XY v. Her Majesty’s Advocate [2022] HCJAC 2

Description

Appeal following refusal of section 275 application:- The appellant was indicted to a Preliminary Hearing at the High Court of Justiciary at Glasgow on eight charges alleging sexual offences committed against a number of complainers in the 1980s and 1990s. The appellant lodged a section 275 application which was considered at a continued preliminary hearing on 3 August 2020. The preliminary hearing judge refused the appellant’s application. The appellant appealed against that decision. The relevant charges for the purposes of this appeal which the appellant was indicted on were charges 1 and 2, namely, a statutory charge of lewd, indecent and libidinous practices and behaviour towards AA contrary to section 5 of the Sexual Offences (Scotland) Act 1976 and a charge of rape of AA. Charges 1 and 2 related to alleged conduct against AA over a period when she was aged 13 to the day before she turned 16. The section 275 application lodged on behalf of the appellant sought permission to ask questions and lead evidence to show that the appellant was in a consensual sexual relationship with AA between 14 April 1985 and 30 November 1985 when she was 17. The application contended that the evidence sought to be elicited was relevant to the credibility and reliability of the complainer’s evidence and to the appellant’s defence. The preliminary hearing judge refused the appellant’s application taking the view that the evidence sought to be elicited was irrelevant under the common law, as such, sections 274 and 275 of the 1995 Act were not engaged. On behalf of the appellant it was submitted that the preliminary hearing judge had erred in regarding the evidence sought to be led as irrelevant at common law as the purpose of the evidence was to allow the appellant’s defence to be fully presented and it could not be said to be collateral as it was the appellant’s position that he had consensual sexual relations with the complainer when she was over 16 and not underage. It was submitted that proof of when the sexual activity between the appellant and the complainer were critical in the circumstances of the case. Here the court, by majority, refused the appeal. The court reiterated that evidence must have a reasonably direct bearing on the subject matter of the prosecution and collateral evidence is excluded. The court stated that, contrary to the submission made on behalf of the appellant, the evidence concerned was not instantly verifiable, it being the complainer’s position, when precognosed in relation to the contents of the s275 application, that she was not in a consensual sexual relationship with the appellant when she was aged 17. The court took the view that evidence of whether the appellant and the complainer were involved in consensual sexual activity when she was 17 was irrelevant in relation to whether the Crown could establish that the appellant sexually abused the complainer when she was aged 13 to 16 years of age and was responsible for committing charges 1 and 2. In addition, the court noted that there was more to the case than simply whether sexual activity took place before or after a particular date as the alleged conduct went beyond the admitted sexual activity referred to in the section 275 application. In the circumstances the court affirmed the decision of the preliminary hearing judge that the evidence was collateral and the provisions of sections 274 and 275 were not engaged. The dissenting opinion posed the question that “if an accused person accepts that sexual activity as described in an indictment occurred but at a later date when the complainer was of age, is such a line of defence to be allowed?” The dissenting opinion considered that, whilst the present case was more complicated than the example posed in the question, where the date of an alleged offence is critical to criminality, evidence in relation to that issue is admissible and the appellant ought to be allowed to present his defence which he would be hampered in doing by refusing the application.