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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> C.J.M. v. HER MAJESTY'S ADVOCATE [2013] ScotHC HCJAC_22 (14 February 2013)
URL: http://www.bailii.org/scot/cases/ScotHC/2013/2013HCJAC22.html
Cite as: 2013 SCL 361, [2013] ScotHC HCJAC_22, 2013 GWD 8-170, [2013] HCJAC 22, 2013 SCCR 215, 2013 SLT 380

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APPEAL COURT, HIGH COURT OF JUSTICIARY

 

Lord Justice Clerk

Lord Clarke

Lord Menzies

Lord Brodie

Lady Cosgrove

 

 

[2013] HCJAC 22

Appeal No: XC159/11

 

OPINION OF LORD CARLOWAY,

the LORD JUSTICE CLERK

 

in the

 

APPEAL AGAINST CONVICTION

 

by

 

CJM (No 2)

Appellant;

against

 

HER MAJESTY'S ADVOCATE

 

Respondent:

_______

 

Act: K Stewart, QC, Crowe; John Pryde & Co SSC (for Michael S Allan, Aberdeen)

Alt: Wade, AD; the Crown Agent

 

14 February 2013

Background
[1] This Opinion follows upon that of the court dated 1 June 2012 ([2012] HCJAC 83) and relative interlocutor, remitting the appeal to a bench of five judges. Although the scope of the remit does not appear to have been defined, despite the precise terms of that interlocutor, in general terms it was taken to be the consideration and determination of the admissibility of evidence tending to show that an alleged victim of sexual assault had made a false allegation of sexual assault on another occasion.

[2] The appellant was convicted of four charges at Inverness High Court on 28 January 2011. The first two charges involved, respectively, an assault upon, and lewd, indecent and libidinous practices and behaviour towards, a girl, namely AB, then aged between 5 and 8, in the years 1991 to 1995 at an address in Buckie. The jury found that the appellant had sexually abused her at her home. The most serious episodes involved the appellant inducing her to perform oral sex upon him and pushing his private member against her private parts. The third charge found proved was that on two occasions, between 1990 and 1992, at the same and at another address in Buckie, the appellant had indecently assaulted the sister of AB, who was then aged between 12 and 14, by handling her breasts.

[3] The present appeal is principally concerned, however, with the fourth charge. The complainer, namely CD, is a relative of the appellant and the parts of the libel, which the jury accepted, involved the appellant regularly indecently assaulting her in the years 1994 to 1998, when she was aged between 6 and 10. The locus was the home of the complainer's grandparents in Buckie. The episodes commenced with the appellant rubbing the complainer's thigh, leg and private parts under her clothes and progressed to episodes during which he would insert his finger into her private parts. He induced the appellant to handle his private member and to perform oral sex upon him. The complainer made no report of these matters until 2008, when she had reluctantly given a "full statement" to the police. There was undisputed evidence that the complainer had had significant problems during her life. From 1997 to 2004 she, and AB, had been involved with social work services, medical and other health professionals and had required references to a child psychiatrist.

 

Section 275 Application
[4] In advance of the trial, the appellant made an application under section 275(1) of the Criminal Procedure (Scotland) Act 1995 seeking permission to adduce evidence, and to allow questioning, on a number of matters, including the following:

"(c) In September 2006 [CD] made an allegation that she and a female friend had been abducted by a male in a car and driven to a wooded area. There, forceful sexual demands were made of them which included performing sex on each other and on him. After a full police enquiry, there existed evidence that refuted the allegation. [CD] was interviewed and finally admitted fabricating the complaint. She was charged with wasting police time".

 

The details had been provided to the defence by the local procurator fiscal, in terms of a letter dated 18 October 2010.

[5] The incident had involved CD and another girl presenting themselves at the door of a house in the country in an apparently distressed state. They had complained to the occupant that a male, from whom they had accepted a lift, had driven them to a wooded area against their will and there asked them, for payment, to perform sexual acts on one another and on him. The occupant had driven the girls home, but, on the following day, she had telephoned the police enquiring after their welfare. No complaint had been made by the girls to the police. They were, nevertheless, traced and interviewed separately. CD gave an account, which was similar to that reported to the occupant. She stated that she wished to make a formal complaint and a police enquiry was instituted. The other girl refuted the version given by CD and stated that both she and CD had previously prostituted themselves to the male in question. No abduction had taken place. Rather, they had willingly accompanied the male to a wooded area intending to prostitute themselves to him again. They had not, however, done so. Two days later, CD had been interviewed under caution and, according to the procurator fiscal:

"During the subsequent taped interview under caution ... [CD] readily admitted to having fabricated those aspects of her evidence relating to her allegation of abduction and the unsolicited nature of the sexual demands made by the male, although other aspects were found to be factual".

 

CD was subsequently cautioned and charged, presumably with wasting police time, but no prosecution was instituted.

[6] In a remarkably brief report from the judge at first instance, who refused this part of the section 275 application on 6 January 2011, it is stated that the basis for refusal was "for the reasons outlined by the advocate depute". These reasons, as minuted, were that:

"This is collateral and inadmissible at common law. In any event it is not a relevant issue for the jury. The matter is removed in time and character to the charges on the indictment".

 

[7] In the course of the trial, which commenced less than three weeks later, the appellant attempted to re-raise the issue at the completion of the complainer's evidence-in-chief. Although both the reasons and the statutory basis for doing so are obscure, the matter seems to have arisen as a result of the complainer testifying that she had not been "raped" by the appellant, notwithstanding the allegation to that effect then included in the libel. The advocate depute had put to her an apparently contrary position, as recorded in a police notebook, to the effect that she had used the word "rape", when speaking about the abuse perpetrated upon her by the appellant. The complainer had explained that she would have used that word to describe any sexual activity carried out against her will. She had said that she may have used it at the stage of speaking to the police. The application was again refused, on the basis that no special cause (1995 Act s 275B(1)) had been advanced for presenting it in the course of the trial.

[8] The trial judge went on to state that he would not, in any event, have been inclined to grant the application. There were no witnesses present to speak to the matters averred in the application, other than the complainer herself. The trial judge regarded, as persuasive, arguments that the issue was collateral, having regard to the time and circumstances of the charge. He considered that there was a real risk that the jury's attention would have been deflected from the specific allegations before them and that the complainer's dignity and privacy would also have been seriously invaded (s 275(1)(c), (2)(b)). It was not clear, from the procurator fiscal's letter, what the complainer had accepted had not been true and what had been found "to be factual". Were the matter to be explored in evidence, the background circumstances, including the complainer's relationship with the male in question, would require to be examined.

