Al-Kazzaz v Director of Public Prosecutions

MR JUSTICE OUSELEY: This is an appeal by way of case stated against the decision of Harrow Crown Court, through Mr Recorder Lerego QC and justices, on 30 May 2014. They heard the appellant's appeal against his conviction at Hendon Magistrates' Court in October 2013 for assaulting his wife on 8 July 2013. The appeal was dismissed by the Crown Court.

There are three questions, to which I shall come to at the end of the judgment, raised for this court's opinion. The first concerns an abuse of process relating to the absence of the wife as a witness; the second concerns whether the court should have accepted a submission of no case to answer because of what was said to be a want of evidence on the ingredient of absence of consent; and finally, whether a finding made in relation to the significance of requests for CCTV footage was based on any proper evidence.

The first question is whether there was an abuse of process in the appeal, which was an appeal by way of rehearing, being heard at all. The question of the availability of the complainant as a witness had arisen before. The case stated in paragraph 4 recites what happened in the morning when the case was called on at 10.10am on 30 May 2014. Prosecuting counsel said that the wife was not at court to give evidence, but her sister, who was present at the alleged incident, was present to be called. A witness summons had been served on the wife on 15 May 2014. The wife had been visited on 29 May (that is the day before the hearing) and had confirmed that she would indeed be coming to court the next day. That very morning of the hearing messages had been left on her phone by the officer in the case and an interpreter. She has either no or very little English.

There was an adjournment to ascertain whether the wife would be attending. The court was told that she was still not at court, messages on her phone had been left unanswered, uniformed officers had attended her home address, but that there was no sign of her there.

The court, for the purposes of this issue as to whether there should be adjournment or whether the case should proceed at all, had a witness statement from the officer in the case who had visited the wife on 15 May 2014. She had gone to the address and had spoken, with the assistance of LanguageLine and an Arabic speaking interpreter, to the wife. The statement of the officer said that she did not wish to attend the hearing and she wanted the case dropped against her ex-partner. She was finding things difficult, alone and caring for her two young children, and felt overwhelmed by the situation. She had called the defendant (the appellant in this case before this court) to ask him to take responsibility for the children and to pay towards them and if he did so she would drop the charges. She told the officer that the defendant had agreed to this and told her to be nice to him until the court case appeal was over and he would help her. That was the reason she had not attended court.

I interject that there had been three previous adjournments of this case: on 30 January 2014 at the instigation of the prosecution because of short notice to the witnesses, again on 13 March 2014 when the appellant's solicitors had sought an adjournment, and again on 24 April when the wife had not attended.

Returning to the statement of the officer in the case, she said she told the officer that she had not spoken to her husband since that conversation with him, but he advised her that he would make arrangements for the children to be looked after by his new wife. She had been called earlier in the week of the 15th by her husband to confirm that the new wife would look after the children and the date had been agreed to take them. There was then a part of the statement which I am told is disputed, although the dispute is not raised in the case stated, in which the wife says she told the husband that if she did not go to court she would get into trouble, and he advised her she would not get into trouble and that this was the right thing to do.

The statement continues that the officer had spoken at length with the wife and assured her on advice that she would seek assistance for her to help look after the children. She discussed her concerns in relation to witness intimidation and the wife confirmed that she was not being forced not to attend, but did not attend because she was overwhelmed and found things difficult. She then apologised for not contacting the officer and advised her that she would indeed attend the court for the hearing on 30 May. She was then served with a witness summons and details were provided.

In those circumstances the court was faced with a question of what to do. The respondent contended that there should be an adjournment to enable the wife to attend to give evidence at a later date. They did not wish to apply for a warrant for the wife's arrest, but if no adjournment was granted it would proceed with the evidence available, namely that of the sister. Counsel for the appellant said that there should be no adjournment. The allegations were disputed, the defence was one of self-defence and the attendance of the wife had been required from the outset.

Mr Murray, then as now for the appellant, argued (a) that in her absence the prosecution was unable to prove lack of consent and (b) it was grossly unfair for the prosecution to carry on, as the appellant was put in a worse position than he would have been if the wife had attended and had been cross-examined.

Though not in the case stated, I accept that the consideration underlying that second point was his appraisal of how the wife's evidence had gone in the Magistrates' Court. The appellant there had relied upon what he said were inconsistencies in the evidence about the assault given by the wife and that given by the sister. This may have emerged only in cross-examination, but it presented an opportunity that the defendant would seek to exploit again in the Crown Court, which he thought would assist his defence, and he had perfectly reasonably expected that the wife would be present in order to enable that opportunity to be taken.

The court refused to adjourn the hearing of the appeal. The reasons for that were: the events had taken place nearly a year before; there had been three previous adjournments; it was not the first time the wife had not attended; and if they were to adjourn the same thing was likely to happen again. Therefore they considered they would hear the evidence that the parties had available that day. They then dealt with the contention that it would be unfair to try the appellant. They said:

Mr Murray, on behalf of the appellant, contends that there could be no fair trial in these circumstances. The contention was, as I have said, that he perfectly reasonably expected that the wife would attend, that gaps between or inconsistencies between the evidence of the wife and sister could be exploited to the advantage of the defence, and that opportunity was to be denied them. Mr Murray further submitted this was not simply a case of proceeding with a witness missing; this went further because there had been a conscious choice by the police not to ask for an arrest warrant. No reason for that is recorded in the case stated, nor had there been any application by the prosecution to adduce in evidence, under the hearsay provisions of the Criminal Justice Act 2003, the statement which the wife had made.

