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IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT AT LEICESTER (MR RECORDER HALLAM) [33JJ2745323] [2025] EWCA Crim 1139 CASE NO 202402479/B2 |
Royal Courts of Justice
Strand
London
WC2A 2LL
Before:
LORD JUSTICE COULSON
MRS JUSTICE CUTTS
RECORDER OF WOLVERHAMPTON
(HIS HONOUR JUDGE CHAMBERS KC)
(Sitting as a Judge of the CACD)
REX
V
GHULAN MOHAMMED
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NON-COUNSEL APPLICATION
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JUDGMENT
LORD JUSTICE COULSON:
Introduction
The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where an allegation has been made that 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 publication if it is likely to lead members of the public to identify that person as the victim of that offence.
The appellant is now 37. On 30 June 2024 he was convicted on count 2 of attempted rape, on counts 3, 4, 5 and 6 of sexual assault, on count 7 of theft and counts 8 to 11 of fraud. He was sentenced to a term of 7 years and 3 months' imprisonment with the attempted rape being taken as the lead offence. He renewed his application for leave to appeal against his conviction on that count only following refusal by the single judge.
On 18 December 2023, at around 9.00 am, a friend of the complainant contacted the police to report that the complainant had been assaulted by a taxi driver who tried to rape her and took her purse and bank cards.
The complainant was to tell the police that, the previous evening, she had been with a friend at the Holiday Inn in Leicester when they both got drunk. Her friend went missing at about 9.30pm. Shortly after 1.00 am, the complainant had contacted friends asking for their help. They located her at a Premier Inn hotel where she was in the back of a vehicle parked in the car park. She was visibly upset and had facial injuries. She had her clothes on but her knickers were around one of her ankles inside her trouser leg. They fell off when she stood up. The applicant was sitting in the driver's side of the vehicle and he was naked from the waist down. The complainant's friends confronted him and noted his registration number. He was subsequently traced through that vehicle registration.
Through CCTV, and audio recordings from the complainant's phone, the police were able to establish the timeline of the events between 9.30 pm and 1.30 am. The applicant had passed the complainant at around 9.30 pm. He was in his vehicle. She was walking on her own and appeared very unsteady. He approached her and engaged her in conversation. The applicant repeatedly asked her how old she was. He told her that she was beautiful. He asked if she wanted to go to a hotel and whether he could "eat her pussy".
Subsequently they were seen on CCTV at a petrol station, where the applicant could be heard saying to the complainant that he wanted to "fuck her tiny little pudda" and calling her "a sexy little bitch". The complainant could be heard crying and saying that she wanted her mum. There were other audio recordings of the applicant and the complainant during the late evening, and subsequent recordings when the complainant's friends confronted the applicant in the car park.
The applicant was subsequently arrested at his home address. He had scratches on his neck. The complainant's bank card was recovered from him and her purse was found during a search of his car.
It was the Crown's case that the applicant had seen the complainant and realised that she was extremely intoxicated. Instead of taking her to a nearby hotel, he guided her to his car. He attempted to rape her and touched her sexually both over and under her clothing and assaulted her causing an injury to her face. He also stole her purse and bank cards and even used one of the bank cards. The Crown's case was that the complainant's level of intoxication was so pronounced that she could not have genuinely consented to any physical activity with a stranger and the applicant must have known that she did not consent to the physical contact he had with her.
In relation to the attempted rape count, there was a good deal of circumstantial evidence including:
The complainant's evidence about her facial injuries which the various pieces of CCTV footage showed were caused when she was with the applicant.
The complainant's evidence about her underwear being only on one leg when she was found, which meant in turn that, at some earlier point, her trousers must have been removed.
The complainant's comments to her friends when they found her in the car which included: "When he first slapped me I shouted at him. He then wanted to sleep with me but I refused"; "I put up a fight, I'd rather die than surrender"; “He wanted to sleep with me, I resisted him. I started kicking him"; "He hit me first, that's why I hit him back. I would rather die than submit."
The applicant's comments on the audio recordings which are evidence of his clear intention to embark on sexual activity with the complainant, and that in particular he wanted to have penetrative intercourse with her.
The applicant's account to the police that one of the occasions when the complainant had what he called a "drama" was because they did not have sex in the back of the car. That indicated his attempt to have sex, her refusal and her subsequent upset.
The injuries to the applicant's neck as evidence that the complainant fought him off.