 

Note of appeal and submissions

Appellant
[9] The ground of appeal, so far as relevant, is in the following terms:

"(e) It is submitted that evidence sought to be admitted relating to the aforesaid false accusation to the police was admissible at common law. Whilst a collateral issue, in the interests of justice, this evidence should have been before the jury to allow a balanced assessment to be made of the said complainer's credibility and reliability. This was not a collateral issue that would have taken up a great amount of court time or distracted the jury as the facts were well settled. The three cumulative tests set out in section 275(1) were met. The false allegation contained the considered and detailed untruths as opposed to it being a 'spontaneous impetuous outburst' which would be inadmissible (Cassells v HMA 2006 SCCR 327)".

 

[10] It was accepted that, when considering a section 275 application, it was necessary for the court to determine at the outset whether the evidence proposed to be adduced was admissible at common law. If it was not admissible at common law, for example because it concerned a collateral issue, then section 275 could not render it admissible, since the provision was designed to restrict evidence and not to remove common law prohibitions.

[11] The general rule at common law was that evidence of character was inadmissible as collateral. This rule was based on expediency. It was considered inexpedient to admit evidence of a collateral fact because, while it was perhaps not wholly irrelevant, it had only an indirect bearing on the matter before the jury. The evidence would take up a great amount of court time and risk confusing the jury, by distracting them from the true issue (Walker and Walker: Evidence (2nd ed) para 7.1.1; A v B (1895) 22 R 402, LP (Robertson) at 404).

[12] Sections 274 and 275 were intended both to protect a complainer, in so far as this was possible, from embarrassing and often demeaning questioning and to reduce the risk of prejudice against a complainer being created in the mind of the jury. They were introduced to dispel the "twin myths" that, first, "unchaste women" were more likely to consent to intercourse and, second, that such women were "less worthy of belief" (R v Seaboyer (1991) 83 DLR (4th) 193, McLachlin J at 258). The current form of the sections had followed the consultation document "Redressing the Balance" which had resulted in the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002. This had substituted new provisions for earlier versions which had been perceived to have failed in their operational intention. The substituted provisions had been deemed compatible with the right to a fair trial under Article 6 of the European Convention (Moir v HM Advocate (No. 1) 2005 JC 102, LJC (Gill) at para 37). The fair trial right required that, in appropriate cases, the interests of the defence were to be balanced against those of witnesses or victims called upon to testify (Doorson v Netherlands [1996] 22 EHRR 330 at para 70; see also SN v Sweden 2 July 2002, unreported, no 34209196).

[13] Section 274 excluded four categories of evidence notably, evidence that a complainer is not of good character (whether in relation to sexual matters or otherwise), evidence of the complainer's prior sexual behaviour, of conduct by the complainer affecting credibility and reliability, and of any "condition or predisposition" to which the complainer may have been subject as might found an adverse inference as to the complainer's credibility or reliability. There was a preliminary question of whether the complaint made by CD fell within the definition of "sexual behaviour" in section 274(1)(b). It did not, as it was a previous statement made by her rather than behaviour (DS v HM Advocate 2007 SC (PC) 1; cf Moir v HM Advocate (supra)) and this would not "intrude upon her dignity and privacy" (DS (supra), Lord Hope at paras 45-46; see also Judge v HM Advocate 2010 SCCR 134). The "behaviour" of the complainer, which the appellant sought to introduce, was not sexual behaviour per se, but behaviour comprising a statement that involved a fictitious allegation, albeit containing lies about sexual behaviour, made to the police.

[14] The crux of the submission was the definition of "condition or predisposition" in sections 274(1)(d) and 275(1)(a)(ii) of the 1995 Act. Section 275(1) created a structured three-stage cumulative test for permitting questioning about sexual history or character. First, the questioning had to relate to a specific occurrence, or occurrences, of behaviour. The appellant was attempting to prove that the complainer suffered from a "condition" or "predisposition". This did not have to be a medical condition (HM Advocate v Ronald (No. 1) 2007 SCCR 451; cf Moir v HM Advocate (No 2) (supra), Lord Johnston at para [32], Lord Marnoch at para [44]; Mackay v HM Advocate 2005 JC 24 and Cassells v HM Advocate (supra)). An analogy with diminished responsibility in homicide was appropriate (see Galbraith v HM Advocate 2001 SCCR 551). The appellant had been in a position to demonstrate that the complainer had told lies. This was not a matter of dispute with the Crown. It could have been dealt with by joint minute. There would have been no need to call police witnesses (cf Thomson v HM Advocate 2001 SCCR 1662 at para [11]; Judge v HM Advocate (supra); Dunnigan v HM Advocate 2006 SCCR 398).

[15] In Ronald (No 1) (supra) it had been held that psychiatric evidence of a disorder, a dependency syndrome or personality traits, which called into question a complainer's credibility or reliability, were "clearly relevant" (ibid (supra) at para [27]). If a predisposition did not require to be a recognised medical condition identified by relevant medical evidence, the detailed fictional allegation made by the complainer would have been capable of demonstrating that the complainer was predisposed to telling lies of a sexual nature (cf Cassells v HM Advocate (supra); see also HM Advocate v A 2005 SCCR 593, Lord Macphail at para [20]).

[16] Secondly, the evidence had to be "relevant" to whether the accused was guilty (s 275(1)(b)). This did not provide a gateway whereby evidence, which was not deemed relevant at common law, could now be admitted (Duff: "The Scottish 'Rape Shield': As Good as it Gets?" 2011 Edin LR 218).

[17] Thirdly, the probative value of the evidence had to be "significant" and outweigh "any risk of prejudice to the proper administration of justice" (section 275(1)(c)). This proviso departed from the normal function of the judge, which had previously been confined to determining relevancy. The test had not been judicially discussed in any detail. Research had indicated that judges had difficulty imagining circumstances in which they would rule out otherwise relevant evidence in order to protect a complainer. However, evidence of a complainer's predisposition was sufficiently significant to outweigh any risk of prejudice to the administration of justice (Ronald (No 1) (supra)). The "paramount consideration of ensuring a fair trial" (Ronald (No 1) (supra, at para [32])) meant that the defence should be allowed to explore the issue involving the complainer's false complaint, the withdrawal of which by the complainer was the crucial factor.

[18] The complainer was capable of making fictitious allegations of a sexual nature to police officers, which provoked a police investigation. Evidence of this should not have been disallowed on the narrow basis that such behaviour did not amount to a medical condition. Disallowing this line of questioning had resulted in the appellant's right to a fair trial being severely prejudiced. The jury was kept in ignorance of significant evidence that may have allowed them to draw a different conclusion about the complainer's credibility.

