Sultan v R

Under section 23 of the Criminal Appeal Act 1968, fresh expert evidence may be received where it is capable of belief, admissible, supported by a reasonable explanation for its earlier absence, and may afford a ground for allowing the appeal. A conviction is unsafe where such evidence could have enabled a previously unavailable defence on mens rea and materially altered the jury’s assessment of the defendant’s asserted belief. That may be so even if the complainant’s evidence remains credible.

Sultan v R concerned convictions at the Crown Court at Blackfriars for rape and indecent assault arising from sexual conduct between the appellant and his estranged wife. The appellant was sentenced to four years’ imprisonment.

On appeal, he relied on fresh psychiatric evidence diagnosing Asperger’s Syndrome. The evidence suggested that the disorder might have affected his ability to understand another person’s intentions and thus his asserted belief in consent. The court had to decide whether to admit the evidence and whether, in its light, the convictions were safe.

1. Appeal allowed. The court admitted the fresh psychiatric evidence, quashed both convictions, and ordered a retrial.
2. Applying section 23 of the Criminal Appeal Act 1968, the court held that the evidence was capable of belief, would have been admissible at trial, and had not been adduced earlier for a reasonable reason. The diagnosis had not been available to the defence. This was not an attempt to advance, after conviction, an expert case which could and should have been presented to the jury.
3. The court could not finally affirm that Asperger’s Syndrome was established. Nevertheless, the diagnosis was cogent and the appellant’s mental condition gave grave concern. The Crown accepted that, if the diagnosis were correct, it would have existed at the time of the alleged offences and could have had the effects described.
4. The new evidence might have affected the trial in three material respects. It could have supported a defence concerning mens rea. It could have led the jury to assess whether the appellant honestly believed that his wife consented, rather than treating the credibility of his account as the sole issue. It could also have explained his unusual behaviour during the trial.
5. The court assumed that the complainant’s evidence was credible and true in its essential details. That did not resolve whether the appellant’s mental condition might have caused him honestly to misunderstand her intentions. The evidence could therefore afford a ground for allowing the appeal, and the convictions were unsafe.

• Court of Appeal (Criminal Division): In [2008] EWCA Crim 6, the court admitted fresh psychiatric evidence, allowed the appeal, quashed the convictions, and ordered a retrial.
• Crown Court at Blackfriars: The appellant was convicted on 12 August 2005 of rape and indecent assault and was sentenced to four years’ imprisonment.