The defence case was that the touching was consensual and there was no attempt by him to have penetrative sexual intercourse. When giving evidence the applicant repeated what he had told the police that the complainant "had dramas", such as when she got out of the car at the petrol station. He accepted that he had made the sexual comments heard on the audio recordings but he said he did not mean that was what he wanted to do to the complainant.
At the end of the prosecution case the defence submitted that there was no case to answeron count 2 (attempted rape). In a careful written ruling the judge (Mr Recorder Hallam KC) set out the evidence that we have noted out above. He noted at paragraph 11 that the Crown's case was that the only reason that penetrative intercourse did not happen was because the complainant had fought off the applicant. He identified three of the six strands of circumstantial evidence to which we have already referred: the applicant's own account to the police that on one of the occasions when the complainant had what he called a “drama” was because they did not have sex in the back of the car; the comments which the complainant had made to her friends when they found her in the car; and her injuries.
The judge concluded that there was a case to answer and that a reasonable jury could draw the inferences for which the prosecution contended. If they concluded that the removal of the knickers was an act more than merely preparatory then they would convict the applicant of the attempted rape of the complainant.
The application for permission to appeal against conviction was based solely on the ground that the judge should have allowed the submission of no case to answeron count 2. That application was carefully considered but refused by the single judge. He said:
In my opinion, the Recorder’s rejection of the submission of no case to answer on the attempted rape count was justified.
2.The test, correctly applied by the Recorder, was whether, taking the prosecution evidence at its highest, a reasonable jury could properly convict.
3.Here, there were recorded statements of the applicant evidencing his intent to have sex with the complainant. He had initially approached her as self-evidently a lone and drunk female. They went not to her nearby hotel but to the back of his car. There was evidence that her trousers were removed there and her knickers partially so. There was evidence that a jury could conclude showed that she had physically resisted the applicant and had shouted out ('drama'), coupled with her statements to her friends. The evidential approach required on assessment of whether acts could properly be assessed as 'more than merely preparatory' for the commission of the offence is set out in the AG Reference (No,1 of 1992) case, duly referred to by the Recorder.
There certainly were points that could be made by the defence. But, in my view, the Recorder in evaluating the evidence was justified in ruling that, overall, these matters were matters for the jury and that a reasonable jury could properly convict, depending on the view of the evidence it took.
I therefore refuse leave to appeal."
The law in this sort of situation was helpfully spelt out by Pitchford LJ in R v Masih [2015] EWCA Crim 477. At paragraph 3 he identified the appropriate approach in cases based on circumstantial evidence:
"The prosecution case was based upon circumstantial evidence. There is no dispute between the appellant and the respondent as to the correct approach in law to a submission of no case to answer when all the critical evidence is indirect and inferential. The ultimate question for the trial judge is:
Could a reasonable jury, properly directed, conclude so that it is sure that the defendant is guilty?
It is agreed that in a circumstantial case it is a necessary step in the analysis of the evidence and its effect to ask:
Could a reasonable jury, properly directed, exclude all realistic possibilities consistent with the defendant’s innocence?
Matters of assessment and weight of the evidence are for the jury and not for the judge. Since the judge is concerned with the sufficiency of evidence and not with the ultimate decision the question is not whether all juries or any particular jury or the judge would draw the inference of guilt from the evidence adduced but whether a reasonable jury could draw the inference of guilt. These propositions are derived without contention from the decisions of this court in Galbraith [1981] 1 WLR 1039, Jabber [2006] EWCA Crim 2694 (approved by the Privy Council in Goring [2008] UKPC 56 at paragraph 22), Hedgcock, Dyer and Mayers [2007] EWCA Crim 3486,… and G and F [2012] EWCA Crim 1756."
Applying that test, we respectfully agree with the single judge. This was a classic case of circumstantial evidence which had to be left to the jury. There were plenty of points that could be, and were, made for the defence, but the circumstantial evidence adduced by the Crown strongly suggested that the appellant had attempted to rape the complainant. The judge was right to say that it was for the jury to weigh and assess that evidence. There was no basis in law on which count 2 should have been withdrawn from them.
For these reasons this renewed application for permission to appeal against conviction is refused.
Since there was no proper basis for a renewal (because there was nothing that the single judge overlooked or got wrong), this was a hopeless application. To reflect that, we make a loss of time order of 28 days.
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