R v Abdul Tahed
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WALLER |
| Judgment Date | 20 February 2004 |
| Neutral Citation | [2004] EWCA Crim 1220 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 200300269/B2 |
| Date | 20 February 2004 |
[2004] EWCA Crim 1220
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Lord Justice Waller
Mr Justice Hedley
His Honour Judge Stephens Qc
No: 200300269/B2
MR A KAYNE appeared on behalf of the APPELLANT
MISS I DELAMERE appeared on behalf of the CROWN
On 9th December 2002 in the Crown Court at St Albans before His Honour Judge Colston QC, the appellant was convicted on four counts, one of rape, count 2 and 3 of indecent assault and count 4, false imprisonment. He received a total sentence of 6 years' detention. He appeals against conviction by leave of the Single Judge and he has been represented here today by Mr Kayne.
The alleged offences were committed on 18th July 2002. The appellant and the complainant, Miss J, had previously had a sexual relationship for about two-and-a-half years. Their relationship was characterised by abusive arguments and some occasional violence. They had split up several times, notably between February and May 2002 and then had resumed a relationship. On 13th July the appellant had accused Miss J of sleeping with another man, he, so the Crown said, knowing that was false.
The appellant and Miss J had had sexual intercourse some three days before the events with which the counts were concerned, in the open air by some lakes. That was on 15th July. That was an incident which the judge had ruled could be put to Miss J in cross-examination and of which the appellant was entitled to give evidence.
The incident on 18th July arose, according to Miss J, out of her being telephoned by the appellant. The appellant then came into her home at about noon and then requested her to go to the park nearby. In that park there was a bench and a triangular climbing frame in a children's play area. The appellant and Miss J went inside the claiming frame and there was no dispute that acts of sexual intercourse, oral sex and digital penetration took place within that climbing frame. The incident was witnessed by two witnesses and they supported the victim's assertion that all the sexual activity was taking place without her consent. It was the question of consent which had to go before the jury.
Having regard to the point that arises on the appeal, there is no need to summarise matters further. The appeal relates to the ruling by the judge in relation to both the evidence that the appellant would be entitled to adduce at trial and the matters which could be put to the complainant in cross-examination. The application, which was put in in writing, was dated 30th November 2002. Paragraph 3 was in the following terms:
"3. The defendant seeks leave to elicit the following evidence/put the following matters to the complainant in cross-examination in the limited manner set out below:—
(i) She had consenting sexual intercourse with the defendant outside during their relationship, eg in public parks and on one occasion, on a bus ( Johnson p 2; defendant's interview p 54);
(ii) She had consenting sexual intercourse with him within the climbing frame where the alleged rape, indecent assault and false imprisonment is said to have occurred on 18th July approximately 3 to 4 weeks before ( Johnson p 2; defendant's interview p 17);
(iii) She had consenting sexual intercourse with him outside by Verulam Lake on Monday 15th July 2002 (complainant p 2; defendant's interview p 29);
(iv) She had been a consenting party to oral sex during their relationships ( Johnson p 10; defendant's interview pp 30 and 63);
(v) They have had consenting sexual intercourse previously adopting the same respective positions as those used on 18th July 2002 (both standing with complainant facing away from defendant) (defendant's interview p 54);
(vi) (arguably not falling foul of the prohibition) The complainant went out with a boy called Siad for about 1 or 2 weeks in May 2002 at a time when she and the defendant had split up —leave is not sought to ask any questions concerning her sexual behaviour with this boy; if needed, leave is sought merely to establish the fact of her short relationship with him (but see below (vii) and (viii)) ( Johnson p 3);
(vii) The complainant had told the defendant on a number of occasions after resuming their relationship that she had not slept with Siad (defendant's interview pp 38 & 51);
(viii) On 18th July 2002, after they had had consensual sexual intercourse in the climbing frame, the complainant told the defendant that she had in fact slept with Siad (defendant's interview pp 4 and 24);"
The application then continued in these terms:
"4. The court's attention is respectively drawn to the provisions of section 14(2),(3) and (5) of the Youth Justice and Criminal Evidence Act 1999, Archbold paragraph 8 —123M, page 1O93. The defence is one of consent, the defendant submits that the proposed matters to be put set out above fall within the provisions of section 41(3)(b) and/or section 41(3)(c) (ii).
5. Further the defendant believes that the complainant had a motive to make false allegations accordingly he submits that the cross-examination in respect of which leave is sought falls within the provision of section 41(3)(a)) as relevant to the issue of improper motive and malice."
Section 41 of the Act provides as follows:
"(1) If at a trial a person is charged with a sexual offence, then, except with the leave of the court—
(a) no evidence may be adduced, and
(b) no question may be asked in cross-examination,
by or on behalf of any accused at the trial, about any sexual behaviour of the complainant.
(2) The court may give leave in relation to any evidence or question only on an application made by or on behalf of an accused, and may not give such leave unless it is satisfied—
(a) that subsection ( 3) or (5) applies, and
(b) that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case.
(3) This subsection applies if the evidence or question relates to a relevant issue in the case and either—
(a) that issue is not an issue of consent; or
(b) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have taken place at or about the same time...
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