Khan, R. v [2009] EWCA Crim 86

Case No 200706336/D3-200802252/D3[2009] EWCA Crim 86
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 28th January 2009
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE TOULSON
MR JUSTICE BEAN
HIS HONOUR JUDGE PAGET QC
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
MOHAMMED KHAN
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr T Cray appeared for AppellantMiss C Knight appeared for Crown
J U D G M E N T
[1]MR JUSTICE BEAN: On 16th November 2007 in the Crown Court at Maidstone, following a trial before His Honour Judge Michael Lawson QC and a jury, the appellant was convicted of three counts of rape. He appeals against those convictions by leave of the single judge.[2]Mr Cray, in his concise and forceful submissions on the appellant's behalf, challenges two rulings of the learned judge in relation to the admissibility of evidence which he says either separately or in combination render the convictions unsafe.[3]The complainant was a prostitute. She gave evidence that on the evening of 1st April 2007 she had been pursing her profession on the streets of Chatham in the area of New Road and City Way. She was given a lift there by her cousin's boyfriend who dropped her off at about 10.45 pm. A potential customer pulled into City Way and she started to walk across the park, Jackson's Field. She saw a man approaching from the tennis courts. At the junction of the pathways he grabbed her and began dragging her. She struggled but could not grab onto anything. He said he did not want to hurt her and told her to stop struggling. At the tennis courts she managed to hook her arm over the frame of the court netting. He held her, one arm around her front and the other holding her left arm. Her face and body were pushed against the netting. She heard people walking and she shouted "get him off" but no one came to help. He turned her round and put his hand up her skirt. He fiddled with her, as she put it, but did not touch her under her clothing.[4]She then recognised him, she said, as a man who had paid her £40 for straightforward sexual intercourse about a month previously. She later discovered the £40 was in counterfeit bank notes. He had asked for vaginal and oral sex but she told him that would be £60. She got into his car. He gave her two £20 notes which looked like they had been photocopied. He did not have an accent. It was only after she got home that she had a proper look at the bank notes. In cross-examination she conceded that she could not say whether on the previous occasion when she had been paid with forged notes she and the man concerned had had full vaginal sexual intercourse or whether she only performed oral sex on him.[5]Reverting to the events of 1st April, she gave evidence. It is not necessary to go into it in detail on this appeal because it does not affect the two points which Mr Cray raises: it is enough to say that she gave evidence of her being penetrated in a number of ways and with very serious violence. The applicant told her that he had a knife. He said he had murdered other people and did not want to add her to the list.[6]One witness for the prosecution whose evidence was adduced despite submissions to the contrary from the defence, was another prostitute, AW. She gave evidence that on two occasions prior to 1st April 2007 a man paid her for her services as a prostitute with counterfeit notes. The man was Asian (as is the appellant) and had short dark hair and was about 5 feet 5 or 5 feet 6 in height with a Manchester accent. She recognised his accent as Mancunian because she was from Lancashire. The first occasion was around the end of 2006. She had performed oral sex on the man and had vaginal sexual intercourse with him. She could not attend an identification procedure for reasons of health.[7]The appellant gave evidence in his own defence. It is not necessary to outline all of it. As to forged bank notes, he said that in mid-March 2007 he and a friend had been, as he put it, messing about, scanning some bank notes on a computer and trying to print them off on a printer. He produced 20 to 30 of them. It was more or less his idea. They decided it would be funny to buy drugs for the appellant's friend, who was a drug user, with the counterfeit money. They spoke to three women who frequented the alleyway beside the house. The appellant thought it was possible they were prostitutes based on their dress. He had seen prostitutes in the area but did not know where they worked. He gave one of the women two counterfeit £20 notes for a quarter of an ounce of cannabis. Several days later the women came to his door. They were dissatisfied and he had to give them more counterfeit notes and also £70 in genuine money.[8]As for the evening of 1st April 2007, he did not dispute that he had had sexual intercourse with the complainant in the park. He said that that intercourse was consensual and also that he had never had sexual intercourse with her before. He had been revising work as a student earlier in the evening and about 10.45 was walking along New Road when he came across the complainant, whom he had never met before, and she asked for a light. They struck up a conversation. He asked her whether she would like a drink to which she said "when and where", to which he replied "why not now". He had vodka in his pocket. They sat on the grass in the park. She told him she was breaking up with her boyfriend. He offered her some vodka. He did not see whether she drank it. She said she was a business woman but was not getting many customers. He did not really believe she was a prostitute. She asked how much money he had. He asked her why and she replied: "Just asking." He thought she wanted to go for a drink and have a good time. He told her he had £40. She asked where he lived and whether he had alcohol there. She mentioned a party. She was emotional about breaking up with her boyfriend. She kissed him and touched him on the groin. She said: "Do you want to go somewhere more private for a quick one?" He agreed. They went to the tennis courts. She performed oral sex on him without a condom. After approximately two minutes he said: "Are you going to bend over?" She replied: "Okay." He put on a condom. Matters proceeded from there, he said, in an entirely consensual way. After the intercourse and oral sex they got dressed. He said he was tired and was going home. She asked about money. He gave her £20 for a taxi or something, not realising it was a counterfeit note. He had forgotten the counterfeit notes were in his pocket. She said: "Are you taking the piss, this is a fake". After an exchange of insults they parted.[9]The defence sought to adduce a witness statement by CS, another prostitute, in evidence under section 114(1)(d) of the Criminal Justice Act 2003. The statement was taken only two days after 1st April 2007. It indicated that at approximately 11.30 pm Ms CS was working in the same area as the complainant and saw her in the vicinity of City Way and New Road. It had been raining or was just about to rain and the complainant had an umbrella. They stood together and spoke for approximately 45 minutes. When Ms CS left at 12.15 the complainant seemed quite happy. Ms CS went home for a short time and then returned in a car at about 1.00 am and saw the complainant speaking to a man. The complainant did not appear to be distressed.[10]This evidence was potentially of considerable value to the defence but it was clear, indeed, perhaps almost common ground, that some aspects of it must have been inaccurate, for whatever reason.[11]As to timing, there was ample and undisputed evidence that at approximately 11.40 pm the complainant was with police officers in a police car, making her complaint. There was also, we understand, no support from any other witness for the proposition that it was raining at or just before the material time.[12]The appeal is brought on two grounds. Firstly, that the learned judge ought to have allowed the evidence of CS contained in the statement to the police to be admitted in its hearsay form without the witness being called. Secondly, that the judge erred in allowing the application by the Crown to adduce the evidence of AW.[13]CS was available to give evidence. The Crown had offered, in the usual way, to use the services of the local police to bring her to court and there was no suggestion that she had disappeared. The learned judge, having refused the application to admit the statement as hearsay, noted that he was leaving it to the defence to assess whether they wished to make use of the Crown's offer and apply for an adjournment until that afternoon or the following day for the purpose. They did not. But the defence were reluctant to call her, firstly because she was a friend of the complainant as well as being a fellow member of her profession, and secondly, because the complainant had indicated in cross-examination that Ms CS, as she put it, did not want anything to do with the defence.[14]Because the witness was available it was accepted before the judge and it is accepted before us that section 116 of the 2003 Act was inapplicable. The hearsay evidence could not be admitted as of right. It therefore fell to the learned judge to assess, under section 114(1)(d), whether it was in the interests of justice for the written statement to be admitted. In doing so the judge was bound to have regard to the factors enumerated under section 114(2) and, as the preamble to that subsection makes clear, to any others considered relevant.

