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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Abdelrahman, R. v [2005] EWCA Crim 1367 (12 May 2005) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2005/1367.html Cite as: [2005] EWCA Crim 1367 |
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CRIMINAL DIVISION
Strand London, WC2 |
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B e f o r e :
MR JUSTICE SILBER
RECORDER OF BIRMINGHAM
HIS HONOUR JUDGE SAUNDERS QC
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R E G I N A | ||
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SAMIR ABDELRAHMAN |
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Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
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(Official Shorthand Writers to the Court)
MR FIONA HORLICK appeared on behalf of the CROWN
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Crown Copyright ©
"I am satisfied that this evidence is relevant and admissible for the two reasons which were advanced to me by the Crown."
Mr Haynes sought clarification as to whether the judge was ruling that the evidence was not hearsay, and the judge indeed confirmed that.
"(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 ...
(4) For the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness."
"However, it is open to a judge to guard against abuse of the system. The defence, wishing to put questions about alleged previous false complaints, will need to seek a ruling from the judge that section 41 does not exclude them. It would be professionally improper for those representing the defendant to put such questions in order to elicit evidence about the complainant's past sexual behaviour as such under the guise of previous false complaints. But in any case the defence must have a proper evidential basis for asserting that any such previous statement was (a) made and (b) untrue. If those requirements were not met, then the questions would not be about lies but would be 'about the sexual behaviour of the complainant' within the meaning of section 41(1). The judge is entitled to seek assurances from the defence that it has a proper basis for asserting that the statement was made and was untrue. That may not provide a watertight guarantee that in every single case evidence about the complainant's past sexual behaviour will be excluded, but it would normally prevent the sort of danger to which we have referred. We understand that in the present cases there is a proper evidential basis for the questions which the defence seeks to put."
"Mr Haynes conceded that while there was an evidential basis for asserting that the allegations contained in the fourth, fifth and sixth of his proposed questions had been made there was no evidential basis for asserting that those allegations were untrue. Nevertheless, he wished to ask the questions and if the complainant said that the allegations were true to underline the fact that none of the allegations was taken ultimately to court, his ultimate purpose being to suggest to the jury that the complainant had been lying when making those earlier allegations and was lying about the present allegation which the jury are trying."
"... where the disputed issue is a sexual one between two persons in private the difference between questions going to credit and questions going to the issue is reduced to vanishing point."
"During his summing-up, the learned judge wrongly invited the jury to speculate as to whether the explanation for incorrect details of the applicant's flat supplied by the complainant was that she may have become confused due to the large number of addresses she may have visited as a prostitute. Although the learned judge agreed to instruct the jury to disregard his comment, there is a danger that the jury may have wrongly adopted the suggestion."
"... before the short adjournment I commented upon the possibility that [the complainant] might have been with her other clients to other flats or houses and seen other furniture or furnishings. I have reflected upon that comment and I direct you to ignore it and not to consider that possibility because you would be speculating and guessing, which the jury must not do. You decide the case on the evidence which you have heard."
"The question should not have been asked in that way, because put in that way it carries the implication that the person she met for the first time had consensual sexual intercourse with and subsequently met again, only to be raped at gunpoint, was indeed the defendant. In other words, this question preempts the very issue which you are here sworn to try."
The judge gave a further explanation as to all that, and, as with the previous ground of appeal, in our judgment what he said was sufficient to remedy the difficulty.