 

Respondent

[19] Section 275 of the 1995 Act could not render admissible that which was inadmissible at common law (Moir v HM Advocate (No 2)(supra), Lord Johnston at para [27]; HM Advocate v Ronald (supra) at para [7]; Thomson v HM Advocate 2010 SLT 981 at para [16]). At common law, evidence of the character of witnesses (including complainers), whether good or bad, was generally inadmissible because it was collateral to the facts in the libel (Walker & Walker: Evidence (3rd ed) para 7.1.1; G v HM Advocate 2010 SCL 1056 at para 90). It was inexpedient to allow evidence of the existence of a collateral fact because, whilst it may not be wholly irrelevant, it only had an indirect bearing on the matter before the jury. Leading evidence of it would take up a great deal of court time and risk confusing the jury by distracting them from the issue to be tried (HM Advocate v A 2005 SCCR 593 at para [20]; HM Advocate v Ronald (supra) at para [9]). It was not generally permissible at common law to lead evidence about prior false allegations of sexual assault (Moir v HM Advocate (No 2) (supra), Lord Johnston at para [26]). The prior allegations of rape in HM Advocate v Ronald (supra) were deemed admissible at common law because of their role in the subsequent psychiatric diagnosis (ibid para 17).

[20] The prior allegation of sexual assault in 2006 occurred at a time and in circumstances quite different from those in charge 4 and was collateral. It was not clear what the complainer had accepted had not been true about her previous complaint. If the matter had been raised, it would almost certainly have necessitated the investigation of the background circumstances and the relationship between the complainer and the male driver. This would have been inexpedient and distracted the jury from the principal issues (Thomson v HM Advocate (supra), at para [17]). There had been no expert evidence available in this case (cf HM Advocate v Ronald (No 2) (supra)). In these circumstances the judges at first instance had not erred in ruling the evidence inadmissible as collateral.

[21] If the evidence were admissible at common law, then it would be regulated by the provisions of sections 274 and 275 of the 1995 Act. There were three cumulative tests which required to be satisfied. In relation to the first of these (275(1)(a)), evidence of a "prior (allegedly) false allegation, in isolation" was unlikely to be admissible "given that it will rarely of itself demonstrate character or a condition or predisposition" (Walker & Walker (3rd ed) para 7.4; Cassells v HM Advocate 2006 SCCR 327). The words "condition" and "predisposition" in subsection 275(1)(a) were intended to refer to a recognised medical condition (Moir v HM Advocate (No 2), Lord Johnston at para [24]). In HM Advocate v Ronald (No 1) (supra) there had been expert evidence of such a condition or predisposition. The policy considerations behind section 274(1)(d) were that it was intended to cover medical evidence about a complainer, which did not relate directly to the libel (Sexual Offences (Procedure and Evidence) (Scotland) Bill, Policy Memorandum at para 21). The use of the same phrase in section 275(1)(a) was designed to allow questioning in relation to medical evidence demonstrating a condition or predisposition. There was no such medical evidence in this case.

[22] The introduction of sections 274 and 275 had followed widespread concern about the way complainers in rape trials were being treated (Report on Evidence in Cases of Rape and Other Sexual Offences, Scottish Law Commission 1983, para 4.1). The recommendations of the Scottish Law Commission had been brought into force in 1985. However, in 2000, the Scottish Executive had published the consultation document "Redressing the Balance: Cross-examination in Rape and Sexual Offence Trials", which canvassed ways in which the existing legislation could be strengthened. The result had been the current form of the statutory provisions. The basic objectives were to ensure that evidence of a complainer's sexual history and/or character was only admitted when it was relevant to the crime libelled and would not cloud the issues unnecessarily or cause undue prejudice and accordingly distort the judicial process ("Redressing the Balance", para 105). The proposition that any prior false allegation, no matter how far removed in time and circumstances, could indicate an underlying condition or predisposition to make complaints, ran contrary to the intention of Parliament. It would open up a complainer to the risk of having her sexual and medical history aired in public.

[23] In relation to the relevance of the previous complaint in terms of section 275(1)(b), the time and circumstances of that allegation were not comparable to those in the libel. Evidence about the prior allegation was therefore not relevant to establishing whether the appellant was guilty of the charge (Cassells v HM Advocate (supra)). Furthermore, in relation to the probative value of this evidence under section 275(1)(c), it was not significant and was likely to outweigh the risk of prejudice to the proper administration of justice, including the protection of the complainer's dignity and privacy.

[24] The first instance judges applied the correct test in law in refusing to admit the evidence of the prior allegedly false allegation. In doing so, they had acted within the bounds of their discretion and an appeal court should be reluctant to interfere with such decisions (Thomson v HM Advocate 2001 SCCR 162, Lord McEwan at para [16]; CWA v HM Advocate 2003 SCCR 154, LJC (Gill) at para [16]; Neil v HM Advocate, unreported, High Court of Justiciary, 20 October 2006, Lord Osborne, delivering the Opinion of the Court, at para [5]).

[25] Even if the evidence ought to have been admitted, there had been no miscarriage of justice. The appellant's defence had been that the complainer was lying. He had been able to put that defence to her in cross-examination and the complainer had been duly skilfully cross-examined on matters affecting her credibility. There was no real possibility that the verdict of the jury would have been any different if evidence of the prior allegation, made in completely different circumstances and at a different time, had been before them. The complainer had not been the instigator of the complaint in 2006. The basis of the falsity of the allegation had not been established. The complainer had been aged 17, whereas, at the time of the complaints relating to the present charge, she had been 21. There was a marked difference in maturity. The allegation in charge 4 related to the sexual abuse of a child between the ages of 6 and 12. The 2006 allegation had been in relation to a person with whom it was said that the complainer had prostituted herself. There was no physical act of a sexual nature in relation to the previous allegation, which was also quite different from that made relative to charge 4.

[26] The prior allegations could not have been dealt with by way of joint minute and an exploration of the full circumstances would have been required. There would still have had to have been a section 275 application. It would only have been once the circumstances surrounding the prior allegation had come out that the information might have been regarded as helpful. A number of witnesses would have been required. There are some cases where past allegations may be admissible (Gordon v HM Advocate 2010 SCCR 589 at paras [90], [91] and [93]). In this case, however, the matter was entirely collateral and irrelevant.

