Practice and Procedure

R v GULAB SINGH (2003)

PUBLISHED March 14, 2003

The defendant was rightly refused permission to adduce evidence that the complainant had lied at an earlier trial where the effect of such permission would be to circumvent the prohibition contained in s.41 Youth Justice and Criminal Evidence Act 1999.Appeal against sentence by leave of the single judge and renewal of application for leave to appeal against conviction. On 29 June 2001 in the Crown Court at Maidstone, before HH Judge Balston the defendant ('S') was convicted on two counts of rape and one of attempted rape. In relation to the convictions for rape S was sentenced to consecutive terms of seven and 12 years' imprisonment and a concurrent sentence of seven years' imprisonment was imposed in relation to the conviction for attempted rape. The total sentence was therefore, 19 years imprisonment. S had originally been tried on the charges in March 1999, when he was convicted and sentenced to 19 years' imprisonment. His conviction was overturned in 2001 in the light of new evidence that one of the complainants ('X') had had sexual intercourse with another man ('P') on the day of the alleged rape, whereas her evidence at trial had been that she was a virgin at the time of the alleged rape. A retrial was ordered. At the new trial, S applied pursuant to s.41 Youth Justice and Criminal Evidence Act 1999 to cross-examine X in relation to her previous sexual behaviour with P. That application was refused. Thereafter no evidence was led by the Crown that X had been a virgin at the relevant time. By his appeal against conviction S complained that: (i) the judge was wrong to preclude him from attempting to establish that X had lied under oath at the previous trial; and (ii) the judge ought to have allowed the cross-examination on the basis that, since X had asserted at the previous trial that she had only had sexual intercourse once, it was open to S to attempt to establish that such intercourse had been with P.HELD: (1) S's complaint as to (i) was unsustainable. In attempting to establish that X had lied at the previous trial, S was seeking to impugn her credibility in circumstances that the 1999 Act did not allow. (2) S's complaint as to (ii) could not succeed for exactly the same reason. The proposed cross-examination was intended solely to impugn X's credibility. (3) As to sentence imposed, S's conduct bore all the signs of the beginnings of a campaign of rape. (4) However, although the individual sentences could not be criticised, the overall total was slightly too long. Therefore, the sentence of 12 years' imprisonment would be reduced to one of eight years, thereby reducing the total period of imprisonment to 15 years.Application for permission to appeal against conviction dismissed. Appeal against sentence allowed to the extent indicated.

[2003] EWCA Crim 485