Sultan v REGINA

Factual and Procedural Background

On 24 December 2003, the Appellant engaged in sexual conduct with his estranged wife at her residence, where she lived with their three children. He was convicted on 12 August 2005 at the Crown Court before Judge Stone QC and a jury on one count of rape and one count of indecent assault, receiving a four-year prison sentence. The appeal, for which leave was granted, concerns fresh evidence regarding the Appellant’s psychological condition at the time of the offence, specifically a diagnosis of Asperger's Syndrome presented for the first time in a medical report dated 8 May 2007 by Dr Blackwood. The court heard oral evidence from Dr Blackwood and reviewed reports and evidence from Dr Chesterman, commissioned by the Crown, and Dr Burke, the Appellant’s longstanding treating psychiatrist.

The Appellant was born in 1970 in Bangla Desh and moved to England in 1977. He had a turbulent relationship with his wife, including prior allegations of rape withdrawn by the wife. An injunction prohibited the Appellant from contacting his children unsupervised. On Christmas Eve 2003, despite this, he visited his children’s home. The ensuing sexual encounter was disputed: the Appellant claimed it was consensual, while the wife alleged non-consensual acts including indecent assault and rape.

The trial defence was a factual dispute over consent, with no medical evidence presented regarding mental illness affecting reliability or mens rea. The trial judge directed the jury accordingly, emphasizing the clarity of the wife’s refusal and rejecting any suggestion of misunderstanding.

Following conviction, the Appellant’s initial counsel advised there were no grounds for appeal. The Appellant pursued leave to appeal with multiple grounds, including claims of inadequate representation and suppressed psychological evidence, all initially rejected. Subsequent psychiatric assessments during imprisonment led to the new diagnosis of Asperger's Syndrome. After procedural steps involving changes in representation and further evidence gathering, the appeal came before the court with fresh medical evidence and renewed applications to admit new evidence and appeal.

Legal Issues Presented

1. Whether fresh medical evidence diagnosing the Appellant with Asperger's Syndrome at the time of the offence affects the safety of his convictions.
2. Whether the new evidence should be admitted under section 23 of the Criminal Appeal Act 1968.
3. Whether the Appellant’s mental condition could have impacted his mens rea, specifically his understanding of the complainant’s refusal of consent.
4. Whether the convictions remain safe in light of the fresh evidence and its implications.

Arguments of the Parties

Appellant's Arguments

• The diagnosis of Asperger's Syndrome was unknown at trial and provides a real defence on mens rea, as the condition impairs understanding of social cues and intentions.
• The new evidence is credible, admissible, and was not available at trial for reasonable explanations.
• The Appellant’s mental condition could explain his conduct and alleged mistaken belief in consent.
• The fresh evidence justifies allowing the appeal and ordering a retrial.

Crown's Arguments

• The diagnosis of Asperger's Syndrome is not sufficiently well grounded and is disputed.
• Even if accepted, it does not explain why the Appellant acted as he did despite the complainant's clear refusal.
• The case was too clear-cut ("black and white") for the diagnosis to have affected the trial outcome.
• Admission of fresh evidence should be exceptional and is unjustified given the prior medical evidence available at trial.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully considered the fresh medical evidence diagnosing the Appellant with Asperger's Syndrome, a developmental disorder characterized by impaired social interaction and difficulties understanding others' intentions. The diagnosis was supported by Dr Blackwood's clinical and psychometric assessments, although challenged by the Crown’s expert Dr Chesterman and the Appellant’s longstanding psychiatrist Dr Burke, who lacked expertise in this area.

The court found the diagnosis cogent and credible, noting that the Appellant’s lack of cooperation with some assessments was consistent with symptoms of the disorder rather than manipulation. The Crown ultimately did not dispute the admissibility of the evidence but contested its relevance to the appeal.

Applying section 23 of the Criminal Appeal Act 1968, the court was satisfied that the new evidence was capable of belief, admissible, and there was a reasonable explanation for its absence at trial. The court rejected the Crown’s submission that the new evidence would not have affected the verdict, finding that the diagnosis could have impacted the trial in several ways: by providing a mens rea defence, by allowing the jury to assess the Appellant’s honesty regarding his beliefs, and by explaining his unusual trial behaviour.

The court acknowledged the credibility of the complainant’s evidence but emphasized that the new evidence introduced a legitimate ground for doubting the safety of the convictions. The court also noted the concerns expressed by the Appellant’s doctor, sister, and the complainant herself regarding the fairness of the trial.

In light of these considerations, the court concluded that the convictions were unsafe and that justice required admitting the fresh evidence and allowing the appeal.

Holding and Implications

The court allowed the appeal, quashed the Appellant’s convictions for rape and indecent assault, and ordered a retrial.

The direct effect of this decision is to set aside the original convictions and provide the Appellant with a new trial in light of the fresh medical evidence. No new legal precedent was established; rather, the decision reflects the court’s application of established principles regarding fresh evidence and the safety of convictions under the Criminal Appeal Act 1968.