Oudahar, R. v [2018] EWCA Crim 857

[2018] EWCA Crim 857Case: No: 201701446/B1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 27 February 2018
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE HOLROYDE
MR JUSTICE GREEN
MRS JUSTICE McGOWAN DBE
Between
R E G I N ACrownv
Between
KHALED OUDAHAR
Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)
NON-COUNSEL APPLICATIONJ U D G M E N T (Approved)If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.
[1]MR JUSTICE GREEN: On 3rd March 2017 at the Blackfriars Crown Court the applicant was convicted of rape (counts 1 and 2) and assault occasioning actual bodily harm (counts 3, 4, 5, 7 and 6). On count 2, rape, the applicant was sentenced to 9 years' imprisonment. On count 1, rape, he was sentenced to 7 years' imprisonment concurrent. On counts 3 - 6, assault, he was sentenced on each to 3 years' imprisonment concurrent to count 2.[2]The applicant renews his application for leave to appeal conviction following refusal by the single judge.[3]The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions where a sexual offence has been committed against a person, no matter relating to that person shall, during that person's lifetime, be included in any prohibition if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless and until waived or lifted in accordance with section 3 of the Act.[4]The facts may be summarised as follows. The applicant was born in Algeria in 1978. The complainant was born in Sweden in 1972. They met in London and became a couple in 2012 though they had been friends for some time prior to that. They lived together in a rented bedsit in North London. They shared a bathroom and kitchen with a second bedsit on their floor although in January 2016 there was no one renting the adjacent room. The complainant worked as a retail manager. In January 2016 the applicant had been unemployed for several years and was receiving treatment for anxiety and depression. He was also an alcoholic.[5]The prosecution case at trial was that the relationship between the applicant and the complainant had been deteriorating due to his abusive, violent and erratic conduct towards her. In January 2016 there was a particularly violent episode in which, over the course of three days, the applicant anally raped the complainant and beat her around the head and body. Because of the ferocity of the assault she finally plucked up the courage to do something in order to protect herself.[6]On Saturday 30th January 2016 the complainant contacted the police and informed them that she had been anally raped and physically assaulted. She was interviewed on 31st January and her injuries were photographed.[7]The complainant explained to the police that on the morning of 28th January, on the Thursday, she went to have a shower in order to prepare for work. When she returned the applicant was going through her phone. He noticed a photograph of her with a male work colleague for whom she had knitted a scarf. He became loud and aggressive and he started to assault her. He struck her around the head and arms and he pinched her breast. He insulted her by calling her a "whore". He forced her to kneel down on the floor because he wished to punish her for being a whore. He penetrated her anally. She objected and told him that she did not consent and she was crying but he persisted. He told her to be quiet because someone might hear. At the end he attempted to kiss her, she resisted so he forced her head to the side so he could kiss her face. She fell onto the floor.[8]Subsequently the applicant got up and said he was going to make breakfast. He kept coming back into the bedroom to ask her what she wanted, just as if nothing had happened. The complainant got ready and then she left for work.[9]On Friday 29th January it was the complainant's birthday. She had previously booked the day off work. That day the applicant started arguing about the photograph on her phone again. He continued the assault by punching her in the face, this caused her nose to bleed. She sat over the bin in the kitchen because the blood flow was heavy. The applicant kept saying that there was nothing wrong with her and she was a whore because she had a photograph of a man on her phone.[10]As it happened they booked a table for dinner in the evening. During that dinner the applicant drank a great deal and he purchased a bottle of wine on the way home which he consumed. On their arrival back home he became abusive again. He started to hit her around the head. She had to protect herself by holding a duvet to her head. He kept telling her to be quiet in case anyone else heard them.[11]The following morning, yet again, he continued with the assault by punching her. Once again he abused her. She was very frightened and it was then she decided she simply had to go to the police.[12]She told the police that in addition to the recent incidents of violence, in December 2015 he had assaulted her very badly. He had on that occasion hit her on the head, arm and he had bit her shoulder and kicked her thigh. She went to a general practitioner who noted her injuries. She said that he had anal sex with her against her will on a number of occasions. He only ever wished to engage in anal sex. He did it regardless of her wishes or her consent. She said she wished to leave him and had done so for a long time but she had nowhere to go. She was afraid of what would happen to her if she left him and she had no family in the United Kingdom.[13]The applicant suffers from mental health problems which had recently become worse. He was controlling and obsessively clean. He suffered from panic and anxiety attacks and he drank to excess. He did not take his prescribed medication.[14]The applicant was arrested in the early hours of the morning of 31st January for rape and actual bodily harm. He made no reply. En route to the police station he said:
"There was maybe shouting but no rape. We had sex on that day but it was not rape. We had dinner at Zizzi's the next day and she paid. Would that happen if it was rape?"
