Her Majesty’s Advocate v. J.W. [2020] HCJ 11

Decision/Appeal from a Preliminary Hearing:- On 14 January 2020, at Glasgow High Court, the accused appeared at a Preliminary Hearing in relation to a charge of inter alia rape and abduction contrary to section 1 of the Sexual Offences (Scotland) Act 2009 and the common law. An application was made on behalf of the Crown and the accused in terms of section 275 of the Criminal Procedure (Scotland) Act 1995. The Crown’s application was not opposed, however, the application made on behalf of the accused was opposed by the Crown. A special defence of consent was lodged on behalf of the accused in relation to the sexual contact between the accused and the complainer at the accused’s home address. The Crown application sought to elicit evidence that shortly before the behaviour alleged in the charge, whilst in the complainer’s motor car, the accused and the complainer engaged in consensual sexual activity including vaginal and oral penetration. The accused in paragraphs 1 (c), (e) and (f) of the defence application sought to lead evidence of events specified in the indictment which were said to have occurred after the alleged sexual assault at the complainer’s home (which counsel for the accused ultimately accepted were part of the subject matter of the charge and the application was deemed unnecessary) and paragraph 1(b) referred to things which the accused was said to have asked the complainer about in the course of the text exchange (which counsel for the accused accepted were irrelevant and withdrew that part of the application). Paragraph 1(a) of the application sought to elicit evidence about the content of the communications between the accused and the complainer by text in the days prior to meeting up on the day in question including messages in which the complainer had said to the accused that she had a high sex drive, had a preference for DP (double penetration) and that she enjoyed anal sex (which formed part of the allegation). It was submitted on behalf of the accused that the text messages were relevant since it would demonstrate that she had indicated a preference for that activity prior to meeting the accused and that it informed his reasonable belief during the course of the sexual encounter that she did consent to anal penetration. It was submitted that, not only was it relevant, but that it satisfied the cumulative tests set out in section 275 in that it related to specific occurrences of behaviour which were relevant to establishing whether the accused was guilty and the evidence proposed was of a probative value which was significant and likely to outweigh any risk of prejudice to the proper administration of justice. Paragraph 1(g) of the application sought to elicit evidence of penetrative sexual activity which the accused contended the complainer had engaged in with him consensually at some point between 9.30am and 10.30am in the accused’s car after they had left his home, had visited the shop specified in paragraph 1(e) and had been for breakfast as referred to in paragraph 1(f) of the application. It was submitted that this account had been provided by the accused to the police when he was interviewed and the evidence was so closely connected in time to the alleged events specified in the charge that the evidence sought to be elicited would be relevant to the jury’s assessment of consent in relation to the prior episode. It was submitted that the evidence was not only relevant in passing the common law test but also satisfied the cumulative tests set out in section 275.  On behalf of the Crown it was submitted that paragraphs 1 (c), (e) and (f) of the defence application did not engage section 274 and paragraphs 1(a) and paragraph 1(g) were irrelevant and inadmissible. It was submitted that consent could not be given in advance and the content of the text messages could not inform the question of consent at a later point and nor could the evidence permit the accused to hold a reasonable belief in consent at a point in time separate from when the texts were sent. In relation to the defence application to lead evidence of events which were said to have taken place a matter of hours after the allegations forming the subject matter of the charge it was submitted that the complainer denied that the conduct specified in paragraph 1(g) took place and the evidence was a collateral matter and the evidence sought to be led was of no relevance to the question of whether consent had been present at the previous incident earlier in the evening. With reference to Oliver v HMA [2019] HCJAC 93 and what was said at paragraph 9 it was conceded that the Crown’s primary submission might be contrary to what was said by the court in that case, however, in any event it was submitted that the evidence sought to be elicited failed to pass the test specified in section 275(1)(c). Here the court considered that evidence specified in paragraphs 1 (c), (e) and (f) of the application related to the subject matter of the charge and did not engage section 274 of the Act. In relation to paragraph 1(a) the court reiterated that consent to a sexual act may not be given in advance and that issue cannot be illuminated or determined to any extent by prior communications of any sexual interest by a complainer in an accused or in any type of sexual activity. In addition, any belief as to consent has to be reasonable rather than honest (section 16 of the 2009 Act) so a prior expression of willingness to engage in a particular sexual activity cannot provide the basis for a “reasonable” belief in consent just as it cannot amount to consent to a subsequent act of that kind. As such the application in relation to paragraph 1(a) was refused as irrelevant. The court also considered the case of Oliver and distinguished the decision there to allow, what on the face of it appeared similar evidence, to that sought to be elicited at paragraph 1(a). In relation to paragraph 1(g) the court refused the application on the basis that consensual sexual intercourse with the complainer at a point between 9.30am and 10.30am had no bearing on whether the complainer consented to sexual activity with the accused some hours earlier. The court reiterated what has been previously stated by the court, namely, that one does not consent to sex in general but rather that an individual “consents to this act of sex with this person at this time and in this place”. The court also considered that the complainer denied such further sexual activity taking place and that disputed evidence is the type of collateral issue which the courts are keen to exclude for reasons of convenience and expediency. The court did not consider that it was prevented from reaching that decision on the basis of what was said in Oliver which had its own particular facts where it was admitted that the complainer continued to stay with her partner, the appellant, for a period of time after the events specified in the indictment and to have sexual intercourse with him during that period and, as such, the court considered that conduct was not in dispute and was not collateral. The court would nevertheless have considered the tests in section 275 not to have been met there being no significant probative value to the evidence, particularly having regard to the appropriate protection of the complainer’s dignity and privacy and the proportionality of admitting the evidence. In relation to the Crown application the court expressed concern about the evidence sought to be elicited namely the accused and the complainer engaging in consensual sexual intercourse in her motor vehicle before the conduct forming the subject matter of the indictment given the Crown’s submission that consent on one occasion was of no value in demonstrating the presence of consent on another. The accused appealed against the decision of the Preliminary Hearing judge but by a decision of the appeal court dated 27 February 2020 the decision of the judge at first instance was affirmed.