S.J. v. Her Majesty’s Advocate [2020] HCJAC 18

Appeal under section 74 of the Criminal Procedure (Scotland) Act 1995:- The appellant has been indicted to the High Court on three charges:- (1) a charge of sexual assault against JM contrary to section 3 of the Sexual Offences (Scotland) Act 2009; (2) a charge of the rape of JM contrary to section 1 of 2009 Act; and (3) a charge of attempting to pervert the course of justice by disposing of his mobile phone in order to prevent police officers from gaining access to information contained on it, which he knew or suspected might be of relevance to their investigation. Here the appellant appealed against the decision of the Preliminary Hearing judge to refuse an application made on the appellant’s behalf in terms of section 275 of the Criminal Procedure (Scotland) Act 1995. Charges 1 and 2 are alleged to have taken place at JM’s on 11/12 January 2019. Charge 3 is alleged to have taken place on 12 January. The appellant has lodged a special defence of consent in relation to charges 1 and 2. Paragraphs 1(a) and (c) of the application, refused at the Preliminary Hearing, were amended by the time of the appeal due to further information being available. The terms of the amended application were as follows:- “1(a) On 1 January 2019, the complainer and the accused left the complainer’s home address and went to a hotel. While there, the complainer and accused were kissing and cuddling in the reception area. Thereafter they were driven by crown witness DL to the complainer’s mother’s house. During the taxi journey, they were kissing and cuddling ... [and] … 1(c) On 13 January 2019 the complainer was examined by a Forensic Medical Examiner following her complaint of rape by the accused. She was asked a series of questions relevant to the investigation and examination and in response to one of those she gave a false answer.” On behalf of the appellant it was accepted that evidence of sexual contact between the appellant and the complainer on 1 January would not be relevant in determining whether consent was present during the events of 11/12 January, however, it was important for the jury to have a full understanding of the build-up to the events of 11 January and to understand that the complainer and the appellant were not just two people who knew each other and the evidence would allow a different interpretation of the circumstances. In relation to paragraph 1(c) it was submitted that it would be relevant to the jury’s assessment of the complainer’s credibility to know that she told a lie to the FME on a matter which the examiner thought to be of relevance to the investigation. On behalf of the Crown it was submitted that the evidence specified in paragraphs 1(a) and 1(c) did not pass the common law test of relevancy. Here the court refused the appeal. In relation to paragraph 1(a) Lord Turnbull states at paragraphs 62 and 63:- “In my opinion, in order to seek to admit the evidence identified in paragraph 1(a), the appellant required to engage in an artificial attempt to construct a distinction between, leading evidence of a prior sexual encounter for the purpose of casting doubt on the complainer’s evidence as to absence of consent, and, leading evidence of a prior sexual encounter for the purpose of a proper appreciation of how well the two knew each other. In the absence of any articulated reason for establishing the latter in this fashion there is no valid distinction. [63] In my opinion, the proposed evidence does not meet the test of relevancy…” Lord Malcolm, in delivering the opinion of the court, came to the same decision in relation to paragraph 1(a) albeit on a different basis that the question should be determined under and in terms of section 275(1)(c), namely, whether “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 arising from its being admitted or elicited”. Lord Turnbull stated that in the particular circumstances of the present case he could not see how evidence of what took place between the appellant and the complainer 11 days prior to the alleged conduct could provide evidence of the true nature of their relationship and pass the common law test of relevance and describes such evidence as “an almost classic example of a collateral issue.” In relation to paragraph 1(c) the evidence referred to was described as entirely irrelevant and, similarly, did not pass the common law test of relevance.