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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> A v. B [1895] ScotLR 32_297 (23 February 1895)
URL: http://www.bailii.org/scot/cases/ScotCS/1895/32SLR0297.html
Cite as: [1895] SLR 32_297, [1895] ScotLR 32_297
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SCOTTISH_SLR_Court_of_Session
Page: 297↓
Court of Session Outer House First Division.
Sheriff Court at Aberdeen.
v.
Facts:
The pursuer sued for damages on the ground that on two specified occasions the defender had ravished her.
Held that averments made by the pursuer to the effect that the defender was a man of brutal and licentious habits, and that on two specified occasions he had attempted to ravish other women, should be deleted from the record as irrelevant— Whyte v. Whyte, March 15, 1884, 11 R. 710, distinguished.
Observed that while the averments were irrelevant to the issues raised on record, and could not therefore be proved, it might be competent to cross—examine the defender on them for the purpose of testing his credibility on matters relating to character.
A raised an action of damages in the
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Sheriff Court of Aberdeen against B, averring that on two occasions specified, “notwithstanding her utmost endeavours to resist and escape from him, the defender succeeded in having carnal knowledge of her person forcibly and against her will.” The pursuer further averred (Cond. 2) “The defender is a man of brutal and licentious disposition, and for a number of years past he has sought systematically to gratify his lust by ravishing girls and young women;” and in Cond. 5 and 6, that the defender had, “in accordance with his system,” on two specified occasions in the years 1887 and 1893, attempted to ravish two other women. The defender pleaded that the pursuer's averments contained in articles 2, 5, and 6 of the condescendence were irrelevant, and should be expunged from the record.
On 5th December 1894 the Sheriff-Substitute ( Duncan Robertson) allowed both parties a proof of their averments.
On 12th December 1894 the Sheriff ( Guthrie Smith) recalled the interlocutor of the Sheriff-Substitute, “in so far as it allows a proof of the pursuer's averments in the second paragraph of article 2, and in articles 5 and 6 of her condescendence, which averments are hereby held as deleted from the record.
“ Note.—I think the articles proposed to be proved are clearly irrelevant to the issue raised on this record, which is, whether the defender committed a criminal assault on the pursuer on the day and at the place libelled. The rule on the subject is stated in Mr Justice Stephen's Law of Evidence, art. 10.
“If the pursuer is able by proper evidence to establish the charge which she prefers against the defender, she does not require any assistance from the inquiry which she seeks, and if the available evidence is insufficient she is not entitled to it. The case of Whyte v. Whyte, does not appear to me to be applicable, or to derogate from the rule as laid down by Mr Justice Stephen.”
The pursuer appealed to the First Division for jury trial.
The issues proposed by her were, whether on the two occasions specified in the record the defender had ravished her?
Argued for the appellant—If it could be proved that the defender was in the habit of assaulting women, that would be corroboration of the pursuer's averment that he had assaulted her. The averments ought therefore to be admitted as evidence. In the case of Whyte v. Whyte, March 15, 1884, 11 R. 710, evidence of the defender's indecent conduct with women other than the alleged paramour was held competent in corroboration of a charge of adultery. Following that analogy proof of the defender's conduct with other women was relevant evidence here. If he were allowed to rebut the pursuer's charges by producing proofs of her immoral conduct with other men—as he would be allowed if he could do so—it was only fair that she should be allowed to prove these averments.
Argued for the respondent—The case of Whyte v. Whyte was not analogous to this, for (1) the defender there set up his character as a clergyman as one of his defences, and it was therefore legitimate for the pursuer to impugn it; (2) in a case of divorce all incidents instructing a breach of duty on the part of one of the spouses might be legitimately proved, as, being of the same nature, they would form a cumulative case, but that principle was limited to divorce cases, and even in them to evidence touching the spouses themselves exclusively —King v. King, February 2, 1842, 4 D. 590; Stephen's Law of Evidence, art. 11; Lord Stowell's opinion in the case Forster v. Forster, December 6, 1790, 1 Hogg, C.R. 144, if it extended to any but divorce cases, went further than the law at present would go —Tolman v. Johnstone, 1860, 2 Foster & Finlason, 66; Taylor on Evidence, i. 329; Phillips & Arnold on Evidence, i. 510.
At advising—
The issues to be tried between the parties are whether, on two specified days of June 1894, the defender ravished the pursuer. What the pursuer wishes to prove under the articles in question is substantially whether in July 1893 the defender attempted to ravish another woman, and whether in April 1889 he attempted to ravish yet another woman. Article 2 is merely a general averment of system founded upon those two instances.
Now, it is quite plain that if these articles went to proof, the two collateral issues about the two other women would have to be tried out on the same scale as the main issues themselves; and this would be done, not because either of the other women claims it, but merely in order to lend some probability to this pursuer's case.
I cannot but feel that good sense is against such a proceeding, and I am satisfied that the law does not allow it.
In pronouncing any averment to be irrelevant to the issue, it is not implied that the matter averred has no bearing at all on the question in hand. For example, if the defender admitted at the trial that he had attempted to ravish those two other women, I think the jury might legitimately hold that this made it the more likely that he ravished the pursuer. But, then, courts of law are not bound to admit the ascertainment of every disputed fact which may contribute, however slightly or indirectly, towards the solution of the issue to be tried. Regard must be had to the limitations which time and human liability to confusion impose upon the conduct of all trials. Experience shows 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.
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I am for adhering to the interlocutor of the Sheriff. It may be right to add that, while the three articles are struck out of the record, this does not preclude the defender from being cross-examined about those two matters, for his credibility may be tested on matters going to character, although not relevant to the issues. Whatever his answer may be, however, it will not be competent for the pursuer to lead evidence on the subject.
The Court pronounced the following interlocutor :—
“Adhere to the interlocutor of the Sheriff dated 12th December 1894, in so far as it finds that the averments in the second paragraph of article 2 and in articles 5 and 6 of the condescendence for the pursuer are to be held as deleted from the record as irrelevant, and are not allowed to be remitted to probation : Approve of the said issues as adjusted and settled, and appoint the same to be the issues for the trial of the cause: Find the defender entitled to the expenses of the discussion upon the relevancy,’ &c.
Counsel for the Pursuer— W. Thompson. Agents— Douglas & Miller, W.S.
Counsel for the Defender— Glegg. Agents — Macpherson & Mackay, W.S.