Kevin Oliver v. Her Majesty’s Advocate [2019] HCJAC 93

Appeal under section 74 of the Criminal Procedure (Scotland) Act 1995:- The appellant was indicted to a Preliminary Hearing at the High Court on 6 charges relating to two complainers (charges 1 and 2 re KK and charges 3-6 re JC):- (1) a contravention of section 2 of the Sexual Offences (Scotland) Act 2009 and sexual assault against the complainer KK on 3 September 2017; (2) assault on KK on 4 September 2017; (3) contravention of section 39(1) of the Criminal Justice and Licensing (Scotland) Act 2010 between 1 October 2017 and 2 June 2018 and between 4 September 2018 and 27 October 2018 by sending abusive and threatening messages and indecent images to JC via text and social media, posting intimate photographs of her on Facebook, sending messages to her children, taking her mobile telephone and examining it, hiding her keys, locking her out of her house, attending at her house uninvited, pressing her door buzzer, shouting at her, throwing stones at the window of her house and maliciously damaging her car; (4) assault on JC between the same dates by calling her abusive names, threatening to strip her naked and put her outside, recording the appellant’s behaviour on a mobile telephone, pinning her to the floor, seizing her by the neck and pinning her against a wall, kicking her, pushing her downstairs, slapping her, spitting on her and head-butting her, all to her injury ; (5) assault, rape and attempted murder of JC  on 28 October 2018; and (6) contravention of section 39(1) of the Criminal Justice and Licensing (Scotland) Act 2010 against JC between 29 October and 4 December 2018 by sending letters to her and telephoning her. It is the appellant’s position that the events referred to in charges 1 and 2 did not happen; in relation to charges 3 and 5 a special defence of consent was lodged; and in relation to charges 4 and 5 a special defence of self-defence was lodged. In relation to the complainer JC, the appellant’s position is that throughout the period libelled they were engaged in a consensual sexual relationship which involved extreme forms of sadomasochistic behaviour in which they engaged consensually in acts of violence, abuse and demeaning behaviour towards each other. At the Preliminary Hearing on 11 and 12 April 2019 two section 275 applications were argued. In relation to the applications the Preliminary Hearing judge granted parts of each application and refused or restricted other parts. Here the appellant appealed against the decision to refuse and restrict the applications and leave to appeal was granted. The application in relation to charges 1 and 2 included 3 parts, the Preliminary Hearing judge granted paragraph 1(a) in restricted terms deleting the words “during which time they repeatedly engaged in consensual vaginal sexual intercourse”, granted paragraph 1(b) in full and refused paragraph 1(c) in its entirety.  Here it was submitted on behalf of the appellant that the credibility of the complainer KK was the central issue in relation to charges 1 and 2 and the material which was sought to be admitted or elicited in paragraph 1(a) was that KK chose to stay with the appellant in his flat immediately following the events libelled between 3 and 5 September 2017 and that during this time they engaged in sexual intercourse which, it was submitted, cast doubt on her credibility. On behalf of the Crown it was submitted that the relevance or significance of the evidence sought to be led was not as great as it might first appear given the context of their violent relationship and her staying at the flat in the aftermath of charge 1 did not necessarily reflect negatively on her credibility. Here the court considered that the evidence sought to be elicited was different in character to a complainer consenting to sexual activity prior to events libelled which would rarely be relevant. The court considered, where in the immediate aftermath of an allegation there is such activity, that may have a bearing on the credibility of a complainer. The court considered that questioning confined to the immediate aftermath meets the test of relevancy that the probative value of the evidence sought to be admitted or elicited is significant and is likely to outweigh any risk of prejudice to the proper administration of justice and that the material meets the tests contained in