 

Decision
Common Law
[27] It is first necessary to categorise the nature of the evidence sought to be adduced. It is testimony that the complainer had made a false complaint that she had been abducted and asked to perform certain sexual acts. It is not that she had performed such acts. The only significance that such evidence could conceivably have, in the context of a trial of another person for sexual abuse of the complainer, is in connection with that report being false; that is to say, the complainer had previously told a lie about an incident which had a sexual element. As such, the evidence must be calculated to show that the complainer has been dishonest in the past and, the appellant would presumably argue, that she may therefore also be dishonest in relation to the charge involving him. It is thus evidence of "bad character" proposed to be introduced with the purpose of undermining the complainer's credibility.

[28] The starting point for a decision on whether this evidence is admissible is the general principle that evidence is only admissible if it is "relevant" (Dickson: Evidence (Grierson ed) i.1). Evidence is relevant when it either bears directly on a fact in issue (ie the libel) or does so indirectly because it relates to a fact which makes a fact in issue more or less probable (see generally Walker & Walker: Evidence (3rd ed) paras 1.3 - 1.5; DPP v Kilbourne [1973] AC 729, Lord Simon at 756; R v Kearley [1992] 2 AC 228, Lord Oliver at 263 citing Stephen: Digest of the Law of Evidence (12th ed) art 1; R v Watson (1996) 50 CLR (4th) 245). The determination of whether a fact is relevant depends very much upon its context and the degree of connection between what is sought to be proved, or disproved, and the facts libelled. It is a "matter of applying logic and experience to the circumstances of the particular case" (R v Graat [1982] 2 SCR 819, Dickson J at 835, quoted in McGrath: Evidence, para 1.06 fn 16). The question is one of degree; "the determining factor being whether the matters are, in a reasonable sense, pertinent and relevant and whether they have a reasonably direct bearing on the subject under investigation (Bark v Scott 1954 SC 72, LP (Cooper) at 75-6).

[29] What is sought to be admitted here is evidence that, at least on one view, has no direct or indirect connection with the facts in issue, but may conceivably affect the weight to be attached to testimony which does have direct relevance to the facts (see Phipson: Evidence (17th ed) para 7-04). There is no doubt that this type of evidence can be admissible in certain situations; but these situations are strictly regulated. The Scots law is reasonably clear. It differs from that under certain common law systems, which permit impeachment of the general character of a witness by the use, for example, of persons speaking to general credibility (cf Thomas and Peter Galloway (1836) 1 Swin 232). In Scots law, evidence of either good or bad character is, in general, inadmissible (Dickson (supra) at para 6; Hume: Commentaries i. 352-5; Alison: Practice 527) because it is collateral to the issues for decision as defined in the libel.

[30] Thus, in Jas Reid (1861) 4 Irv 124, Lord Ardmillan (at 127-8) considered that evidence of bad character, which was remote from the time of the rape charged, was of "collateral circumstances occurring a long time ago" and thus "quite inadmissible as having no immediate bearing - no pertinency or relevancy to the question at issue". Lord Neaves (at 129) deprecated the idea of "an enquiry into the whole latent life of the witness as a cruel and grievous evil". More generally, the Lord Justice Clerk (Inglis, at 129), although making reference to the then exception of proving recent immoral character in rape cases, stated the general rule to be that:

"you cannot raise up a collateral issue, and allow proof of a witness' character and repute".

 

[31] The reason for this rule is that:

"...it is better to sacrifice the aid which might be got from the more or less uncertain solution of collateral issues, than to spend a great amount of time, and confuse the jury with what, in the end, even supposing it to be certain, has only an indirect bearing on the matter in hand" (A v B (1895) 22 R 402, LP (Robertson) at 404 cited in Walker & Walker (supra) at para 7.1).

 

Following on from that, it has been said that:

"A certain alleged fact may be relevant in so far that, if established, it might help a fair mind to come to a certain conclusion. Nevertheless, it may fall to be excluded if its ascertainment raises a separate issue from that which is being tried. The alleged fact if put in cross and admitted may be relevant, but nevertheless it may be of a kind which cannot otherwise be proved, for, if it is disputed, it would require to be tried as carefully as the issue before the Court, and the allowance of such collateral inquiries would make proofs endless" (Moorov v HM Advocate 1930 JC 68, Lord Sands at 87).

 

Dealing with the issue from a pragmatic angle, the court has said:

"[It is] well settled - not perhaps on grounds of strict relevancy as on grounds of convenience and expediency that 'collateral issues' will not be allowed to be investigated" (Swan v Bowie 1948 SC 46, LP (Cooper) at 51).

 

More recently, the rule and its justification have been phrased as follows:

"The general rule is that it is not admissible to lead evidence on collateral matters in a criminal trial. Various justifications have been put forward for this rule. The existence of a collateral fact does not render more probable the existence of the fact in issue; at best a collateral matter can have only an indirect bearing on the matter in issue; a jury may become confused by having to consider collateral matters and may have their attention diverted from the true matter in issue. Whatever the justification for it, the general rule is clear" (Brady v HM Advocate 1986 JC 68, LJC (Ross) at 73).

 

[32] It is not, therefore, simply a matter of the judge at first instance determining "fairness" or "justice" in an individual case, but of applying the well tried and tested rule which exists for pragmatic reasons in connection with the administration of justice generally and for the protection of witnesses, notably complainers, who cannot be expected to anticipate, and defend themselves against, personal attack. There are recognised exceptions to the rule in criminal cases in situations where the collateral fact can be demonstrated more or less instantly and cannot be challenged. Thus the dishonesty of a witness can be proved, but only by reference to established fact in the form of a previous conviction (see Walker and Walker (supra) para 7.7.1). The exception (see eg Macdonald: Criminal Law (5th ed) 309), whereby an accused in an assault case can prove the quarrelsome disposition of his alleged victim (where self defence or provocation is in issue), but not specific acts of violence (at least without a previous conviction), is perhaps less easy to explain (cf HM Advocate v Kay 1970 JC 68, Lord Wheatley at 69; ccf Brady v HM Advocate 1986 JC 68, LJC (Ross) at 74). However, in relation to the present case, the principle behind the exception of allowing instantly verifiable material must be capable of being extended to admit evidence of recent convictions for wasting police time or similar crime, when the complainer has made false reports in relation to events similar to that charged on the indictment. This is what might be regarded as a variant of "'reverse similar fact reasoning', ie ... the disposition of a witness to behave in a way strikingly similar to the way in which he or she was now alleged to have behaved" (Phipson (supra) para 22-04).

[33] The problem which arises in the present case is that there is no conviction for wasting police time. There was no prosecution and even the reasons for that are not clear. The existence of a charge cannot be regarded as determinative of the facts in it (see Gordon v HM Advocate 2010 SCCR 589, Lord Carloway, delivering the Opinion of the Court, at paras [90] - [92]). All that is known is that the allegation was that the complainer and her friend had arrived at the house of a stranger complaining of having been being abducted and asked to perform certain sexual acts. The complainer is said to have repeated this account when interviewed by the police, but her friend did not. The complainer later retracted parts of her account but not others.

