Khan, R. v

Where a witness is available to give oral evidence, a court may properly refuse to admit that witness’s statement as hearsay under section 114(1)(d) of the Criminal Justice Act 2003. The availability of oral evidence, and material inaccuracies in the statement, may make oral examination preferable in the interests of justice.

Evidence of earlier dealings may be admitted where it is capable of rebutting a defendant’s account and supporting a disputed prosecution case. An imprisonment for public protection sentence is justified where the statutory risk test is met. A sentence just above the usual guideline range is not manifestly excessive when the offences involve grave and sustained violence.

The appellant was convicted by a jury at the Crown Court at Maidstone of three counts of rape. He appealed against conviction on two evidential grounds. The defence had sought to adduce, as hearsay under section 114(1)(d) of the Criminal Justice Act 2003, a statement by CS, a prostitute who was available to attend court. The trial judge refused that application. The judge also admitted evidence from AW, another prostitute, concerning earlier encounters with an Asian man who paid with counterfeit notes.

The appellant’s account was that the complainant had consented and that he had not previously met her or used the services of prostitutes. Following conviction, he renewed his application for permission to appeal against an imprisonment for public protection sentence and its minimum term. The issues were whether the evidential rulings rendered the convictions unsafe and whether the sentence was wrong in principle or manifestly excessive.

1. The appeal against conviction was dismissed, and the renewed application for permission to appeal against sentence was dismissed.

2. The trial judge correctly refused to admit CS’s statement as hearsay under section 114(1)(d) of the Criminal Justice Act 2003. CS was available to give oral evidence. That was a very important consideration in the interests-of-justice assessment. Her statement also contained manifest inaccuracies about timing and possibly place and weather.

   Those inaccuracies should have been explored before the jury. If CS had given oral evidence, the defence could in different eventualities have put the contents of her earlier statement before the jury, including through section 120 of the 2003 Act or by treating her as hostile under section 3 of the Criminal Evidence Act 1865. It would have been unsatisfactory for the jury to receive an inaccurate written statement without the opportunity to assess its maker.

3. The judge was entitled to admit AW’s evidence. It was capable of supporting the prosecution case that the appellant had previously used prostitutes and paid with forged notes. It was therefore capable of rebutting his account that he believed the complainant to be an ordinary business woman and that their sexual intercourse was consensual. Any weaknesses in AW’s visual identification did not deprive her evidence of that relevance.

4. The imprisonment for public protection sentence was correct in principle. The seriousness and violence of the rapes, the threats made to the complainant, the appellant’s attitudes disclosed in the reports, and the separate intimidation episode entitled the judge to find a significant risk of serious harm from future violent or sexual offending. The notional 12-year term for the rapes, though just above the usual seven-to-eleven-year guideline bracket, was neither manifestly excessive nor wrong in principle.

• Court of Appeal (Criminal Division) — In [2009] EWCA Crim 86, dismissed the appeal against the rape convictions and dismissed the renewed application for permission to appeal against sentence.
• Crown Court at Maidstone — On 16 November 2007, following a jury trial, convicted the appellant of three counts of rape. The sentencing judge imposed imprisonment for public protection, with a minimum term calculated from notional consecutive determinate terms.