Abdelrahman, R. v

Evidence which is capable of rebutting an accused’s anticipated assertion may be relevant and admissible, and its admission will not be unfair merely because it is damaging to the defence. A proposed cross-examination about alleged earlier false complaints requires a proper evidential basis that each complaint was made and was untrue. Without that foundation, questions about alleged sexual complaints fall within Youth Justice and Criminal Evidence Act 1999 section 41. Where their sole purpose is to impugn the complainant’s credibility, section 41(4) prevents their treatment as questions on a relevant issue. An inappropriate comment or question at trial does not render a conviction unsafe where the judge gives an adequate corrective direction.

The appellant was convicted at Maidstone Crown Court of rape and sentenced to six years’ imprisonment. He was acquitted of a separate count concerning possession of a firearm with intent to cause fear or violence.

He appealed against conviction on four grounds. They concerned evidence that he had been seen speaking to prostitutes, restrictions on cross-examination of the complainant about alleged previous rape allegations, a speculative comment in the summing-up, and prosecuting counsel’s reference to the rapist as the defendant. He also appealed against sentence. The central issues were whether the conviction was unsafe and whether six years’ imprisonment was excessive.

1. The appeal against conviction was dismissed. The evidence that the appellant had been seen in his car speaking to prostitutes was relevant to rebut his asserted lack of interest in prostitutes. It was capable, if accepted, of undermining an anticipated and important part of his defence. The assumed refusal to exclude it under section 78 of the Police and Criminal Evidence Act 1984 was a lawful exercise of discretion because the evidence was probative and its admission was not unfair.

2. The proposed questions about earlier alleged rape complaints were properly refused. Applying RT and MH [2001] EWCA Crim 1877, the defence had no proper evidential basis for asserting that any earlier allegation was untrue. The questions therefore concerned the complainant’s sexual behaviour within section 41 of the Youth Justice and Criminal Evidence Act 1999. Their sole identified purpose was to impeach her credibility, so section 41(4) prevented them from being treated as directed to a relevant substantive issue. The court declined to apply the earlier observation in Funderburk (1990) 90 Cr App R 466, because it pre-dated the statutory scheme.

3. The judge’s speculative comment about why the complainant may have confused addresses was inappropriate. However, his clear direction that the jury must disregard it and decide only on the evidence cured the error. Similarly, the judge’s direction corrected prosecuting counsel’s improper formulation that assumed the defendant was the rapist. Neither matter rendered the conviction unsafe, separately or cumulatively.

4. The appeal against sentence was allowed. Applying the Millberry guidelines, the court held that six years was excessive. Apart from the complainant’s age and vulnerability, there were no aggravating features. The violence did not exceed that necessary to commit the rape, and the appellant had previously agreed sexual intercourse with the complainant. His previous good character also mattered. The six-year sentence was quashed and replaced by five years’ imprisonment.

• Court of Appeal (Criminal Division)—By [2005] EWCA Crim 1367, dismissed the appeal against conviction but allowed the appeal against sentence, substituting five years’ imprisonment.
• Crown Court at Maidstone—On 23 July 2004, convicted the appellant of rape, acquitted him of the firearm count, and imposed six years’ imprisonment.