Mr Chinweze responds for the CPS that the right approach would be that in R (on the application of Ebrahim) v Feltham Magistrates' Court [2001] Westlaw 98133, [2001] EWHC (Admin) 130. It is a Divisional Court case and at paragraph 27 Brooke LJ said:

In my judgment, the decision of the Crown Court was entirely right. There was evidence of the offence available at court which could be called. The absence of the wife was a point which the defendant could draw attention to as a witness who had decided not to attend and whose attendance the prosecution had not pressed for. The arguments foreshadowed in paragraph 27 of Ebrahim were ones it was open to the defence to make.

Once the judges had decided not to adjourn the case, it was quite right for them to allow the case to proceed. The notion that the absence of a witness whom the defendant wished to cross-examine must mean that the case can no longer fairly be tried is, in my judgment, going a long way too far. The evidence which the wife would have given is uncertain as well. The defence did not seek either to adduce the witness statement. It may be that the witness statement itself was not helpful to the defence, but it was only the evidence she would find under cross-examination which was what the defence wanted. If the prosecution are said to have failed to adduce the evidence in hearsay under the hearsay provisions, the same point can also be made in respect of the defence.

So far as the failure to seek an arrest warrant is concerned, although no reasons for that are expressed in the case stated, it seems perfectly clear that an arrest warrant would have necessitated yet a further adjournment of the case and that was something which, for very good reasons, the Crown Court was not prepared to contemplate and, perfectly understandably, the appellant did not want. In my judgment this case is a very long way from one in which no fair trial was possible.

I turn to the second issue, which was the refusal to accede to a defence submission of no case to answer at the close of the prosecution case. What is said here is that in order to make out the offence of assault it is necessary for the prosecution to prove the ingredient that there was no consent to it. Mr Murray was realistic in his submission about this point. The absence of consent is usually proven by the circumstances and nature of the assault. The court was fully entitled to conclude that the evidence given by the sister, if accepted, and she was a close eyewitness to the assault, demonstrates that there clearly was no consent.

Proof of the absence of consent does not require evidence of the alleged victim saying that there was no consent. As I say, it is usually obvious that there is no consent. The sister could have been asked about signs or words of consent. But it would have been a wholly bizarre set of questions in the light of the description of the assault given by the sister. Indeed, consent would have been inconsistent with the defendant's case which was self-defence. It is perfectly obvious that there was a case to answer. It is perfectly obvious that the absence of consent was amply demonstrated, and met the Galbraith test. The second ground is dismissed.

This third ground concerns a comment made by the court in the case stated about the CCTV evidence. The case stated said that from the statement of agreed facts on eight occasions during the police interview the appellant had asked the police to check for available CCTV footage. The appellant gave evidence and said that he had asked the police to check any CCTV in the street. In submissions Mr Murray invited the Crown Court to accept the evidence given by the appellant and to reject, as satisfying the criminal standard of proof, the evidence given by the sister. There were a number of inaccuracies in it, he said, but he then made this further submission that if the appellant was guilty he would not have asked the CCTV footage to be viewed.

I add that there is no evidence, one way or another, as to whether there was any CCTV camera, or as to whether, if so, there had been any CCTV footage from it.

The structure of the Crown Court decision was that having reminded themselves of the burden of proof, that the case depended upon the evidence of the sister and that the appellant was a man of good character which was relevant, they preferred the evidence of the sister to that of the appellant. They explained briefly why. They said that she was a credible witness on the central issue and that the appellant had pulled his wife's hair and slapped her as the sister described.

Their reasoning could have ended there and would have been perfectly satisfactory had it done so. However they, in fairness, decided to deal with such other points as were made by the appellant, which he had said demonstrated that he might have been innocent. They referred to the shortness of the incident; they referred to the reason for the appellant calling the police, which they said was simply so that he could give his own version of events because the wife and sister had already called the police; and they then said this about the CCTV:

Mr Murray says that this issue was not raised in questioning, either by the Crown or by the Court, of the appellant as to whether that is what he thought. There was therefore no evidence to justify that conclusion.

In my judgment, that is not so. What the Crown Court is doing is sweeping up the remaining points beyond the critical ones and it is expressing a view of them. One of the factors which must be remembered is that the Crown Court had the advantage of listening to the evidence not just of the sister about the appellant's actions, but also from the appellant himself about what had happened. They were entitled to reach the view that, having concluded that the sister was credible, that was really how the appellant viewed what had in fact happened, and to regard that as part of the picture of him that they had and as explaining the request for CCTV.

It does not matter that it was not raised as a question, it is simply a comment on the impression which he gave. It is, in any event, a peripheral point. Their reasoning is quite clear: they simply did not believe his evidence. That is sufficient.

Accordingly, turning to the questions asked by the court:

MR JUSTICE OUSELEY: Thank you very much, Mr Murray.