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Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Her Majesty's Advocate v. MA [2007] ScotHC HCJ_15 (04 December 2007)
URL: http://www.bailii.org/scot/cases/ScotHC/2007/HCJ_15.html
Cite as: 2008 SCCR 84, [2007] ScotHC HCJ_15, [2007] HCJ 15, 2008 SCL 296, 2007 GWD 39-677
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HIGH COURT OF
JUSTICIARY 2007 HCJ15 |
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OPINION
LORD BRODIE In
the cause HER
MAJESTY'S ADVOCATE against M.A. ______________ |
For the Minuter: J MacDonald, Advocate; Charles Wood & Son,
Solicitors
For the Crown: McSporran, Solicitor Advocate, AD; Crown Agent
[1] The Applicant
is M.A. On
"on 14 November 2006 at [an address
in Fife] you did assault T G, c/o Fife Constabulary, Kirkcaldy and did remove
her trousers and pants, struggle with her, handle her breasts, push her onto a
couch, hold her down, force her legs apart and you did rape her."
[2] The preliminary hearing had originally
been fixed for
[4] For reasons that I shall attempt to
explain I had difficulty, when preparing for the preliminary hearing, in
understanding the basis upon which the Application was presented. My difficulty was not lessened by the information at paragraph 4 of the
Crown's written record of state of preparation which was as follows:
"An
application to admit evidence/questioning as to the prior sexual relationship
between the accused and the complainer would have been submitted but for
receipt of such an application by the defence to which the Crown does not
intend to object (insofar as it relates only to the admissibility of evidence
of the fact of that relationship)."
As was indicated in the written record, no application
had been lodged by the Crown.
[5] The Application was in the following
terms:
"1.
The following evidence is
sought to be elicited:
a. That between on or around 28 October 2006 and on or around
14 November 2006 the applicant and the complainer were engaged in a
relationship. They had sexual relations
on a number of occasions during said period.
On each occasion, the parties had sexual relations at the house of C N
in
b. That the applicant and the complainer had sexual relations
on the
evening of Saturday 11 November into the early hours of Sunday
12 November, both 2006. The sexual
relations took the form of kissing, fellatio and vaginal sex. This was the last occasion on which the
complainer and the minuter had sexual intercourse. The sexual relations occurred within the
living room of the property in
c. That on the evening of
2. The
nature of the proposed questioning is as follows:
a. To demonstrate that the events referred to in paragraph
1(a)-(c) took
place.
b. To demonstrate that the position of the complainer as to the
events
libelled and to her fear of the applicant, is untrue.
3.
The issues at the trial to
which the evidence is considered to be relevant are as follows:
c. The
guilt of the applicant.
d. The
reliability and credibility of the complainer.
4.
The reasons why the evidence
is considered to be relevant are as follows:
e. The evidence is material to the jury's assessment of the
reliability and credibility of the complainer.
f. The evidence is of a high probative value. It is essential to the Crown for the
purposes of conviction that the jury accept as reliable and credible the
evidence of the said complainer.
g. The evidence is accordingly exculpatory of the applicant,
for the foregoing reasons.
5. The
inferences which the applicant proposes to submit to the court that it should
draw from the evidence are as follows:
h. That
the complainer is not a reliable or credible witness.
i. That
the account by the complainer as to the events libelled is untrue."
[6] Section
274 of the 1995 Act prohibits, in the trial of a person charged with a sexual
offence, the admission of evidence or questioning designed to elicit evidence,
showing or tending to show that the complainer is not of good character; has
engaged in sexual behaviour not forming part of the charge; has engaged in
other behaviour as might form the inference that the complainer consented to
the acts that are the subject of the charge or is not a credible or reliable
witness; or has ever suffered from a condition or predisposition as might found
such an inference. On an application
being made to it in terms of section 275, the court may admit such evidence or
allow such questioning, but only if certain criteria are met. These provisions were introduced by the
Sexual Offences (Procedure and Evidence) (
"... section
275(1) of the 1995 Act sets out three tests which are cumulative. ...The first test is that the evidence must
relate only to a specific occurrence or occurrences of behaviour (sexual or
otherwise) or to specific facts which demonstrate the complainer's character or
any condition or predisposition to which the complainer is or has been
subject. ...The second test to be met is
that the occurrence or occurrences are relevant to establishing whether the
accused person is guilty of the offence with which he is charged. If those two tests are met the court must
then consider the third test which is that the probative value of the evidence
is significant and is likely to outweigh any risk of prejudice to the proper
administration of justice from its being led."