[34] The objections to allowing this type of material to be introduced, in the context of the trial of entirely different events involving a different accused, are substantial. First, the incident was not linked in time, circumstances or place to the charge in the libel. The former is an account whereby in 2006 the complainer, then aged about 17, was abducted with a friend in a car by a male person who asked them to perform certain sexual acts, which they did not do. The complainer made a complaint at or about the time; albeit at the prompting of the police. This is in contrast to the allegations in charge 4, which involve the repeated sexual abuse of the complainer during the years 1994 to 1996 in a domestic setting by a relative when she was aged between 6 and 10. The two matters appear to be quite separate in nature and, on this ground alone, the court considers that evidence of the 2006 incident ought to have been excluded as collateral at common law.

[35] The second objection is that permitting an exploration of the 2006 episode could have resulted in a prolonged "trial within a trial" involving an attempt to ascertain whether, and to what extent, the episode with the man in the car did happen. It is clear that the complainer did not retract the whole of her account. Even if she did retract parts of it, that is not to say that these parts did not happen. In short, for reasons of expediency, this is, once more, a collateral matter which is excluded from consideration by the common law. Its introduction would have been apt to confuse and distract the jury from a proper consideration of the evidence bearing upon the charge in the libel. It follows that sections 274 and 275 need not have been considered by the trial judge since this evidence was inadmissible at common law. In this respect, the original decision of the judge at first instance was correct and the appeal against it must be refused.

[36] Before leaving the common law, however, it is convenient to notice the rules concerning the admission of evidence that a witness suffers from some form of condition affecting his credibility. The appellant sought to categorise the allegedly false report of 2006 as proof of a condition or predisposition in terms of sections 274(1) (d) and 275(1)(a)(ii). The meaning of the phrase "condition or predisposition" will be considered later. However, in order to understand it, it is important to grasp the import of the common law in this particular area. A useful starting point is the first instance decision in HM Advocate v Grimmond 2002 SLT 509, which predated the introduction of the substitute sections. In Grimmond, the trial judge (Lord Osborne) refused to allow the Crown to introduce rebuttal evidence from a psychologist concerning the credibility and reliability of the complainers' accounts of abuse. In so doing, he founded upon the rule based on expediency outlined above, and, distinguishing Green v HM Advocate 1983 SCCR 42 on somewhat flimsy grounds other than the absence of proper argument, followed the English Court of Appeal in R v Turner [1975] 1 QB 834 (Lawton LJ at 842-3). However, the judge was at pains to point out that:

"It might be that, if it were established that a witness suffered from some form of mental illness which was relevant to a consideration of the quality of the evidence of that witness, psychiatric evidence concerning the implications of the illness of the witness might be admissible".

 

[37] It is critical to note that this statement of the common law in Grimmond (supra), (which was effectively reversed, in relation to the particular evidence to be led, by the new section 275C of the 1995 Act), was approved in McBrearty v HM Advocate 2004 JC 122 (LJC (Gill) at para [48]), where the trial had also pre-dated the substitute sections. The Lord Justice Clerk distinguished (at para [49]) the leading of evidence from a person that a witness was not likely to be telling the truth from adducing evidence from an expert that the person has an "objective medical condition" affecting credibility, such as proof that a person is a pathological liar. The other judges agreed with this distinction. This is consistent with the view, in the civil context, that "medical evidence concerning illness or abnormality affecting the mind of a witness and reducing his capacity to give reliable evidence may in appropriate cases be admissible" (McKinlay v British Steel Corporation 1988 SLT 810, LJC (Ross) at 813, citing R v Toohey [1965] AC 595). Thus, following this reasoning, evidence from teachers about a pupil's propensity to lie would not be admissible (Mackay v HM Advocate 2004 SCCR 478). On the other hand, expert psychiatric evidence that a witness had "'false memory syndrome' secondary to significant mental illness" (ie that her account was a symptom of that illness) would be admissible (HM Advocate v A 2005 SLT 975).

[38] Thus far, the law appears to be clear. As stated in McBrearty v HM Advocate (supra), if a witness has an "objective medical condition" bearing upon his credibility or reliability, then (and only then) can expert, commonly medical, evidence of that condition and its general effects be admissible at common law. However, the subsequent first instance decision in HM Advocate v Ronald (No 1) (supra) appears to throw some doubt upon this. It suggests that evidence from a doctor that, having regard not only to a complainer's proved psychiatric condition but also to her history of previous impulsive behaviour, entering into abusive relationships, reporting previous abuse and providing false information, "a degree of caution should be exercised in accepting" the complainer's evidence (see para [15]) as admissible.

[39] Evidence that a complainer suffers from an objectively diagnosed medical condition and that such a condition may, as a generality, have a bearing on a person's ability to know or tell the truth is admissible, but the matter stops there as a matter of expediency. What is not permissible is a public trawl through that person's life history in order to uncover and narrate episodes during which the witness has made particular false statements or questionable lifestyle decisions. In Ronald (No 1) therefore, while evidence that the complainer did suffer from certain psychiatric conditions (including alcohol dependency syndrome and a borderline personality disorder) would be admissible, if these had a potential to affect a person's ability to know or tell the truth, the remaining elements ought to have been excluded. They amounted to no more than the doctor's personal view on the particular complainer's credibility stemming from events in her life which the law deems inexpedient to explore. In this respect, this view differs from an expert opinion that a complainer is suffering from a particular objectively diagnosed condition and that, as a generality, such a condition can effect credibility or reliability in a recognised way.

[40] An analysis of previous unrelated impulsive behaviour, entering into so called abusive relationships and the reporting of previous abuse is not permissible. Were it permissible to examine these matters, and hence any material to the opposite effect, not only would the length of trials in many cases be extended considerably but also the jury would be unnecessarily distracted from the issue before them. The fact that a member of the medical profession is cited with the intention that he might narrate these events, as revealed to him in the hearsay reports of third parties or otherwise, before the jury, has no bearing on the basic inadmissibility of this type of material.

[41] Leaving aside the effects of an "objective medical condition", at common law matters of credibility and reliability fall to be decided upon a jury's view of the demeanour of the witnesses in court, the inherent likelihood of the truth or accuracy of their testimony and, often most important, how that testimony compares and contrasts with other evidence in the case which the jury find acceptable. In so far, therefore, as Ronald (No 1) appears to depart from the principle set forth by the Lord Justice Clerk in McBrearty v HM Advocate (supra), with which the other judges agreed, it must be disapproved.

