R.G. v. Her Majesty’s Advocate [2019] HCJAC 18

Appeal under section 74 of the Criminal Procedure (Scotland) Act 1995:- Here the appellant appealed against the refusal by the sheriff to grant part of a section 275 application. The application was granted with the exception of the following paragraph:- "Evidence that on the occasion referred to in Charge 6 in the indictment, [the complainer] attended, by prior arrangement, at the applicant's father's flat ... together with the applicant's then girlfriend ... That shortly before engaging in the sexual activity referred to in Charge 6, [the complainer] engaged in consensual oral sex with a person known as [AB] in the presence of the applicant and [his girlfriend], and thereafter had consensual sexual intercourse with the said [AB] whilst the applicant and [his girlfriend] were in a neighbouring room." The sheriff refused that part of the application having regard to what was said in LL v HMA 2018 JC 182 and held that the evidence sought to be admitted was irrelevant and inadmissible at common law. Here it was submitted on behalf of the appellant that the evidence sought to be admitted was not collateral, formed part of the res gestae and was instructive as to the appellant’s reasonable belief as to the age of the complainer. The court refused the appeal and described the submissions as “wholly unsound and misconceived”. The court went on to comment on the fact that the sheriff, despite having considered that the evidence sought to be admitted did not pass the first stage of the test, namely, that it was collateral, irrelevant and inadmissible at common law, went on to consider the provisions of section 274 and 275 of the 1995 Act. The court reiterated that where the evidence sought to be admitted is deemed to be inadmissible at common law, that is an end to the matter and no further question arises. It is only in circumstances where the evidence passes the first stage of being admissible at common law that the statutory regime under sections 274 and 275 of the 1995 come under consideration.