Al-Kazzaz v Director of Public Prosecutions

A criminal appeal may proceed despite the absence of a witness whom the defendant wished to cross-examine where sufficient evidence remains and the court has properly considered adjournment. The missing witness’s absence may be raised as a weakness in the prosecution case; it does not automatically make a fair trial impossible. Lack of consent in an assault case may be proved by the circumstances and nature of the assault. It is unnecessary to obtain express evidence from the alleged victim that consent was absent. A trial court may draw reasonable conclusions from the overall impression made by a defendant’s evidence, including where a peripheral point was not put to him in questioning.

The appellant appealed by way of case stated against the dismissal by Harrow Crown Court of his appeal from conviction at Hendon Magistrates’ Court for assaulting his wife.

The Crown Court proceeded when the complainant failed to attend, despite a witness summons and earlier adjournments. It heard evidence from her sister, who had witnessed the incident, and rejected the appellant’s account.

The appeal concerned whether proceeding without the complainant amounted to an abuse of process, whether the prosecution had failed to establish absence of consent, and whether there was evidence supporting the Crown Court’s reasoning about the appellant’s requests for CCTV footage.

1. Abuse of process. The Crown Court was entitled to refuse a further adjournment. The case had already been adjourned three times, the events were nearly a year old, and the complainant had previously failed to attend. There was evidence available from the complainant’s sister. The absence of the complainant was a matter which the defence could deploy as a weakness in the prosecution case. The approach described in R (on the application of Ebrahim) v Feltham Magistrates’ Court [2001] EWHC (Admin) 130 was applicable.
2. The fact that the prosecution had not sought an arrest warrant, or tendered the complainant’s statement as hearsay, did not make a fair trial impossible. A warrant would probably have required another adjournment, and the defence had not sought to adduce the statement itself.
3. No case to answer. Absence of consent may ordinarily be proved by the circumstances and nature of the assault. The sister’s evidence, if accepted, clearly demonstrated an assault inconsistent with consent. The prosecution did not need evidence from the complainant expressly stating that she had not consented. The submission therefore properly failed under the Galbraith test.
4. CCTV evidence. The Crown Court’s conclusion that the appellant’s repeated requests for CCTV reflected his view that the incident was minor or justified was supported by the impression formed from his evidence. The point was peripheral, since the Crown Court’s principal reasoning was that it rejected his account and accepted the sister’s evidence.
5. The answers to all three questions posed in the case stated were negative, negative and affirmative respectively. The appeal was dismissed.

• High Court (Administrative Court): appeal by way of case stated dismissed; the answers to the three questions were no, no and yes.
• Harrow Crown Court: on 30 May 2014, dismissed the appellant’s appeal from conviction.
• Hendon Magistrates’ Court: convicted the appellant in October 2013 of assaulting his wife.