 

Sections 274 and 275
[42] The intended interaction between sections 274 and 275 with the common law is not always altogether clear. Section 274 is headed "Restrictions on evidence relating to sexual offences", but it actually repeats much of what already exists in the common law. This is understandable in the context of a situation in which neither the common law rules nor the original terms of section 274 were being adequately enforced by the courts for the protection of complainers from irrelevant or inexpedient attacks on their character. Rather, the inclusion of an "interests of justice" exception to these terms had seen evidence being admitted, upon the basis of that exception, even when it ought to have been excluded at common law on the basis of expediency in the context of the administration of justice generally and the need to protect witnesses from attacks on their character which cannot reasonably be countered within the context of a criminal trial (see eg "Redressing the Balance" (supra) para 97). Furthermore, the lack of any mention of relevancy in the provisions exacerbated the matter (Sexual Offences (Procedure and Evidence) (Scotland) Bill, Policy Memorandum, para 18) and diverted attention from that core issue.

[43] The history of the statutory provisions has already been narrated in detail by the Lord Justice Clerk (Gill) in Moir v HM Advocate (No 1) 2005 JC 102 (at paras [6] to [18]) and consequently does not require further rehearsal. Suffice it to say, as the heading to section 274 (supra) makes clear, the provisions are intended to restrict the admissibility of evidence which would be permissible at common law. Thus, they are intended to, and do, sweep away the common law "specialities" in relation to sexual offences against women, which had been "introduced for obvious reasons" (Dickie v HM Advocate (1897) 24 R (J) 82 (LJC (Macdonald at 83)). These specialities permitted not only general attacks based upon a woman's "character for chastity" but also enquiry into the woman's "moral character" (ibid at 84) since, it was thought, a woman of bad moral character was less worthy of credit in relation to an act of sexual violence perpetrated against her than, presumably, one with an unblemished sexual past (see eg Jas Irving (1838) 2 Swin 109).

[44] However, the provisions did not restrict themselves to an abolition of those specialities, although, in the interests of simplicity, that might have been an option. Rather, they went on to introduce an elaborate code which allows the admission of evidence of character and similar matters within certain defined parameters. It is not unreasonable to comment that some courts, and prosecutors, appear to have found it difficult to balance the clear intent to restrict evidence in the wider interests of justice for all, and in particular complainers, with what they consider to be fair, looking primarily to the interests of the accused (see eg Cumming v HM Advocate 2003 SCCR 261; Kinnin v HM Advocate 2003 SCCR 295; Tant v HM Advocate 2003 SCCR 506; and generally Davidson: Evidence paras 10 - 72/73). Furthermore, despite clear dicta to the contrary (eg Thomson v HM Advocate 2010 JC 140, Lord Kingarth, delivering the Opinion of the Court, at para [16]; Moir v HM Advocate 2007 JC 131, Lord Johnston at para [27]), there remains a tendency amongst practitioners to regard section 275 as providing exceptions not only to the restrictions in section 274 but also to the common law rules on the expedient exclusion of collateral material.

[45] Under reference to DS v HM Advocate 2007 SC (PC) 1, the appellant raises a particular point about whether the complainer's allegedly false report amounts to sexual or other behaviour such as would be struck at by section 274. The court has little difficulty in holding that the making of a false report in relation to matters unconnected to the crime charged does constitute "behaviour" bearing upon a person's credibility and is thus struck at by section 274(1)(c). Lord Hope's remarks in DS (at para [46]) were designed to ensure that prior inconsistent statements about, or closely connected to, the incident forming the subject matter of the charge were not excluded by statutory provisions designed to eliminate a different mischief. The situation here is entirely different. Had the court considered that the evidence was not excluded at common law, it would have held that it was excluded by section 274, but subject therefore to the section 275 exceptions.

[46] The next question relates to what is meant by the words "condition or predisposition" in sections 274(1) (d) and 275(1)(a)(ii). The appellant, of course, founds heavily upon the decision at first instance in HM Advocate v Ronald (No 1) 2007 SCCR 451. However, the words have to be understood in light of the common law position that what is admissible is evidence of an "objective medical condition" (McBrearty v HM Advocate (supra)). It is clear, therefore, that to bring evidence within the exception in terms of section 275(1)(a)(ii), the "condition or predisposition" requires to be one which is objectively diagnosable in medical, notably psychiatric, terms. The exception cannot be applied in the absence of medical evidence to that effect. On any view, therefore, the appellant's application under section 275 could never have been allowed, since there was no such medical diagnosis. Had it been necessary to determine this matter, the appeal would also have failed on this basis. Furthermore, having regard to the lack of any connection in time, character or circumstances between charge 4 and the events reported in 2006, the court would have agreed with the trial judge that this collateral material neither met the test of relevancy in section 275(1)(b) nor carried a significant probative value likely to outweigh the risk of prejudice to the proper administration of justice in terms of section 275(1)(c).

 

Miscarriage of Justice
[47] It only falls to record that the court accepts the Crown submission that, even if the evidence of the report of the 2006 incident had been wrongly excluded, no miscarriage of justice occurred. The court does not consider that the jury's determination of the appellant's guilt on charge 4 could have been materially affected by the existence of a partially false report relating to quite different circumstances and at a different time. In all these circumstances, the appeal against conviction must be refused.

 

APPEAL COURT, HIGH COURT OF JUSTICIARY

 

Lord Justice Clerk

Lord Clarke

Lord Menzies

Lord Brodie

Lady Cosgrove

 

 

[2013] HCJAC 22

Appeal No: XC159/11

 

OPINION OF LORD CLARKE

 

in the

 

APPEAL AGAINST CONVICTION

 

by

 

CJM (No 2)

Appellant;

against

 

HER MAJESTY'S ADVOCATE

 

Respondent:

_______

 

Act: K Stewart, QC, Crowe; John Pryde & Co SSC (for Michael S Allan, Aberdeen)

Alt: Wade, AD; the Crown Agent

 

14 February 2013

[48] I agree with your Lordship in the chair as to the disposal of this appeal. I do, however, depart from your Lordship's reasoning in certain material respects in reaching that result.

[49] The question that the present appeal raises is whether evidence that a complainer, in a case involving sexual offences, has told lies in the past to the effect that she has been the victim of sexual offending, may be admissible and, if so, in what circumstances, and under what conditions might it be admissible. I agree that that question falls to be considered first, and foremost, by reference to the common law.