[15]In interview he gave an account which foreshadowed his evidence at trial.[16]The defence case at trial was that the applicant and the complainant had been in a relationship for about 7 years. He accepted that he drank a lot but he had been trying to reduce his consumption. He said normally they had anal sex. He did not recall when they had last had vaginal sex. He did recall that she had picture of a man on her phone and he accepted that he did not like that. He did not however remember her telling him that she had knitted the man in the picture a scarf. He never complained about that nor told her off for having a picture of a man on her phone. They did not argue about that, but they had argued about other things. He did not tell her she could not speak to other men. He denied pulling a towel off her neck when she came back from the shower. He did not call her a whore. He denied any form of assault. He denied rape. The only sex that they had was anal sex and this was consensual. They were making love. Everything was consensual. To the extent that the complainant said otherwise she had lied.[17]During the course of his evidence in the trial he indicated his view that the tape of the police interview had been tampered with.[18]We have before us a lengthy series of manuscript submissions prepared by the applicant in person. We have read these carefully. They are repetitive, in that the same point is made on multiple occasions.[19]The essence of the arguments raised concerns the facts as advanced before the jury and as determined and adjudicated upon by the jury. Having read the submissions we would summarise the principal six points as follows. First, the complainant in her evidence in court had lied. All of the sex had been consensual, that this was established by reference to the fact that the complainant had invited the applicant to meet her family in Sweden and he had given her a substantial sum of money. The second, the police officer, had misled him in the course of police interviews. Third, the judge made errors in his summing-up. Fourth, he did not have a fair trial. Fifth, his case at trial was mishandled by his various teams of solicitors leading up to and including at trial. Sixth, his trial legal team failed to spot or bring adequately to the court's attention the fact that the tape recording of the police interview had been tampered with and did not accord with the transcript of the interview. This had never been adequately addressed by the judge or by his own legal team.[20]In view of the criticisms made of trial lawyers the applicant was invited to and did waive privilege. The court has before it the responses from solicitors and counsel. We do not need to rehearse the responses of those lawyers, needless to say they forcibly and in detail reject the criticisms made of them.[21]Detailed grounds of opposition have been tendered by the Crown. We have read these. We can summarise the main points which have been made as follows. As to the complaint that the victim had numerous opportunities to report matters when he was out of the country but she had not done so, the Crown observed that the complainant was cross-examined about this matter. She gave explanations which included that she was fearful of losing her home, that she had insufficient funds to rent another flat because the applicant had taken her money, that she was worn down by years of physical and mental abuse. She had no family in the United Kingdom to turn to for help. But she had told friends and a general practitioner about the physical violence but not given the complete picture. She finally went to the police in January 2016 because she had suffered extreme physical and sexual violence over the course of three consecutive days and was now scared as to what would then happen. The judge dealt with all these matters properly and adequately in summing-up. This was a classic jury question. There are no arguable grounds of appeal arising from this point.[22]The second point raised by the Crown concerns the allegation that the applicant was invited more than once to visit the complainant's family in Sweden, which reinforced his argument that the relationship was consensual. The Crown observed that the complainant accepted in evidence that the applicant had visited her family in Sweden on two occasions. She explained that she would have preferred to visit her family in Sweden alone but that he insisted on accompanying her. She had not told her family of the abuse or violence. The applicant's behaviour improved whilst they were in Sweden, in that he did not sexually assault her. Once again these were matters covered extensively and adequately in evidence and do not give grounds for appeal.[23]The third point addressed by the Crown concerns the audio tape. The applicant raised this matter with the solicitor prior to trial. The tape was examined by an expert instructed on the applicant's behalf. The expert report was that the interview had not been tampered with in any way. This was dealt with in the course of the trial. The judge addressed it in summing-up. There is nothing in the point.[24]The fourth matter raised by the Crown concerns the allegation that the victim was not interviewed on the date and at the time that the police recorded. The Crown observed that the police officer who attended the ABE interview with the complainant did get the date wrong at the beginning of recording but she corrected the date at the end of the ABE interview. Once again this was adequately and fairly dealt with by the judge in the course of the trial.[25]In short, the Crown say that the applicant has not raised any new matters in appeal. All matters were raised in trial, dealt with in the summing-up and considered by the jury.[26]The single judge refused leave to appeal. The judge observed that the applicant was convicted by the jury of the offence following trial in which he had a full opportunity to challenge the evidence of the complainant and give his own account, all matters were properly summed up by the judge in accordance with the law. The issue was whether the jury was sure of the accuracy of the complainant's evidence and by their verdicts they were. The assessment of the evidence was for the jury and not for the Court of Appeal.[27]The single judge observed that the grounds of appeal were set out in lengthy correspondence which were incoherent and inadequate in explaining why the verdicts were unsafe. The applicant was obsessed with the accuracy of the tape recording but the evidence before the court adequately dealt with that. There was nothing in the extensive grounds of appeal. The application was misconceived.[28]The single

judge also stated this:

"You should be aware that if you persist in making it, the full court may well decide that a period of time spent in custody should not count towards sentence."
We endorse the full reasoning of the single judge. We have read all the papers carefully. There are no remotely arguable grounds of appeal raised in those papers.[29]As observed, the applicant was warned that the pursuing of the application could lead to a loss of time order. In our judgment, this is a case where we should make such an order. We direct that there be 42 days loss of time under the Criminal Appeal Act 1968 and the Prosecution of Offences Act 1985.[30]For all these reasons the application for leave to appeal is refused. WordWave International Ltd trading as DTI hereby certify that the above is an accurate and complete record of the proceedings or part thereof.