Ghahi, R v

J U D G M E N T

1. MR JUSTICE CRANE: On 18th February 2005 in the Crown Court at Kingston-upon-Thames, this applicant was convicted, by a majority, of rape and sentenced by the trial judge, His Honour Judge Southwell, to a sentence of 7 years' imprisonment.

2. The jury failed to agree on the second count on the indictment, rape on the same victim on the same occasion and that count was ordered to lie on the file. He renews his application for leave to appeal conviction after refusal by the Single Judge.

3. On 19th January 2004 the complainant went with a female friend to a club for gay men and women in Tottenham Court Road in London. They had been drinking. They continued drinking at the club and the complainant admitted becoming very drunk.

4. The prosecution case was that the complainant left the club in the early hours to get some air, as she felt unwell, and was approached by the applicant outside. She got into his car. She believed that it was a minicab but instead of driving her to her home, he drove to his flat in North London. She fell asleep during the journey. She awoke to find that they had arrived at an address and she walked with the applicant to his flat. Once inside she sat on a sofa in the living room. When the applicant kissed her she turned her head and said "no" but he then pulled her trousers down to her knees and raped her. Her account was that he also raped her some moments later while she was still on the sofa. She did not struggle, she said. She was too drunk to resist. She then asked if he would drive her back to the club. He was reluctant but did so. She could not remember anything about the return journey.

5. The complainant told the court that she had spoken to her friend on her mobile telephone on about four occasions, including a complaint that the applicant had had sex with her without her consent. Indeed, the friend gave evidence that she had received such calls. The following day the complainant went to a clinic for a Morning After contraceptive pill. In due course the staff referred the matter to the police. The applicant was identified because DNA material matching his was found when swabs were taken.

6. The defence case was that intercourse had taken place on one occasion and that it had been consensual. The applicant had said that he had met the complainant inside the club and they had danced and kissed and that by agreement the complainant had followed him out of the club and into his car and she was aware they were driving to his flat. He said that in fact after he had driven her back to the flat, they agreed to meet the next evening but she failed to turn up. He called character evidence from two female friends.

7. The original grounds settled by counsel were the subject of a refusal of leave by the learned Single Judge.

8. Mr Price, counsel who now appears for the applicant has accepted that the refusal of those grounds were inevitable but he has drafted perfected ground of appeal on which he relies. His perfected grounds are full and detailed and he has confirmed them in succinct submissions this morning.

9. He accepted that, although the CCTV tapes had been lost, and the judge was correct to refuse an application to stay the indictment for abuse of process on that basis, nevertheless the trial process should have been used to correct any prejudice and unfairness which that loss caused. He submits, first of all, that the evidence relating to how, where and when the defendant first met the complainant should have been excluded. In particular, the evidence about him being a minicab driver should have been excluded and he should not have been permitted to be questioned on that topic. In fact the evidence, as it came out, was that the complainant was not told by him, according to her, that he was a minicab driver; she simply assumed it. But in fact the state of the evidence was accurately summed up by the learned judge. The learned judge had not been asked to exclude the evidence. It was of relevance and we cannot see that it caused unfair prejudice to the applicant.

10. The mobile telephone records had not been obtained which might or might not have confirmed that the alleged calls to friend had taken place although they would not have of course revealed what was said in those calls. The learned judge was not asked to exclude the evidence of the friend or the evidence in relation to those messages. It is speculation to ask what the result of further inquiries about those calls would have been. The matter was fairly summed up to the jury.

11. The next ground relates to the conflict of evidence about whether the complainant collected her coat from the cloakroom, as the applicant alleged or whether she already had it with her. It is proposed it is said to make further enquiries at the club on that topic and an application might be made to introduce fresh evidence. That is speculative. It is the kind of matter that could and should have been explored at trial.

12. The cross-examination of the defendant, apart from the minicab issue, was also the subject of complaint in two respects. First of all, the applicant said, in his evidence in chief, that he was gay. It is accepted that in principle he could have been asked about that but counsel for the prosecution went on to question why this had not been stated in his defence statement. As a result of submissions in the absence of the jury, that was taken no further, but complaint is made that no explanation was given to the jury, which might have left a suspicion on their part that there was a recent invention by the applicant. In fact, there was no basis for saying that it was a recent invention.

13. The second aspect of the cross-examination was this. The prosecution cross-examined him on the basis that the applicant's evidence that the complainant had encouraged him to continue have intercourse without a condom was a recent invention. When the matter was dealt with in the absence of the jury, it was accepted that this was not recent invention and in fact the prosecution took the matter no further. Some explanation was given to the jury. The complaint is that it was much too brief. It is certainly arguable that the explanation in the second instance should have been fuller and in relation to the first incident should have been given to the jury. Nevertheless, those matters even combined with the other features that Mr Price puts before us do not lead us to the conclusion that this conviction is unsafe.

14. For those reasons we must refuse the renewed application for leave.