[50] The overriding test for the admissibility of any evidence, in any case, is its relevance. As to what is relevant evidence, I would refer to the authorities, referred to by your Lordship in the chair, at para [28] of your Opinion, and I am happy to adopt your Lordship's remarks to the effect that in "determining whether a fact is relevant depends very much upon its context and the degree of connection between what is sought to be proved, or disproved, and the facts libelled". If, for example, there exists evidence that a complainer in a rape case has, on a number of occasions in the past, made allegations of rape, either against the accused, or against him and other persons, or simply against other persons, which can demonstrably be shown to have been untrue then, for myself, I have little doubt that the evidence of those false allegations having been made would pass the test of relevance. An innocent accused would reasonably think so. In the area of sexual offences, the judge or jury is not infrequently left with having to make a stark choice in resolving the issues of whether the alleged conduct took place and, if so, whether it was consensual, ultimately by having regard simply to what the complainer and accused themselves say about these matters. It has been said, by the Court of Appeal, in my judgment, with some justification, that in sexual cases "where the disputed issue is a sexual one between two persons in private, the difference between questions going to credit and questions going to the issue is reduced to vanishing point" (see Funderburk [1990] 1 WLR 587 at 597). In R v A (No.2) [2001] 2 WLR Lord Clyde at p 1593 was to similar effect when he said "Issues of consent and issues of credibility may well run so close to each other as almost to coincide". Questions of relevancy, in the law, always involve an element of judgment based on experience and raise matters of degree. The traditional basis for excluding evidence relating to matters not directly connected to the subject-matter of a charge, is to describe such evidence as relating to collateral matters. The problem with that approach is that the words "collateral" and "irrelevant" do not amount to the same thing. What might be described according to the ordinary meaning of the word as collateral might be highly relevant in assisting the court to decide the issue before it. I make these observations, without having failed to take into account the powerful dicta which appear in the authorities referred to by your Lordship in the chair at paras [30]-[33] of your Opinion. I need no persuasion that the conduct of litigation, whether civil or criminal, where appropriate, requires to be governed by considerations of experience and practicality. But, having regard to the over-arching requirement of a fair trial being provided to the accused, it may be necessary to scrutinise anxiously whether the term "collateral" is not being used too readily with the effect of excluding evidence, highly relevant to the accused's defence, having regard to the issues that the court has to resolve, the exclusion of which might properly be regarded as involving unfairness.

[51] In any event, as your Lordship in the chair has noted, there have been exceptions, in the past, to the "collateral" test. Your Lordship describes these "as arising, in situations where the collateral facts can be demonstrated more or less instantly and cannot be challenged". Your Lordship goes on to suggest that, having regard to the present case, "the principle behind the exception of allowing instantly verifiable material must be capable of being extended to admit evidence of recent convictions for wasting police time or similar crime, when the complainer has made false reports in relation to events similar to that charged on the indictment". The problem with the present case, according to your Lordship, is that there is no conviction for wasting police time. For my part, while I fully understand why your Lordship makes the distinction he does, on the grounds of practicality and expediency, I cannot accept that the test of relevancy falls to be determined simply by the nature of the evidence available to establish the falsity of the allegations. It seems to me that the means of establishing the previous allegations, and their falsity, cannot and should not be made subject to such a prescriptive regime. That is not to say, however, that when an application to lead any such evidence is made, the judge dealing with the matter should not consider most anxiously the basis upon which it is said that the false allegations will be established, in particular, and the nature and extent of the evidence to be put forward to establish (a) that any such allegations were made and that (b) they were untrue. Moreover, that careful scrutiny will require the judge to consider such matters as the connection in time and other circumstances between the content of the charge before the court, and the false allegations, and the context and circumstances in which those allegations were made. The more remote, in every sense of that word, the evidence in question appears to be from the elements of the charge before the court, the less relevant it will fall to be regarded and the judge may, in my view, be entitled to refuse to allow it as not being suitable material to assist the court in determining the case before it. Questions of proportionality would arise. The steps necessary to set up and challenge the false reports, may be held disproportionate to the probative value of the reports. Such an approach would, to a large extent, it seems to me, reflect the provisions of section 275(1)(c)" of the 1995 Act (without the statutory definition of "the proper administration of justice" contained in section 275(2)(b)). Applying such an approach to the present case, I agree that the 2006 allegation was properly excluded, having regard to the factors referred to in paragraph [34] of your Lordship in the chair's Opinion. I furthermore agree that, in any event, even if the 2006 allegation had been wrongly excluded, no miscarriage of justice occurred for the reasons given by your Lordship in the chair.

[52] For completeness, I require to add the following. I do not share the view of your Lordship in the chair that, "the making of a false allegation in relation to matters unconnected to the crime charged constitutes 'behaviour'" for the purposes of section 274 and 275 of the 1995 Act. In that respect, I do not read Lord Hope's dicta in DS (at para [46]) as having to be given the restricted meaning and scope which your Lordship suggests. It seems to me that the previous statement, whether with regard to the matters alleged in the charge itself, or other incident, would not fall within the meaning of "behaviour" for the purposes of the Act. As Lord Hope puts it, these matters, in any event, would have a bearing on the complainer's credibility and would not intrude upon her dignity and privacy. Such an approach, as Lord Hope points out, arises from the need to construe the statutory provisions, if possible, so as to be compatible with a fair trial. In R v A cited supra Lord Steyn, in referring to the English legislation which has a, broadly speaking, similar purpose to sections 274 and 275, said that the language of the statute had to be subordinated to "broader considerations of relevance". In that case the House of Lords held that although the legislature had pursued a legitimate objective in enacting the legislative provision in question (section 41 of the Youth Justice and Criminal Evidence Act 1999) to protect complainants, in sexual offence cases, from indignity and humiliating questioning and to correct the twin assumptions that a woman who had previous sexual intercourse was more likely to have consented on the occasion in question, and, in any event, was less credible, the defendant's right under article 6(1) to a fair trial was absolute and fundamental and would be infringed if he were denied the admission of relevant evidence where its absence led to his wrongful conviction.

[53] Your Lordship has invited the court to disapprove of the decision in the case of Ronald (No.1). This is not, of course, necessary for the disposal of the present case. While I might share some of the difficulties that your Lordship expresses in relation to the approach adopted in that case, it has to be noted that in the case of Green and Leech v HM Advocate 1983 SCCR 42, Lord Cameron, in his report in relation to fresh evidence in a rape appeal case, referred to the evidence of a psychiatrist, Dr Chapman, who had examined the complainer. In doing so, he said this, at page 49:

"It was perhaps unfortunate that the Crown was apparently wholly unaware of the girl's psychiatric history when the charge of rape was made, and that none of Dr Chapman's evidence was available at the trial. As already noted, Dr Chapman's evidence also chimed with that of Mrs Shewan in a remarkable degree as supporting her statement as to the girl's inordinate interest in sex and her readiness to allege sexual interference, ie sexual episodes in which she was the unwilling party. My clear impression, after hearing these witness, was that their evidence was of such a quality and relevance to the critical issue of consent as to have weighed very heavily with a jury ...".

