, although he was fit to do so. He had been interviewed by the police and the complaints put to him, some rather generally and some with particularity. He had provided some answers. Those, in effect, constituted the basis of his case at trial, together with some suggestions put to the complainant in cross examination.
The allegations in the counts of which he was convicted were, taking them in chronological rather than indictment order, the following.
Count 5 (common assault)
On Friday 16 July 2010 (which was the Friday before the Monday of the application in court to remove the non-residence condition) the couple had been going out for a meal on the occasion of the complainant's birthday. The defendant objected, for no rational reason, to the complainant having passed the time of day with their (male) next door neighbour, who had been by his bins as they left the house. The defendant remonstrated with her in the car, and when it stopped at some traffic lights he turned towards her and spat in her face.
As to this allegation, D told the police that no such incident had ever occurred and that he had no problem with his partner speaking to the neighbour.
Count 7 (common assault):
On Wednesday 4 August 2010 the defendant made the complainant eat a bowlful of cold tinned peas in their canning fluid, mixed with crumbled dried leaf from the apple tree in the garden. She did not want to eat it. He was agitated and insisted. She complied but tried to pick out the leaf pieces. He came across the room, seized her finger, and made her put the piece of leaf back and eat the mixture. He made sure that she swallowed it.
In interview the defendant accepted that he had given the complainant this mixture. He agreed that she did not want it. He said that he had said to her "Have it". He said that he had stood there, and told her that the leaf was oregano and that the mixture would make her feel well. He denied, however, that he forced her to eat it.
Count 3 (rape):
Very soon afterwards that same evening he told her that he wanted sex. Her evidence was that she did not want to do it and did not want to go to the bedroom. He insisted. In the bedroom he sprayed her private parts with a mixture which he had in a spray bottle, which smelled of bleach and caused a burning sensation, and then had intercourse with her in a rough manner. She agreed that she had undressed herself before the act of intercourse. In effect her evidence was that she objected but submitted in the face of his insistence.
In interview the defendant was asked generally about spraying the complainant. He was alleged to have done it also on another occasion when it fell on her nightdress. He said that he had a spray which he used regularly to scent the bed but said that it did not contain bleach. He said generally that he had never had intercourse with her unless she consented.
At the trial the case put to the complainant was that there had indeed been this act of intercourse but she had consented. The case put as to the spray was that the defendant had told her that the spray would make her (not, it seems, the sheets) clean.
Count 4 (rape):
Sometime during the same night, or perhaps next morning, when he woke up, the defendant had wanted sexual intercourse again. The complainant's evidence was that she said no but he insisted. He was, she said, far stronger than she. Generally, she said that he would not take no for an answer. She agreed that, as on the previous evening, she had removed her nightdress herself before submitting to sex.
The case put for the defendant as to this was the same as for count 3. It was accepted that intercourse had taken place but it was contended that she had consented.
Count 8 (Criminal Damage):
The complainant said that she had once come home from work to find that the defendant had dismantled the front doorstep. That, she said, was all of a piece with other occasions on which he had insisted on cutting down trees in the garden. She said that she had not agreed to this being done.
When interviewed the defendant said that he had spoken to her in advance about the doorstep and she had consented to what he had done. He said that he had said that it would be good if the step were lowered. That was the case pursued at trial.
Evidence at the trial
The trial took place in November 2011, a little over sixteen months after these events. The complainant's evidence as to the counts of which the defendant was convicted was as summarised above. Although the defendant did not himself give evidence, one of the several consultant psychiatrists who had assessed him was called, Dr Volkanskaia. She had not treated him but had seen him on two occasions, on 25 July 2011 and again on 15 November 2011, just a few days before the trial. She also had access to the records of his assessments in 2009 and of his treatment in the period since his arrest in August 2010 in connection with these events.
Dr Volkanskaia's evidence amounted to this:
i) The defendant had clearly suffered from a mental illness which was best diagnosed as paranoid schizophrenia, or possibly schizo-affective disorder. He was probably suffering from this condition at the time of the events which were before the jury, and at one stage at the end of September 2010, about six weeks after his arrest in August, a different psychiatrist had thought him then sufficiently ill to be unfit to plead. He was however very much better by the time of the trial as a result of medication.
ii) The mental illness had meant that he believed that he had healing powers. He could cure cancer and epidemics. He had sexual healing powers. He also had a solution to the banking crisis and to climate change. He had a special connection to God. In prison he had made a special toothpaste for other prisoners in the belief that it would make them better.
iii) When ill he had a lack of insight into his condition. Now that he was much better his insight was improved. He did not now think he had healing powers. However, his insight into the illness that he had had was still impaired, and he...
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