Mohammed, R. v

Factual and Procedural Background

The Sexual Offences (Amendment) Act 1992 was held to apply to the offence under consideration; the court noted the statutory reporting restriction that prevents publication likely to identify the victim of a sexual offence during the victim's lifetime.

The Appellant (aged 37) was convicted on 30 June 2024 of multiple counts: count 2 (attempted rape), counts 3–6 (sexual assault), count 7 (theft) and counts 8–11 (fraud). The Appellant was sentenced to 7 years and 3 months' imprisonment, the attempted rape being treated as the lead offence. The Appellant renewed an application for leave to appeal against his conviction on count 2 only following refusal by a single judge.

The factual events leading to the prosecution, as found in the trial evidence, can be summarised as follows. On 18 December 2023 a friend of the Complainant contacted the police to report that the Complainant had been assaulted by a taxi driver who had tried to rape her and had taken her purse and bank cards. The Complainant said that the previous evening she had been at a hotel (referred to in the trial as a first hotel) with a friend; the friend went missing at about 9:30 pm. Shortly after 1:00 am the Complainant contacted friends and was located in the car-park of a second hotel in the back of a vehicle. She was visibly upset and had facial injuries. Her outer clothes were on but her underwear was down around one ankle (inside a trouser leg) and fell off when she stood. The Appellant was observed sitting in the driver's seat and was naked from the waist down. The Complainant's friends confronted the driver, noted the vehicle registration and the driver (the Appellant) was subsequently traced.

Police evidence from CCTV and audio recordings (including recordings from the Complainant's phone) established a timeline from about 9:30 pm to 1:30 am. This material showed the Appellant passing the Complainant at around 9:30 pm, approaching her while in his vehicle, and engaging her in conversation. Recordings and CCTV evidence showed the Appellant repeatedly asking her age, making sexual remarks and proposing to go to a hotel with her. Later recordings from a petrol station captured further explicit sexual comments by the Appellant while the Complainant was heard crying and asking for her mother. The Appellant was arrested at his home; he had scratches on his neck. The Complainant's bank card was recovered from him and her purse was located during a search of his car.

The Prosecution's case was that the Appellant saw that the Complainant was extremely intoxicated, guided her to his car instead of to a nearby hotel, attempted to rape her, touched her sexually both over and under her clothing, assaulted her causing a facial injury, stole her purse and bank cards and used one of the cards. The Prosecution relied principally on circumstantial evidence to prove the attempted rape, and on the contention that the Complainant's intoxication made genuine consent impossible and that the Appellant must have known she did not consent.

The principal strands of circumstantial evidence identified at trial included:

• evidence linking the facial injuries to the period when the Complainant was with the Appellant (CCTV corroboration);
• the Complainant's evidence that her underwear was only on one leg when found, implying that at an earlier point trousers must have been removed;
• statements made by the Complainant to her friends when they found her in the car, describing resisting the Appellant and being struck (phrases recorded in the trial included statements to the effect that she shouted, refused, put up a fight and kicked);
• the Appellant's recorded comments evidencing his clear intention to embark on sexual activity with the Complainant, including an intention to have penetrative intercourse;
• the Appellant's account to the police that one of the moments the Complainant had a "drama" was because they did not have sex in the back of the car (which the Prosecution relied on as indicating an attempt to have sex and the Complainant's refusal); and
• the scratches to the Appellant's neck, relied on as evidence that the Complainant fought him off.

The Defence case at trial was that any touching had been consensual and that there had been no attempt at penetrative sexual intercourse. When giving evidence the Appellant maintained that the Complainant had sporadic problems or "dramas" (for example when she exited the car at the petrol station), accepted that he had made sexual comments recorded on audio, but denied that those comments reflected an intention to carry out the sexual acts described by the Prosecution.

At the close of the Prosecution case the Defence made a submission of no case to answer on count 2 (attempted rape). In a careful written ruling the trial judge (Judge Hallam) set out the evidence, identified a number of the circumstantial strands summarised above and concluded that there was a case to answer: a reasonable jury could draw the inferences urged by the Prosecution and, if the jury concluded that the removal of the Complainant's knickers amounted to acts more than merely preparatory to intercourse, the Appellant could be convicted of attempted rape.

Legal Issues Presented

1. Whether the trial judge (Judge Hallam) was correct to refuse the Defence submission of no case to answer on count 2 (attempted rape) — in other words, whether there was sufficient evidence that a reasonable jury could properly convict.
2. Whether the single judge erred in refusing the Appellant's application for permission to appeal against conviction on count 2.
3. Whether the circumstantial material — including the state of the Complainant's clothing, her contemporaneous statements and the Appellant's recorded statements — could properly be treated as acts that were "more than merely preparatory" to the commission of attempted rape (as required to sustain an attempt charge).