 

The Lord Justice General (Lord Emslie), in giving the Opinion of the Court, said this, at page 50:

"The issue was in very fine balance and the jury's assessment of the complainer's credibility became of crucial importance. The additional evidence which we allowed to be heard bore very sharply upon that matter. It was evidence of great importance and was of such a quality and relevance to the issue of credibility and consent that it would have undoubtedly have weighed heavily with the jury if they had been able to hear it ... Without going into detail it showed, amongst other things, that the complainer was given to sexual fantasies, had an inordinate interest in sex, and was prone to making unwarranted accusations of rape and sexual interference on the part of various men, ages ranging from 90 downwards. She was also inclined to react to compromising situations in a hysterical way."

 

The court went on to decide that there had, in those circumstances, been a miscarriage of justice. In the case of HM Advocate v A 2005 SLT 975 Lord Macphail referred to the case of Leech and Green. It seems to me, therefore, that your Lordship's invitation to the court to disapprove of the approach taken in the case of Ronald (No.1) would require to be extended to disapproving the court's approach in the case of Green and Leech. As I have already noted, however, such a decision is not necessary for the disposal of the issue raised in the present case and, given the lack of discussion there was with counsel, in the present case, about this particular aspect of the law, I would prefer that the decision as to the correctness or otherwise of these previous decisions should be postponed to another more suitable occasion.


 

APPEAL COURT, HIGH COURT OF JUSTICIARY

 

Lord Justice Clerk

Lord Clarke

Lord Menzies

Lord Brodie

Lady Cosgrove

 

 

[2013] HCJAC 22

Appeal No: XC159/11

 

OPINION OF LORD MENZIES

 

in the

 

APPEAL AGAINST CONVICTION

 

by

 

CJM (No 2)

Appellant;

against

 

HER MAJESTY'S ADVOCATE

 

Respondent:

_______

 

Act: K Stewart, QC, Crowe; John Pryde & Co SSC (for Michael S Allan, Aberdeen)

Alt: Wade, AD; the Crown Agent

 

14 February 2013

[54] I am in complete agreement with the views expressed by your Lordship in the chair, and for these reasons I agree that this appeal should be refused.

[55] As your Lordship in the chair has explained, it is a general rule of Scots law that evidence of a collateral fact in a criminal trial is inadmissible, subject to an exception relating to instantly verifiable material which cannot be challenged. A conviction for wasting police time in relation to an allegation similar to the subject-matter of the charge on the indictment on which an accused person is being tried, would be one example of such material; it may be that other examples exist. The pragmatic considerations which underlie this rule have been explained by your Lordship in the chair, and may be readily understood.

[56] I am aware of nothing in principle, or authority, or statute which would justify a departure from this rule. It has the benefit of certainty, it avoids the risk that a jury will become distracted by a protracted consideration of other allegations not central to the facts which they have to determine, and it avoids the risk of causing further humiliation and distress to the complainer. It should also result in the indictment proceeding to trial with less delay than might be the case if questions of relevancy, proportionality and the bases on which previous false allegations will be established, are left to the decision of a judge at preliminary hearing. These practical considerations may be of some weight in considering the issue of the fairness of the trial which an accused will face. For my part, I see no justification for any extension of the common law rules which your Lordship in the chair has identified.


 

APPEAL COURT, HIGH COURT OF JUSTICIARY

 

Lord Justice Clerk

Lord Clarke

Lord Menzies

Lord Brodie

Lady Cosgrove

 

 

[2013] HCJAC 22

Appeal No: XC159/11

 

OPINION OF LORD BRODIE

 

in the

 

APPEAL AGAINST CONVICTION

 

by

 

CJM (No 2)

Appellant;

against

 

HER MAJESTY'S ADVOCATE

 

Respondent:

_______

 

Act: K Stewart, QC, Crowe; John Pryde & Co SSC (for Michael S Allan, Aberdeen)

Alt: Wade, AD; the Crown Agent

 

14 February 2013

[57] I am in agreement with the views expressed by your Lordship in the chair, and for these reasons I agree that this appeal should be refused.


 

APPEAL COURT, HIGH COURT OF JUSTICIARY

 

Lord Justice Clerk

Lord Clarke

Lord Menzies

Lord Brodie

Lady Cosgrove

 

 

[2013] HCJAC 22

Appeal No: XC159/11

 

OPINION OF LADY COSGROVE

 

in the

 

APPEAL AGAINST CONVICTION

 

by

 

CJM (No 2)

Appellant;

against

 

HER MAJESTY'S ADVOCATE

 

Respondent:

_______

 

Act: K Stewart, QC, Crowe; John Pryde & Co SSC (for Michael S Allan, Aberdeen)

Alt: Wade, AD; the Crown Agent

 

14 February 2013

[58] For the reasons given by your Lordship in the chair, I agree that this appeal should be refused.

[59] I only wish to add the following brief observations. Your Lordship in the chair refers to the recognised exception to the general rule against admitting evidence of a collateral fact in a criminal trial where the collateral fact can be demonstrated more or less instantly and cannot be challenged. I agree that the principle behind the exception of allowing "instantly verifiable" material must be capable of being extended to admit evidence of a conviction for a crime such as wasting police time where the complainer has made a previous false report in relation to an event similar to that charge on the indictment. The principle must also, in my view, be capable of being extended to allow evidence of an admission by a complainer of having previously made such a false allegation provided that admission was unequivocal and unqualified and related to a similar event.

[60] If an allegation against a complainer in a sexual offence case concerning her conduct on a previous occasion and designed to strike a blow at the crucial issue of her credibility in relation to sexual matters is disputed by her, fairness requires that she be given the opportunity to lead evidence in contradiction. If the evidence in respect of the earlier matter is to be of any assistance to the jury in their assessment of the weight to attach to the complainer's evidence on the charge before them, then it will "require to be tried as carefully as the issue before the Court" (Moorov v HM Advocate 1930 JC 68, Lord Sands at 87). The convenience and expediency arguments against such a careful inquiry in the course of a trial on another matter are clear. Not least of these are the risk that the jury's attention may be diverted from the real issue and that the statutory requirement of affording appropriate protection of a complainer's privacy and dignity may be compromised. It follows in my view that the circumstances in which the exceptions to the rule against collateral evidence apply require to be carefully circumscribed as proposed by your Lordship in the chair.

 


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