In the following paragraph of his
opinion Lord Hodge goes on to say that section 275(2)(b) of the Act provides
that in this context the proper administration of justice includes two
considerations, namely (a) appropriate protection of a complainer's dignity and
privacy and (b) ensuring that facts and circumstances of which a jury is made
aware are relevant to the issue which is to be put before the jury and
commensurate to the importance of that issue to the jury's verdict.
"...shall
be in writing and shall set out-
(a)
the evidence sought to be admitted
or elicited;
(b)
the nature of any questioning
proposed;
(c)
the issues at the trial to which
that evidence is considered to be relevant;
(d) the
reasons why that evidence is considered relevant to those issues;
(e) the
inferences which the applicant proposes to submit to the court that it should
draw from that evidence
...;"
Rule
21.5 of the Act of Adjournal provides that an application under section 275 (1)
shall be in Form 21.5. The application
must be copied to the other party. In
terms of section 72 (6) (b) (iii) any application under section 275 which has
been made before a preliminary hearing must, unless the court considers it
inappropriate to do so, be disposed of at the preliminary hearing. Sub-sections (6) and (7) impose further
procedural requirements on the court.
These are in the following terms:
"(6)
The court shall state its reasons for
its decision under subsection (1) above, and may make that decision subject to
conditions which may include compliance with directions issued by it.
(7)
Where a court admits evidence or
allows questioning under subsection (1) above, its decision to do so shall
include a statement-
(a)
of what items of evidence it is
admitting or lines of questioning it is allowing;
(b)
of the reasons for its conclusion
that the evidence to be admitted or to be elicited by the questioning is
admissible;
(c)
of the issues at the trial to which
it considers that that evidence is relevant."
[8] Thus, no doubt in pursuance of the
policy objectives identified by Lord Macfadyen and by the Lord Justice
Clerk in M (M) v HMA, Parliament has been careful to
impose quite precise requirements on an applicant who wishes to avoid the
restrictions laid down by section 274 and on the court when deciding upon such
an application (particularly if it decides to admit evidence or allow
questioning). This, I would suggest, has
some rather obvious consequences for the drafting of a section 275
application. At a minimum it must comply
with the mandatory statutory requirements set out in section 275 (3). By that I mean that details of the evidence,
questioning, issues, reasons, and inferences which are referred to in
paragraphs (a) to (e) of the sub-section are set out in the written application
in a reasonably specific and comprehensible manner. If I am wrong about that and that, as a
matter of competency, specification and comprehensibility are not required,
regard should be had to the role of the application as an advocacy document, by
which I mean a means of informing the court as to why the application is being
made and as an aid in persuading the court that the tests referred to by Lord
Hodge are met. Parties, it may be
assumed, will be familiar with their respective cases. The court, on the other hand, while it may be
able to gather something from the indictment, any special defence and the
documentary productions, if available, cannot know precisely how it is proposed
to prosecute and to defend the charge.
If it is to make a decision on a section 275 (1) application the court is likely to require some information,
specific to the instant case, and in sufficient detail to allow it to
understand why it is being invited to admit otherwise inadmissible evidence . In my opinion, that information should be
contained in the written application. Regard
should also be had to the obligations placed on the court by sub-sections (6)
and (7) to identify what evidence is admitted or questioning allowed, to give
reasons for its decision and to identify the issues at trial to which the
evidence is relevant. If evidence,
reasons and issues are not identified specifically and comprehensibly in the written
application, it will be the more the difficult for the court which considers
that fairness to the accused (or possibly even to the complainer) requires that
a prohibition imposed by section 274 be removed, to frame the statement
required by sub-section (7). The matter
is of practical importance because parties and the trial judge will need to
know what has been allowed and why.
[9] Turning
to the Application here, it admittedly follows Form 21.5 in referring to the
five numbered matters to be addressed.