Arguments of the Parties

Prosecution's Arguments

• The Appellant saw the Complainant was extremely intoxicated and, instead of taking her to a nearby hotel, guided her to his car and there attempted to rape her.
• The Appellant touched the Complainant sexually both over and under her clothing and assaulted her, causing facial injuries.
• The Appellant stole the Complainant's purse and bank cards and used one of the cards.
• The Complainant's intoxication meant she could not have genuinely consented; the Appellant must have known she did not consent.
• The Prosecution relied on circumstantial evidence including: injuries linked to the period with the Appellant (CCTV corroboration); underwear only on one leg (implying trousers had been removed); contemporaneous statements by the Complainant to friends describing resistance ("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 Appellant's recorded sexual remarks and admissions indicating an intention to have penetrative intercourse; the Appellant's police account referring to a "drama" because they did not have sex in the back of the car; and scratches on the Appellant's neck consistent with resistance.

Defence's Arguments

• The touching was consensual and the Appellant did not attempt penetrative intercourse.
• The Appellant's evidence was that the Complainant had occasional "dramas" (including exiting the car at the petrol station) and that although he made sexual comments (as recorded), those comments did not reflect an intention to carry out the acts alleged by the Prosecution.
• On that basis the Defence submitted at the close of the Prosecution case that there was no case to answer on count 2 (attempted rape).

Table of Precedents Cited

Court's Reasoning and Analysis

The court's analysis proceeded from established authority on circumstantial evidence. It adopted the approach explained by Judge Pitchford in R v Masih: the trial judge, when faced with a submission of no case to answer in a circumstantial case, must ask whether, taking the prosecution evidence at its highest, a reasonable jury properly directed could be sure of the defendant's guilt and could exclude all realistic possibilities consistent with the defendant's innocence. The court emphasised that assessment and weight are matters for the jury and that the judge's role is to assess sufficiency of evidence, not to determine ultimate guilt.

The trial judge (Judge Hallam) had set out the Prosecution's circumstantial case in a careful written ruling and had identified three of the six strands of circumstantial evidence (the Appellant's police account referring to a "drama" because sex did not occur in the car; the Complainant's statements to her friends when found; and the Complainant's injuries). The trial judge concluded that a reasonable jury could draw the inferences relied on by the Prosecution and that, in particular, if the jury considered the removal of the Complainant's underwear to be an act more than merely preparatory to intercourse, a conviction for attempted rape could properly follow. The trial judge expressly applied the evidential approach from AG Reference (No.1 of 1992) when addressing the "more than merely preparatory" issue.

The single judge who first considered the application for leave to appeal applied the same legal test (whether, taking the Prosecution evidence at its highest, a reasonable jury could properly convict). The single judge recorded the features of the evidence relied on by the Prosecution: recorded statements by the Appellant evidencing an intention to have sex with a lone, drunk female; the fact that they did not go to the Complainant's nearby hotel but to the back of the Appellant's car; evidence consistent with trousers and underwear having been removed; evidence the Complainant had physically resisted and had cried out; and the trial judge's reference to AG Reference (No.1 of 1992) in relation to acts being more than merely preparatory. The single judge concluded that the trial judge's rejection of the no-case submission was justified and that those matters were for the jury to resolve.

The appellate court (the court delivering the opinion summarised here) applied R v Masih and the related authorities and agreed with the single judge and the trial judge. The court described the case as a "classic" circumstantial case that properly fell to the jury. It accepted that there were points available to the Defence (matters of weight and credibility), but held that the circumstantial evidence adduced by the Prosecution strongly suggested that the Appellant had attempted to rape the Complainant and that there was no legal basis for withdrawing count 2 from the jury. In short, applying the established circumstantial-evidence test, the court concluded a reasonable jury could draw the inference of attempted rape from the evidence adduced at trial.

Because the renewed application for permission to appeal raised only the submission that the trial judge should have upheld a submission of no case to answer on count 2 and because the court found nothing that the single judge had overlooked or misapplied, the renewed application was treated as hopeless. To reflect that assessment the court made a loss of time order of 28 days against the Appellant.

Holding and Implications

Core Ruling: The renewed application for permission to appeal against the Appellant's conviction on count 2 (attempted rape) is REFUSED.

Implications and immediate effects:

• The renewed application for permission to appeal against the conviction on the attempted rape count was refused by the court; the trial and single-judge rulings on the no‑case submission stand.
• Because the court considered the renewed application to be without proper basis, it made a loss of time order of 28 days against the Appellant.
• The opinion applied established authorities on circumstantial evidence and attempt (notably R v Masih and AG Reference (No.1 of 1992)); it did not purport to create or depart from existing precedent. No new legal principle was established beyond the application of those authorities to the facts of this case.