(a) :

"how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings or how valuable it is for the understanding of other evidence in the case" and to subsection (g) "whether oral evidence of the matter stated can be given and if not why it cannot"
. He also noted that the defence case was not that the statement was true and accurate in every particular, and that it was accepted that Ms CS must have got the time wrong, must have got the place wrong and may well have made an error about the weather. The learned judge considered that the evidence was of no value because of the manifest inaccuracy to do with the timing.[15]We consider that a very important factor in assessing whether it was in the interests of justice to admit the statement as hearsay was the fact that Ms CS was available to be called. That, coupled with the manifest inaccuracies in the statement, pointed clearly, in our judgment, to it being desirable in the interests of justice that the witness should be called. Mr Cray says that it is not right that the defence should be required to call a witness who might well prove hostile when there was a written statement made to the police within two days of the events in question. But it seems to us that had Ms CS been brought to court and had she given oral evidence, one way or another the defence would have been able to get the contents of the statement before the jury. If she had given evidence broadly consistent with the statement but perhaps with some failure of recollection of detail, the statement would have been admissible under section 120 of the 2003 Act as a previous consistent statement. If she had turned hostile and the judge had granted an application under the Criminal Evidence Act 1865, section 3, for her to be treated as hostile, the statement could have been put to her in cross-examination by the defence. If, however, she had simply given coherent evidence in chief for the defence and then to a greater or lesser extent contradicted that and the contents of the statement in cross-examination, then the statement could perfectly properly have been put to her in re-examination if not earlier. Given that there were some inaccuracies in the statement, it was much more desirable that they should be explored in front of the jury, so that the jury could make their own assessment about the value of the statement, rather than that the jury should have been left in the unsatisfactory position of having a written statement, some of which was clearly inaccurate, and having to work out what to make of it. The judge was right to reject the application.[16]We turn to the issue concerning the evidence of AW. It was part of the defendant's case that he had never used the services of prostitutes, had never previously met the complainant, still less had sex with her and that he believed that the complainant was an ordinary business woman who consented to have sex with him.[17]We see no reason why, in those circumstances, the Crown should be prevented from calling Miss AW, another prostitute, to say that she had had him as a client twice, and that on at least one of those occasions he had paid her with counterfeit notes. We accept that her evidence of visual identification was in some ways unsatisfactory, but more telling was her evidence that she had been paid on those previous occasions by a young Asian man who used counterfeit notes. Her evidence was thus capable of supporting the prosecution case that he was someone who used the services of prostitutes and sometimes paid them with forged notes; that he had done that on a previous occasion with the complainant that therefore his story that on 1st April 2007 he believed that the person he encountered in the park was an ordinary business woman was untrue; and that the complainant so far from consenting to sexual intercourse with the defendant, would not have gone anywhere near him if she had realised that he was the man who had defrauded her as a customer on a previous occasion.[18]For those reasons, we think that the learned judge was plainly entitled to exercise his discretion as he did in allowing the prosecution's application to call AW. It follows that both the grounds of challenge to the conviction fail and the appeal against conviction must be dismissed. (Submissions re: sentence)