Moreover, it identifies the evidence that it is sought to be admitted in
terms that are specific and that meet the requirement of section 275 (1) (a)
that the evidence will only relate to a specific occurrence or occurrences of
sexual behaviour. However, when it comes
to the matters of the nature of the questioning proposed (section 275 (3) (b),
Form 21.5 paragraph 2.) and the inferences to be drawn (section 275 (3) (e),
Form 21.5 paragraph 5.) I found the
Application uninformative. In the
matters of the issues at trial to which the evidence is considered relevant
(section 275 (3) (c), Form 21.5 paragraph 3.) and the reasons why that evidence
is considered relevant to those issues (section 275 (3) (d), Form 21.5
paragraph 4.) I regret that I found the
Application, looked at with no other information than what appeared in the
indictment, to be simply incomprehensible.
Putting it shortly, from a consideration of the Application together
with the indictment, I was unable to discern why it was that the applicant
contended that the identified evidence, which ex hypothesi was inadmissible by virtue of section 274, should
nevertheless be admitted having regard to the criteria set out in section
275. The Application lacked any sort of
explanation by reference to the way in which it was anticipated that the Crown
was going to present its case or the line which was to be taken by the defence
which required what would normally be inadmissible evidence to be led. In my view a failure, such as occurred here,
to identify issues specific to the case to which the evidence is considered to
be relevant and comprehensible and specific reasons why the evidence is
considered to be relevant, has the inevitable result that the application is
irrelevant and may, for that reason, be dismissed. Of course, to dismiss an application under
section 275 (1) simply because of the way in which the written application has
been drafted might be to deny the applicant a fair trial and clearly the court
must seek to avoid that. Accordingly,
when preparing for the hearing, in order better to understand what the issues might
be , I read the Crown productions, which include the transcripts of two police
interviews of the Applicant, conducted on 19 November 2006, Crown productions 5
and 6, and three medical reports, Crown productions 11, 12 and 13. I therefore had the benefit of that reading
when listening to counsel for the Applicant developing his submission in
support of the application under section 275 (1). In the course of that submission counsel
sought to support the relevance of the evidence referred to at paragraph 1 b.
of the Application as it being a possible explanation for certain bruising
noted on the complainer when examined by a forensic medical examiner on
[11] I heard from the Advocate Depute who confirmed what had been
outlined in his written record of
state of preparation. In reliance on the
defence Application he had not drafted a Crown application. He did not oppose the admission of the
evidence identified in paragraph 1.a. but sought to resist the admission of
what was identified in 1.b. and 1.c.
However, he confirmed that it was his intention to lead in evidence what
is recorded in the transcripts of the police interviews. As I understood him his intention was to lead
the whole of the two interviews. Having
read the transcripts it appeared to me that the Applicant had been forthcoming
in admitting to a sexual relationship with the complainer and had gone into
some detail as to his version of events, particularly about events at the time
of the alleged rape (which I would understand from the productions is said by
the complainer to have occurred in the early hours of the morning of Tuesday 14
November 2006) but also on the preceding days.
By the nature of their questioning, the interviewing officers had
encouraged him to do so. It would appear
that the Applicant accepted that he had been with the complainer during the
early hours of 14 November but he denied having had sexual intercourse with her
on that occasion and he denied rape, either on 14 November or any other
date. As I understand his position, the
last time on which he had sexual intercourse with the complainer was on an occasion
previous to 14 November. However,
on the evening of 14 November the complainer came to his place of work and
showed signs of affection towards him.
It was put to the Applicant by the police that the complainer was afraid
of him. He denied that and referred to
what he said had occurred on the evening of 14 November. If I have understood what the Applicant was
saying on police interview, the evidence identified in the Application will
have to be admitted in terms of section 275 (1), if the police interviews are
to be led. While I do not pretend to
know exactly what are the respective positions of parties here, the Advocate
Depute did not seek to disabuse me of my assumption that the interviews are
important to both parties in that they include admissions that are consistent
with the Crown case but that they also contain what appears to be a full and
spontaneous statement of his position by the Applicant at the time when the
allegation was first put to him, an allegation which he denied. The Advocate Depute confirmed that bruising
sustained by the complainer is relied on as part of the Crown case and that an
alternative explanation of that bruising could be relevant. He did not dispute that the complainer
showing the Applicant signs of affection after the alleged rape was relevant to
the defence position that no rape had occurred (although it may also be open to
other explanations).