His Majesty’s Advocate v. D.M. [2024] HCJAC 49

Appeal under section 74 of the Criminal Procedure (Scotland) Act 1995:-The appellant was indicted to a Preliminary Hearing in relation to a single charge of rape and a charge of sexual assault both charges relating to his ex-partner, EW,  on the same evening in 2022. It was the appellant’s position that he did engage in the conduct libelled, however, a special defence of consent was lodged on his behalf. Two defence section 275(1) applications were lodged in advance of the Preliminary Hearing, the first seeking to lead evidence of the appellant’s account of the events around the time of the alleged offences, the second, sought admission of the complainer’s previous convictions, namely, a conviction for theft and three for theft by shoplifting, all in the district court between the months of May and July 2005. The second section 275 application was ultimately refused by the Preliminary Hearing judge after the PH judge exercised ex proprio motu her power to review a previous grant of a section 275 application under section 275(9) and the appellant appealed against the decision. It was submitted on behalf of the appellant that the PH judge should not have exercised her power to review under section 275(9) and the case of JW v HMA 2022 JC 1 outlined the circumstances where the court could review the earlier decision, namely,  where there was a prospect of the admission of clearly irrelevant or inadmissible evidence. It was further submitted that the relevance of previous convictions for offences of dishonesty to impugn a complainer’s credibility was well established with reference made to Cairney v HMA 2020 JC 110 where the court held that the convictions inferring dishonesty were relevant to credibility and would have met the test under section 275. On behalf of the Crown it was submitted that under section 259(9) the court had a continuing responsibility to ensure that irrelevant or collateral evidence, or evidence prohibited by section 274, was not admitted and the PH judge was correct to review the earlier grant of the application. It was further submitted that the evidence of the complainer’s previous convictions was irrelevant at common law because it did not have a direct bearing on whether the complainer consented to sex with the appellant on the date libelled and even if there was a degree of relevance the admission of the evidence raised collateral matters rendering the evidence as inadmissible on grounds of expediency. Further, the evidence was so remote from the events relating to the indictment it could not be said to have significant probative value, and would be inconsistent with protecting the complainer’s dignity and privacy and then evidence could not meet the test in section 275(1)(c). Here the court refused the appeal. In relation to the issue of whether the judge had properly applied the power of review under section 275(9) the court considered whether the evidence was admissible at common law and whether it met the test under section 275. The court did not accept the contention advance on behalf of the appellant that every previous conviction for dishonesty will always be admissible as bearing on the credibility of evidence given by the complainer. The court noted that Cairney considered that the age and level of seriousness of the convictions might be a relevant factor in deciding whether they should be admitted. As such the court considered that the second PH judge was right to consider whether the threshold of relevance had been crossed in the present case and, given the convictions were minor in nature occurring around 17 years before, it was difficult to identify how they could have any bearing on whether the admitted conduct referred to in the charges occurred without the complainer’s consent and the court considered that the second PH judge was correct to consider them irrelevant at common law. In addition, the admission would likely result in an inquiry into collateral matters as the Crown would be entitled to lead evidence to rebut the defence contention that the previous convictions impacted upon the complainer’s credibility.