MR JUSTICE BEAN: We have just dismissed Mr Khan's appeals against conviction on the charges of rape.

[20]We turn now to his renewed application for permission to appeal against sentence in respect of the rapes and also of an earlier unconnected incident in Manchester, which led to his being charged with and pleading guilty to two counts of witness intimidation.[21]Dealing with that incident first: the applicant was involved in a traffic accident with a cyclist. He became aggressive towards the cyclist and also towards a member of the public, a Mr F, who attempted to give the cyclist assistance. To the independent witness he said:
"I've seen you around before. You've fucked with the wrong guy. You're going the get done for this you know."
To the cyclist he said: "I'm going to see you again. I'm going to fuck you up".[22]We have already set out some of the facts of the rapes and it is now necessary to set out some more in the words of the learned sentencing judge. He said:
"Miss [S]... was crossing the park to meet a customer when she was grabbed by you and held against the tennis court netting. You demanded her co-operation and while you held her against that netting, you touched her under her skirt and that general area. You then dragged her to a low wall and bent her over, face down on it. You penetrated her backside with your fingers of one hand and covered her mouth with your other hand to prevent her shouting out to people in the area. To protect you, you took her further into the darkness and put her on her back on the ground and tried to force her legs apart. You told her that you had a knife, that you had murdered 20 people and you did not want her to be the 21st. Eventually you forced her legs apart and started to undo your zip and your belt. You had, at that stage, inserted your fingers into her vagina and tried but failed to have vaginal sex when you were forced to move by the sound of people nearby. You took her to a further area deeper into the park near the bowling green. You had with her then vaginal sex and then you turned her over and had anal sex. That was not a service that she offered to customers and when she cried out in pain, you grabbed her by the throat and threatened her again. Finally, you forced her to give you oral sex. You ejaculated in her mouth and you held her chin and mouth together so that she was forced to swallow your semen. No doubt that was to prevent detection. You made her show you that she had. You warned her again not to report the matter or you would find her... 'in two seconds flat' and that you knew where she lived. Throughout this period, you had not worn or sought to wear any form of protection."
[23]The learned judge had before him a psychiatrist report, a probation report and references. The reports indicated, not unsurprisingly in the light of what it has been said about the facts, that the applicant's attitude towards women was far from satisfactory.[24]The application for leave to appeal is brought on two bases: firstly, that the sentence of imprisonment for public protection which the judge imposed was wrong in principle and that a determinate sentence would have been sufficient; secondly, that the minimum term was too long.[25]The judge considered that the appropriate notional determinate sentences were 18 months' imprisonment for the witness intimidation and 12 years for the offences of rape, making a total of thirteen-and-a-half years and thus resulting in a minimum term to be served of 6 years and 9 months, less 316 days served on remand in custody before the applicant could be considered for parole. Mr Cray, rightly, does not criticise the structure of the sentencing. He concedes that the intimidation episode was bound to add to the sentence; there was nothing wrong with making it consecutive; and nothing wrong, either, with that sentence of 18 months.[26]So the question is, firstly, was IPP justified, and secondly, was a 12 year notional determinate sentence for the rapes excessive? As to the IPP sentence, the learned

judge said:

"I have to consider whether you present a significant risk of causing serious harm to others on future occasions. I am satisfied that at this time, given the attitudes disclosed in the reports and your actions on that night, that you do."
We agree. The very serious facts of these offences were perhaps enough in themselves and although the applicant's record prior to the commission of these offences was of very little significance, the intimidation episode indicates an ugly side to the applicant, even before one gets to the rapes. We conclude that the learned judge was fully entitled to find that the test of a significant risk of causing serious harm to others from violent or sexual offences on future occasions was met. Therefore, the sentence of imprisonment for public protection was correct in principle.[27]As to the notional determinate term of 12 years for the rapes: these were very serious offences, a series of offences which involved considerable violence as well as threats against the victim. The notional term is just above the usual Sentencing Guidelines Council bracket for this type of offence of 7 to 11 years. We are not persuaded that it was manifestly excessive or wrong in principle. Accordingly the renewed application for leave to appeal against sentence must be dismissed.