section 275(1). In relation to paragraph 1(a) the application was only meant to relate to events after charge 1 on 3 September 2017 and the court replaced the words deleted by the Preliminary Hearing judge with:- “and engaged in consensual vaginal sexual intercourse after the events alleged to have taken place in charge 1 of the indictment.” Paragraph 1(b) had already been granted at the Preliminary Hearing. Paragraph 1(c) had been refused and it was submitted here on behalf of the appellant that by KK , after charges 1 and 2, to allow him to photograph her in a sexually suggestive pose cast doubt on the credibility of the complainer regarding the events in charges 1 and 2. On behalf of the Crown it was submitted that the material was irrelevant because it had no direct bearing on the charges libelled as it occurred 8-16 weeks later. The court agreed with the Crown submission that the material sought to be led did not meet the test of relevancy. In relation to JC there were seven paragraphs, one of which was refused in hoc statu, pending the recovery of text messages and two paragraphs were granted. The four remaining paragraphs were refused/restricted and leave to appeal was granted in relation to them. It was submitted on behalf of the appellant that where the Preliminary Hearing judge had refused/restricted the applications she was in error as they were both relevant and met the tests in section 275(1) of the 1995 Act. Part of paragraph 1(a) had been allowed including that JC and the appellant were involved in a sexual relationship between September 2017 and 28 June 2018 and that between March 2018 and 28 October 2018 the complainer visited the applicant at his home and invited the applicant to stay with her in her home in order to pursue their relationship. Part of 1(a) relating to the detail as to how the complainer conducted a clandestine relationship with the appellant was considered irrelevant. It was submitted here on behalf of the appellant that the existence of the complainer maintaining her marital relationship simultaneously with her clandestine affair with the appellant was of significance and a relevant challenge to her credibility in that had the sexual activity not been consensual the complainer could have brought her relationship with the appellant to a close immediately. On behalf of the Crown it was submitted that the evidence sought to be led amounted to bad character evidence. The court agreed with the Crown position that the evidence was of dubious relevancy and had the capacity to embarrass the complainer and amount to an intrusion of her privacy. The court did, however, allow the insertion of the following into paragraph 1(a):- “The complainer was married and lived with her husband until the end of March 2018.” In relation to paragraph 1(b) evidence of what sexual activities the appellant and the complainer engaged in was sought to be admitted. The Preliminary Hearing judge had allowed questioning as to the parties having engaged in sadomasochism and bondage, however, refused a number of matters which covered in detail consensual sexual activities on prior occasions. It was submitted on behalf of the appellant that the absence of questioning about the deleted items there was a risk that the jury would consider the terms of charge 5 as so shocking and bizarre that they were beyond anything to which the complainer might consent. The court largely agreed with the decision of the Preliminary Hearing judge that the sexual behaviour on prior occasions was of doubtful relevance. The court allowed the reinstatement of:- “which involved whipping, slapping, choking and referring to her in insulting and demeaning terms” which had previously been refused. Paragraph 1(d) related to consensual sexual activities engaged in by the appellant and the complainer on the day before the events of charge 5. The Preliminary Hearing judge had restricted the application to allowing questioning that as a consequence of engaging in consensual sexual activity the complainer was left with bruising to her buttocks, her neck, legs and shoulders which she covered up with makeup which was allowed to enable the defence to lead evidence of possible alternative explanations for injuries to the complainer. It was submitted on behalf of the appellant that the extreme character of the behaviour in which the appellant and the complainer consensually engaged and exclusion of it would prevent the appellant from advancing this defence. The court agreed with the Preliminary Hearing judge that the evidence sought to be admitted related to an occasion prior to that libelled in charge 5 and that the probative value of the evidence sought to be admitted or elicited was likely to outweigh any risk of prejudice to the proper administration of justice. Paragraph 1(e) related to what the complainer is alleged to have said to the appellant in the course of a train journey the day before the events libelled in charge 5. This had been refused by the Preliminary Hearing judge as collateral. She did allow that paragraph to include:- “... the complainer told the applicant that ... she wanted to engage in anal intercourse with him outside later on that evening”. It was submitted on behalf of the appellant that the restricted paragraph would prevent the context of the appellant’s position being put and a misleading picture would be left. The complainer had told the police that he was embarrassed and upset by the appellant repeatedly mentioning anal sex and touching her on this train journey whereas it was the appellant’s position that the complainer had mentioned anal sex repeatedly during the course of the journey. The court agreed with the Preliminary Hearing judge that the evidence sought to be led was collateral and irrelevant and, in any event, the probative value of it was limited and would not outweigh the protection of the complainer’s dignity and privacy.